Amicus Curiae Brief — Scheuer v. Rhodes

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PORES

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LIBRARY

AUG 27 1973 suPREME CouRT. U. 8

No. 72-1318

and

No. 72-914

in the

Supreme Court of the Anited States

OCTOBER TERM, 1973

ARTHUR KRAUSE, ADMINISTRATOR, Petitioner

v.

JAMES RHODES, et al., Respondents

ELAINE B. MILLER, ADMINISTRATRIX, Petitioner

v.

JAMES RHODES, et al., Respondents

SARAH SCHEUER, ADMINISTRATRIX, Petitioner

vz.

JAMES RHODES, et al., Respondents

On Writ of Colliieeri to the

United States Court of Appeals

for the Sixth Circuit

MOTION FOR LEAVE TO FILE

AND

BRIEF AMICUS CURIAE IN SUPPORT OF PETITIONERS,

ON BEHALF OF

THE NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE U.S.A.,

THE UNION OF AMERICAN HEBREW CONGREGATIONS,

THE BOARD OF CHURCH AND SOCIETY OF THE UNITED METHODIST CHURCH,

AND THE UNITED PRESBYTERIAN CHURCH IN THE U.S.A.,

AS AMICI CURIAE

as DAVID E. ENGDAHL

4375 Butler Circle

Boulder, Colorado 80303

(303) 443-2211, ext. 6911

August, 1973 Attorney for Amici

tthe

Supreme Court of the Rnited States

OCTOBER TERM, 1973

ARTHUR KRAUSE, ADMINISTRATOR, Petitioner

JAMES RHODES, et al., Respondents

ELAINE B. MILLER, ADMINISTRATRIX, Petitioner

JAMES RHODES, et al., ‘Respondénss

SARAH SCHEUER, ‘ADMINISTRATRIX, Petitioner

JAMES RHODES, et al., ‘Sinitiniahits

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

MOTION FOR LEAVE TO FILE

_ BRIEF AMICUS CURIAE

The National Council of the Churches of Christ in the U.S.A..,

The Union of American Hebrew Congregations, The Board of

Church and Society of the United Methodist Church, and The

United Presbyterian Church in the U.S.A. hereby respectfully

- move for leave to file the attached brief amicus curiae in these

cases. Oral consent of counsel for the Petitioners was obtained;

- but at the time of printing this motion written consent of the

Respondents has not been secured, so that this motion for

leave of court is necessary.

The National Council of the Churches of Christ in the U.S.A.

is a national organization of religious groups which, among

its other concerns, is devoted to the promotion of social justice

and the advancement of due process of law. The issues at

stake in the present review of these cases are of major im-

portance to these concerns of the National Council of Churches,

inasmuch as these issues are crucial to the legal enforcibility

of constitutionally secured human rights. With specific refer-

ence to the incident giving rise to these present cases, the

General Board of the National Council of Churches on

September 11, 1971, adopted a resolution urging that the

Plaintiffs-Petitioners in these cases, and others aggrieved by

that incident, “continue to seek a remedy in the civil courts.”

The interest of the National Council of Churches is not in

any way related to the prayer for monetary damages; rather,

the interest of the National Council of Churches is in enabling

the American system of justice to proceed to a fair deter-

mination of responsibility and accountability for the deaths

and injuries that occurred in the historic and unforgettable

tragedy out of which these cases arose. Furthermore, the

particular issues of law raised at this stage of these proceedings

are crucial to the enforcement of civil rights and liberties also

in other contexts, and therefore invoke the Council’s broadest

concerns for social justice in the United States.

The Union of American Hebrew Congregations is the central

congregational body of Reform Judaism. Its membership

consists of approximately seven hundred Reform Synagogues,

comprising approximately one million persons throughout the

United States. By virtue of its programs of religious action

and social action, the Union of American Hebrew Congrega-

tions is dedicated to the application of religious ideals to the

social problems of American life. The Union is concerned that

the process of justice proceed fairly to an accounting for the

iii

tragic event giving rise to these cases. In addition, the Union

is concerned for the indispensable requisites of enforcibility

of civil rights and civil liberties, which are decisively tested

by the issues in these cases.

The United Methodist Church is a religious body with

approximately ten million five hundred thousand members in

the United States. The Board of Church and Society is its

national agency with responsibility for social witness to the

Christian Gospel on a wide range of issues. Through its Depart-

ment of Law, Justice and Community Relations, the Board

of Church and Society of the United Methodist Church has

been deeply involved in seeking justice in the wake of the

shootings at Kent State University on May 4, 1970. Pursuant

to this active and long-standing concern for establishing an

accountability for the killing of four young people and the

wounding of nine others on that day, the Board of Church

and Society wishes to join as amicus curiae in these cases.

The United Presbyterian Church in the U.S.A. ‘is a religious

body with approximately three million members in the United

States. Sharing, as a part of its religious conviction and

Christian message, the concern for justice and the enforcibility

of legally protected human rights that has been articulated

by the other amici herein, the United Pre: »yterian Church in

the U.S.A. wishes to join in this brief.

Thus, representing the collective social conscience of several

millions of religious Americans, these amici move the Court

for leave to file the attached brief amicus curiae, supporting

the position of Petitioners in these cases. It is the hope of

amici that this unusual chorus of religious voices will empha-

size the profound moral and constitutional significance of the

issues presented for decision here.

- Respectfully submitted,

DAVID E. ENGDAHL

4375 ButlerCircle |

Boulder, Colorado 80303

(303) 443-2211, ext. 6911

August, 1973 Attorney for Amici

No. 72-1318 -

and

No. 72-914

in the

Supreme Court of the Anited States

OCTOBER TERM, 1973

ARTHUR KRAUSE, ADMINISTRATOR, Petitioner

v

JAMES RHODES, et al., Respondents

ELAINE B. MILLER, ADMINISTRATRIX, Petitioner

JAMES RHODES, et al., Respondents

SARAH SCHEUER, ADMINISTRATRIX, Petitioner

v.

JAMES RHODES, et al., Respondents

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit .

BRIEF OF

THE NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE U.S.A.,

THE UNION OF AMERICAN HEBREW CONGREGATIONS,

THE BOARD OF CHURCH AND SOCIETY OF THE UNITED METHODIST CHURCH,

AND THE UNITED PRESBYTERIAN CHURCH IN THE U.S.A..,

AS AMICI CURIAE

DAVID E. ENGDAHL

4375 Butler Circle

Boulder, Colorado 80303

(303) 443-2211, ext. 6911

August, 1973 Attorney for Amici

pe Re ee) ee ee ere

“cpleegame cot Sete Bh ec Oe Pay een ee |

SUMMARY OF ARGUMENT 3... iis..58. ish eee ccs 2

ARGUMENT ics kas aby baba eok nbs oat haw es ones dai 3

I. FACTUAL CONTEXT OF THETISSUES........ 3

II. LEGAL CONTEXT OF THE ISSUES .......... 13

III. THE ISSUES FRAMED BY THE

CORT Peete MOP EERIMIEE ob bs ch cc hence 18

A. FACTUAL ASSUMPTIONS CONTRARY

TO THE UNANSWERED COMPLAINTS ... 18

B. THE ELEVENTH"AMENDMENT ......... 19

C. PERSONAL PRIVILEGE OR

IMMUNITY OF EXECUTIVE

og Ee ee Pee ree ere 22

D. THE DIVERSITY CLAIMS IN KRAUSE

ec eit caus RCE Ee ee Toe 26

E. THE UNITED STATES NOT A

oct pint eieunigkt $c uci Re EOC OREO ETE Neer 27

COPIES 5 hes baie as Ook ces suweke ees

Vili

TABLE OF AUTHORITIES

Cases

Page

Boor wv. Matton, 360 US. SUG CIPS R ss nc cn 5 kee is 23

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972) .... 23

Bivens v. Unknown Named Agents,

Oe ec CEE 6 5k ob eek ow aR eke doe ees 20, 21, 24

Chastleton v. Sinclair, 264 U.S. 543 (1924) ............ 16

Constantin v. Smith, 57 F.2d 227 (E.D. Tex. 1932) ...... 15

ee ek ae eS 19

~ Duncan v. Kahanamoku, 327 U.S. 304 (1946) ©.......... 15

Ex parte Milligan, 71 U.S. (4 Wall.) 2(1866)............ 15

Ex parte Young, 209 U.S. 123 (1902) ..............-. 20

Faubus v. United States, 254 F.2d 797,

Re RN iis os ih ee hea es 15

Gilligan v. Morgan, if See | 6 et F

a a ns wn em 16, 27

Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949),

ae a eee 23

eo Pe eee my OS) er ee 23

Hearon v. Calus, 178 S.C. 381, 183 S.E. 13 (1935) ....... 15

Larson v. Domestic & Foreign Corp.,

Be I oo i i iw bv ks cs iw ko es 19

Milligan v. Hovey, 17 F. Cas. 380 (No. 9605)

Meee UE og hs ei xu cca ee ae vase 23

Mitchell v. Clark, 110 U.S. 633 (1GB4) .. ww ww ce ees 23

Moyer v. Peabody, 213 U.S. 78 (1909) ............. 16, 24

Moyer v. Peabody, 148 Fed. 870

Cee WUE 3 ok os iv coun sd cue ce auaeneee tc 25

ix

Cases (Continued)

: Page

Pierson v. Ray, 386 U.S. 547 (1967).......... aa; 2a; 24

Poindexter v. Greenhow, 114 U.S. 270(1885) ..... 19, 20, 23

Reid + Cowast, S56 US. 3 Car oo he iho e5 es 14

Russell Petroleum Co. v. Walker, 162 Okla. 216,

OP Pr en Ce ee kei os eben i cies 15

Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) ........ 21

State of Ohio v. Coit, 8 Ohio Dec. 62

ne COR oe oe Ka ee eee ean eeseeesems 15

Sterling v. Constantin, 287 U.S. 378 (1932)....... 15, 16, 20,

24, 25, 26

United States v. Lee, 106 U.S. 196 (1882).............. 23

United States ex rel. Palmer v. Adams,

a Oe Pr i Oe, bo we ck ie ee eR ESSE 15

United States v. Phillips, 33 F. Supp. 261 (N.D.

Ce Fs PE, Bak ec i ih oeRccdxeauks 15

Wilson & Co. v. Freeman, 179 F. Supp. 520

CER; en ec oa eee ee eee 15

Constitutions, Statutes and Rules

Pe. es ee ee geek unc ues cu ba cnkos ceeun 13

ee ee ee ie eb evs hae ek kal eens 13

ee re Os 6 ak hv dk vee a here ec cee an 18

ee es re Ec a ok OX oc kk ed eke were 18

Ohio Rev. Codes 65623:57 (Sam.) i oon a Ge bot Hae 27

IS USE. Gael ..3 5s. Wa ek bleu dec es caries carer 12

Se Shs Oe oko hac eee i ae 12, 18

We UR. WEOOD cece est badbankevereee’ 18. 10, 21, 22, 26

x

Other Authorities

Page

Comment, Constitutional Law — The Power of a

Governor to Proclaim Martial Law and Use State

Military Forces to Suppress Campus Demonstra-

a rs Bis Fe OE AOD 6 cece vce keieass 16

Comment, Martial Law, 42 So. Cal. L. Rev. 546

a ae hs Ns ok oe ee eres cite 16

119 Cong. Rec. E207 et seq. (daily ed.,

Be rk 4 as Sh ha wie oh oN Oe OES 8

119 Cong. Rec. H3615 (Daily ed., May 10, 1973) ....... 17

er te EE 6 5 oo i sw ch we web eyes a=

Engdahl, Immunity and Accountability for

Positive Governmental Wrongs, 44 Colo.

Oe eg «RAR NEDS rape ee eee ee 9, 0, 21,224,203

Engdahl, Soldiers, Riots and Revolution: The Law

and History of Military Troops in Civil

Disorders, 57 Iowa L. Rev. 1 (1971) .............. 16, 26

Law Revision Center, A Comprehensive Study of

the Use of Military Troops in Civil Disorders,

oe Ee et he: ee rare eae 16

Mutter, Some Observations on Military Involve-

ment in Domestic Disorders, 29 Fed. B. J.

22. See ee ou eas Soe ee 0 ee 16

Note, Constitutional Law—Martial Law,

as I Fe ROE Fs vas Wks Wes eco inns 16

Note, Martial Law and the National Guard,

Oe ak ee ik os Sino ke oe 85S de eee 16

Report of the President’s Commission on

ek Beer eer er 4,8

Wiener, Martial Law Today, 55 A.B.A.J. 723

RRMA RG Se er eee re arr ae aCe ere er 16, 24

5 Wright & Miller, Federal Practice &

I an iv nc Kee es oe aes sees 18

nme

eae ee

No. 72-1318

and

No. 72-914

in the

Supreme Court of the Mnited States

OCTOBER TERM, 1973

ARTHUR KRAUSE, ADMINISTRATOR, Petitioner

v.

JAMES RHODES, et al., Respondents

ELAINE B. MILLER, ADMINISTRATRIX, Petitioner

v.

JAMES RHODES, et al., Respondents

SARAH SCHEUER, ADMINISTRATRIX, Petitioner

v.

JAMES RHODES, et al., Respondents

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF

THE NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE U.S.A.,

THE UNION OF AMERICAN HEBREW CONGREGATIONS,

THE BOARD OF CHURCH AND SOCIETY OF THE UNITED METHODIST CHURCH,

AND THE UNITED PRESBYTERIAN CHURCH IN THE U.S.A.,

AS AMICI CURIAE

STATEMENT OF INTEREST

OF AMICI CURIAE

The interests of the several amici in this litigation are set

forth in the Motion for Leave to File. bound together with

this brief, at page i supra.

2

The arguments of amici in this brief support the position

of Petitioners in the three cases: Arthur Krause, Elaine B.

Miller, and Sarah Scheuer.

SUMMARY OF ARGUMENT

Because of the remarkable behavior of the courts below in

disregarding the allegations of the unanswered complaints,

postulating factual premises of their own contrivance, and

charging the plaintiffs’ lawyers with deliberate attempts at

deception, justice in this review proceeding requires a careful

review of what is judicially noticeable concerning the events

giving rise to these complaints. Part I of this brief is an orderly

recapitulation of such judicially noticeable facts as reported in

official government documents.

Because .the causes of action stated in plaintiffs’ complaints

depend in part upon important propositions of constitutional

law which have sometimes been the subject of confusion and

disagreement, it is necessary to clarify and document these

propositions in order for the character of plaintiffs’ claims to

be fully understood. Part II of this brief explains how the

complaints invoke these constitutional propositions, and docu-

ments the propositions by reference to numerous cases and

other authorities.

Only in the context of the factual and constitutional setting

thus disclosed can the specific issues framed by the certiorari

petitions be perceived in their full and profound significance.

Part III of this brief examines those issues and argues that:

(A) The courts below improperly assumed facts contrary to

the unanswered complaints; (B) In holding the eleventh

amendment a bar to these actions the courts below flew in

the face of consistent and vigorous contrary rulings by this

Court; (C) In creating an absolute personal privilege or immu-

nity for unconstitutional acts of executive officials the Court

of Appeals departed from precedent and destroyed an in-

dispensable safeguard of constitutional rights; (D) The Courts

below improperly ignored the diversity claims of plaintiffs

Krause and Miller; and (E) The United States is not a necessary

party in this litigation.

3

ARGUMENT

I. FACTUAL CONTEXT OF THE ISSUES

These cases were dismissed by the District Court before any

answer had been filed. There has been no trial of the facts.

Ordinarily a reviewing court would therefore judge the facts,

at this stage, from the allegations of the complaints. In these

cases, however, both the District Court and the Court of

Appeals went beyond the complaints, relying upon their own

recollection of hearsay reports and purported judicial notice

to support their postulation of facts contrary to the allegations

of the complaints. The propriety or impropriety of their doing

so is discussed later in this brief; but the fact that they did

so makes it both appropriate and necessary for this Court, in

reviewing the decisions, to have as full a picture of the facts

which are truly cognizable by judicial notice as is possible.

The majority opinion in the Court of Appeals postulates an

“insurrection” at Kent State University on May 4, 1970, and

also postulates that plaintiffs’ decedents were killed “during”

a “riot” at Kent. Judge O’Sullivan, concurring, charges

plaintiffs’ attorneys with “‘dissembling,” and asserts that the

pleadings ‘‘were clearly contrived to hide rather than disclose

the true background of the involved events.” These factual

postulations and charges so color the decisions being reviewed

that this Court cannot perform its own task of review without

taking fully into account what is now public knowledge about

the Kent State event.

The circumstances giving rise to the present cases were the

subject of exhaustive investigation by an official Commission

authorized by the Congress and appointed by the President

of the United States. The Report of that Commission, the

President’s Commission on Campus Unrest, which was trans-

mitted to the President on September 26, 1970, is a proper

subject of judicial notice. 8 Cyc. Fed. Pro. $26.222. The

Commission’s factual conclusions may not control in the face

of competent evidence at a trial; but where, as here, complaints

have been dismissed before answer, the Commission’s findings

are a better source of factual premises than anything relied

upon by the courts below. Pages 233-290 of the Report of the

4

President’s Commission on Campus Unrest, supplemented by

120 pages of photographs, constitute the Commission’s Special

Report on Kent State. The account which follows is a con-

densation of the Commission’s Special Report, emphasizing

salient points.

Northeastern Ohio late in April, 1970, was beset with wild-

cat trucker strikes. To deal with striker violence, the Governor

(defendant Rhodes), on April 29 issued a proclamation calling

out the National Guard. That proclamation mentioned seven

counties of the state by name but Portage County, the

location of Kent, was not one of those specified. Several things

are notable about that April 29 proclamation. Although the

preamble recited that sheriffs and police had proved “unable

with their own forces to bring about a cessation of violence,”

and that “the Mayors of many Ohio cities . . . have urgently

requested” National Guard aid, these findings had to do with

the truck strike disturbances, not with any prior or anticipated

campus unrest. Furthermore, while the military forces were

to “act in aid of the civil authorities,” the import of this was

merely that the military commanders should “consult with

{the civilian authorities] to the extent necessary to determine

the objects to be accomplished.”” Notwithstanding the rule of

the cases in Ohio and elsewhere, including this Court, as will

be detailed in the next section of this brief, the proclamation

specifically provided that ‘“‘the procedure of execution” was

to be left to “the discretion of the commanding military

officer designated by the Adjutant General.’ No control over

the discretion of the military officers was reserved by the

proclamation even to the Governor himself; the Adjutant

General was left free to designate whatever and however many

units he chose, and in his own discretion “to take action

necessary for the restoration of order throughout the State of

Ohio.” (When a few days later the language, “throughout the

State,” was given application to localities as to which no

formal gubernatorial finding of civilian incapacity had been

made, the tremendous scope of this abdication of civilian

authority into military hands would become clear.)

While the Ohio National Guard was on duty for the truckers’

strikes, the President’s war policy in Southeast Asia took a

5

dramatic new turn. On the night of April 30, the President

announced that he had ordered United States troops into

Cambodia. The daylight hours of May 1 at Kent State were

marked only by some peaceful protest assemblies; but that

evening a series of incidents more or less related to unhappiness

over the new turn in war policy produced about $10,000 in

property damage to about 15 business buildings in downtown

Kent, some minor property damage on the University campus,

two police injuries from rocks or other missiles, and 15 arrests.

During the night, at the request of the Mayor of Kent, a

National Guard liaison officer was sent to survey the situation

in Kent; but no military troops were authorized or sent.

On May 2, among several other steps taken to prevent a

recurrence of violence and disorder, an injunction was procured

against damage or destruction of buildings or other property.

There was no injunction, however, against assemblies or rallies,

a fact that was specifically pointed out in leaflets distributed

on the University campus by University officials. Late in the

afternoon of May 2, in the face of rumored new violence,

the Mayor of Kent telephoned the Governor's office with a

request for National Guard assistance. The jurisdiction of the

Mayor of the City of Kent over the campus of Kent State

University was dubious at best. City police in Kent regarded

the campus as outside their jurisdiction, and subject to the

University’s campus police. The University officials privy to

the Mayor’s request for the National Guard were under the

impression that the Guard was being requested for duty only

in the city of Kent and not on the Kent State campus. No

University official ever requested National Guard assistance,

on that day or on any other.

Considering the language of his April 29 proclamation,

“throughout the State of Ohio,”’ to be adequate to cover the

Kent situation, the Governor verbally authorized the commit-

ment of guardsmen to the City of Kent without any written

proclamation. (A post facto proclamation covering Kent and

the Kent State University campus was issued three days later,

on May 5, after the Guard had been present there for more

than two days and after the shootings giving rise to this

litigation had already occurred.) Guardsmen bivouaced at

6

Akron, ten miles from Kent, were placed on standby. In the

evening on May 2, a crowd growing to about 1,000 persons

gathered on the campus, and after a short while moved

toward the ROTC building. No effort was made by the campus

police or any other civilian forces to prevent persons in the

crowd from stoning or otherwise damaging the ROTC building.

Even after the building had been set afire, no police were

deployed until after firemen had arrived and been forced to

withdraw. Only then did the campus police appear, using tear

gas to drive the crowd away from the burning ROTC building.

Meanwhile, a few minutes before the ROTC fire had been

started, the Mayor of Kent (but. no University official) had

secured the dispatch of the alerted National Guardsmen into

the City of Kent.

Upon arriving in Kent and conferring with the Mayor, but

without consulting with or requesting or receiving permission

from any University official, the Adjutant General-of Ohio

(defendant Del Corso) sent National Guard troops onto the

campus. By midnight, without benefit of any request or

instructions from University officials, the National Guard had

cleared the campus with tear gas, and held it secure.

On the morning of May 3 the Governor arrived in the City

of Kent, and held a news conference in which he vehemently

denounced campus violence and pledged to “eradicate the

problem.” After two hours the Governor left the city, having

done nothing to resolve the uncertainties about applicable rules

and relative authority that still had the various civilian officials

and peace forces confused. The University officials, in partic-

ular, (including defendant White) surmised that their authority

_ had been preempted, and abdicated to the National Guard.

That evening, at about 9 p.m., the National Guard dispersed

a crowd from the Campus Commons, and after two hours of

ensuing non-violent demonstrations, a half-hour of rock throw-

ing, tear gas, minor injuries and arrests ended the day of May 3.

May 4 was a Monday. Classes were scheduled and held as

usual. Both at the University and in the City of Kent, the

ordinary functioning of institutions was usuimpaired. The courts

were open and operating, and city as well as University

7

officials performed their duties without interference. No

buildings or public places were occupied or obstructed.

There still had not been any request or invitation from

University officials for assistance or protection by the National

Guard. The University President assumed his authority had

been superseded, and he simply resigned himself to the

Guard’s control. As the morning advanced, plans for a noon

rally were rumored around the campus. No civilian authority

had forbidden such a rally, but the National Guard commander

determined that it should be banned. By about 11:45 a.m.,

about 500 persons had gathered on the Campus Commons.

No acts of violence had taken place. No speakers were inciting

the crowd. No unlawful intent was apparent in the assembly.

Nevertheless the troop commander (defendant Canterbury)

ordered that the crowd be dispersed.

The troops were ordered to “lock and load” their weapons

thus chambering live ammunition ready to fire. A University

policeman riding with riflemen in a National Guard jeep

approached the crowd to convey the order to disperse, and

some rock throwing and chanting began. A few hundred more

students by now had joined the crowd, and the Guardsmen,

fixing bayonets and firing tear gas, began to move them out.

For the fext thirty minutes, tear gas and epithets, and

occasionally rocks, filled the air. One group of the guardsmen

(consisting of Cavalry Troop G and some other units) drove a

part of the crowd past the administration building and down

a hill to a parking lot adjoining a football practice field. For

about ten minutes the guardsmen remained on the practice

field, separated from the parking lot by a high chain link fence.

Rocks and tear gas cannisters were lobbed back and forth over

the fence. At one point the members of Cavalry Troop G

huddled in an apparent conference; at another point they

knelt and aimed their rifles at the crowd. After about ten

minutes on the practice field, the guardsmen were ordered by »

the Adjutant General to return up the hill. As they did so, the

men of Troop G lagged and fell out of formation as they

looked back over their shoulders at the dwindling parking lot

crowd. At the crest of the hill, several members of Troop G

(

turned in unison approximately 135 degrees, retraced a few

steps, and began to fire. Other guardsmen then turned and

joined in the fusilade. The thirteen-second barrage of more

than 60 shots was concentrated in the parking lot, more than

100 yards away.

In the Conclusion to its Special Report on Kent State, the

President’s Commission had this to say of the events which

most proximately gave rise to the litigation now before this

Court: “The May 4 rally began as a peaceful assembly on the

Commons-—the traditional site of student assemblies. Even if

the Guard had authority to prohibit a peaceful gathering—a

question that is at least debatable—the decision to disperse

the noon rally was a serious error. The timing and manner of

the dispersal were disastrous. Many students were legitimately

_in the area as they went to and from class. . . . The rally was

peaceful, and there was no apparent impending violence. Only

when the Guard attempted to disperse the rally did some

students react violently.” Report of the President's Commission

on Campus Unrest 288 (1970). And with specific reference to

the fusilade that caused the deaths of these plaintiffs’ decedents,

the Commission concluded: “The indiscriminate firing of rifles

into a crowd of students and the deaths that followed were

unnecessary, unwarranted, and inexcusable.” /d. at 289.

In addition to the President’s Commission on Campus Unrest,

the FBI investigated the Kent State shootings, compiling some

8,000 pages of evidence. The FBI report was reviewed by a

team of lawyers in the Department of Justice, who prepared a

Summary of the FBI findings. A copy of that Justice Depart-

ment Summary was given by Jerris Leonard, then head of the

Civil Rights Division, to Senator Stephen Young of Ohio.

Young secured the publication of the Summary (without

Justice Department approval) as Chapter 4 of I. F. Stone’s

book, The Killings at Kent State: How Murder Went Un-

punished (1971). The entire Justice Department Summary has

since been published in the Congressional Record. 119 Cong.

Rec., E207 et seq. (daily ed., Jan. 15, 1973). This Justice

Department Summary, as an official government document.

9

. is also properly subject to judicial notice. 8 Cyc. Fed. Pro.

§ 26.222. Among the conclusions stated in the Justice Depart-

ment Summary are the following:

“Just prior to the time the Guard left its position on

the practice field, members of Troop G [107th Armored

Cavalry] were ordered to kneel and aim their weapons

at the students in the parking lot south of Prentice Hall.

They did so, but did not fire. One person, however,

probably an officer, at this point did fire a pistol in the

ee

“The Guard was then ordered to regroup and move

back up the hill past Taylor Hall.”

“The crowd on top of the hill parted as the Guard

advanced and allowed it to pass through, apparently with-

out resistance. When the Guard reached the crest of

Blanket Hill by the southeast corner of Taylor Hall at

about 12:25 p.m., they faced the students following them

and fired their weapons. Four students were killed and

nine were wounded.”

“Six Guardsmen, including two sergeants and Captain

Srp of Troop G stated pointedly that the lives of the

members of the Guard were not in danger and that it was

not a shooting situation.”

“We have some reason to believe that the claim by the

National Guard that their lives were endangered by the

students was fabricated subsequent to the event. The

apparent volunteering by some Guardsmen of the fact that

their lives were not in danger gives rise to some suspicions.”

“{One guardsman] admitted that his life was not in

danger and that he fired indiscriminately into the crowd.

He further stated that the Guardsmen had gotten together

after the shooting and decided to fabricate the story that

they were in danger of serious wer harm or death from

the students.”

po ered ee eee ee eA

10

“Also, a chaplain of Troop G spoke with many members

of the National Guard and stated that they were unable

to explain to him why they fired their weapons.”

“No verbal warning was given to the students immedi-

ately prior to the time the Guardsmen fired.”

“There was no request by any Guardsmen that tear

gas be used.”

“There was no request from any Guardsman for per-

mission to fire his weapon.”

“The Guardsmen were not surrounded.”

“No Guardsman claims he was hit with rocks imme-

diately prior to the firing.”

“There was no sniper.”

“The FBI conducted an extensive search and has found

nothing to indicate that any person other than a Guards-

man fired a weapon.”

“At the time of the shooting, the National Guard

clearly did not believe that they were being fired upon.”

“Each person who admits firing into the crowd has

some degree of experience in riot control. None are

novices.”

“A minimum of 54 shots were fired by a minimum of

29 of the 78 members of the National Guard at Taylor

Hall in the space of approximately 11 seconds.”

“Five persons interviewed in Troop G, the group of

Guardsmen closest to Taylor Hall, admit firing a total of

eight shots into the crowd or at a specific student.”

“Some Guardsmen (unknown as yet) had to be physi-

cally restrained from continuing to fire their weapons.”

——

11

“Four students were killed, nine others were wounded,

three seriously. Of the students who were killed, Jeff

Miller’s body was found 85-90 yards from the Guard.

de Allison Krause fell about 1 10 yards away. William Schroeder

and Sandy Scheuer were approximately 130 yards away

from the Guard when they were shot.”

“Although both Miller and Krause had probably been

in the front ranks of the demonstrators initially, neither

was in a position to pose even a remote danger to the

National Guard at the time of the firing. Sandy Scheuer,

as best as we can determine, was on her way to a speech

therapy class. We do not know whether Schroeder parti-

cipated in any way in the confrontation that day.”

No person shot was closer than 20 yards from the

guardsmen. One injured person was 37 yards away;

another, 75 yards; another, 95 or 100 yards; another,

110 yards; another, 125 or 130 yards; another, 160 yards;

and the other, 245 or 250 yards.

“Seven students were shot from the side and four were

shot from the rear.”

“Of the 13 Kent State students shot, none, so far as we

know, were associated with either the disruption in Kent

on Friday night, May 1, 1970, or the burning of the ROTC

building on Saturday, May 2, 1970.”

“As far as we have been able to determine, Schroeder,

Scheuer, Cleary, MacKenzie, Russell and Wrentmore were

merely spectators to the confrontation.”

“Aside entirely from any questions of specific intent

on the part of the Guardsmen or a predisposition to use

their weapons, we do not know what started the shooting.”

Notwithstanding these conclusions of the Justice Department

lawyers who reviewed the FBI investigation, John N. Mitchell,

who at the time was Attorney General (although also involved

12

in the President’s re-election campaign), refused to permit a

federal grand jury investigation of the Kent State shootings to

determine whether charges under 18 U.S.C. §241 or §242

should be brought. However, on May 10, 1973, and subse-

quently to at least two representatives of the press who made

the information public, Deputy Assistant Attorney General

K. William O’Connor, who was head of the Criminal Section

of the Civil Rights Division at the time when the Justice

Department Summary was prepared, acknowledged that the

evidence in the Department’s hands is (and was then) ample

to support the indictment of several guardsmen involved in

the shooting for violation of 18 U.S.C. §242.

At a press conference on June 15, 1973, Assistant Attorney

General J. Stanley Pottinger, who became head of the Civil

Rights Division in February, 1973, acknowledged that he had

personally undertaken a full-scale review of the Justice Depart-

ment files on the Kent State matter. On August 3, 1973,

Pottinger announced at another press conference that on his

recommendation Attorney General Elliot L. Richardson had

authorized a formal reopening of the Kent State case, and that

a federal grand jury investigation of the shootings may be

undertaken. In addition, the staff of a subcommittee of the

House Judiciary Committee chaired by Representative Edwards

of California is conducting an investigation, looking toward

forthcoming subcommittee hearings into the actions of former

Ohio governor (and defendant) Rhodes and others in connection

with the events giving rise to this litigation.

These are all facts of common public knowledge which are

subject to judicial notice. ‘It is against the background of these

facts, not to mention the allegations of the unanswered

complaints, that the decisions of the courts below must be

judged. And in this light Judge Weick’s postulation of

“insurrection” and “riot,” and Judge O’Sullivan’s charges of

“dissembling” and contrivance “to hide rather than disclose

the true background of the involved events,’ stand out as

utterly shocking premises for the decision of the Court of

Appeals.

13

Il. LEGAL CONTEXT OF THE ISSUES

The complaints in these cases, in obedience to Fed. R. Civ.

P. &a) (2), confine themselves to a “short and plain statement

of the claim.” They do not detail all that has been recited

heretofore in this brief. But in conformity with Fed. R. Civ.

P. 8 (f), “so construed as to do substantial justice” they aptly

allege facts supporting causes of action entitling the plaintiffs

to judicial relief. In order for the significance of the lower

courts’ immunity holdings to be appreciated, it is necessary to

consider the character of the causes of action stated, which

would merit relief but for the immunity bar.

The allegations of the complaints with regard to defendant

Rhodes are that as governor of Ohio he caused armed state

military troops to be placed on the Kent State University

campus without sufficient cause, authorized them to disperse

lawful assemblies, permitted them to carry guns loaded with

live ammunition, and failed to keep them under proper control.

Facts supporting these allegations, found by the President’s

Commission or the Justice Department or both (and therefore

susceptible of judicial notice for purposes of this present

review) and provable by the plaintiffs if they are ever permitted

a trial, include Rhodes’ verbal authorization of the commit-

ment of guardsmen to the City of Kent late in the afternoon

of May 2, without formal finding or proclamation of need

and without any request from University officials, and while

civilian institutions were functioning; his delegation of power,

without effective civilian supervision, to ‘the discretion of the

commanding military officer designated by the Adjutant

General;” his failure to clarify lines of responsibility and

command during his presence in Kent on May 3; his inflam-

matory public comments at that time; and his failure to order

strict military troop subordination to the local civilian officials

at the scene.

The allegations with regard to defendants Del Corso and

Canterbury are that as Adjutant General and Assistant Adjutant

General and the chief military officers on the scene they ordered

their troops onto the campus without sufficient cause, with

indifference and disregard for the lives of students; authorized

14

them to disperse lawful assemblies; authorized them to use

loaded weapons; and failed to keep them under control so as to

prevent them from shooting the decedents. Among the facts

supporting these allegations, judicially noticeable for purposes

of' reviewing these dismissals and provable if plaintiffs are per-

mitted a trial, are these defendants’ deployment of troops on

the campus without request, authorization, or supervision by

any University official, while civilian institutions were function-

ing and University operations were unimpaired; their orders

to “lock and load” weapons; Canterbury’s order to disperse

the May 4 assembly at a time when it had not become and was

not threatening to become either disorderly or unlawful, and

at a time and in a manner posing unreasonable dangers to

innocents and bystanders; and their failure either to prevent

or to immediately stop the “unnecessary, unwarranted, and

inexcusable” sustained fusilade directed against distant persons

by troops under their direct and immediate command.

The allegation against defendant White is that as President

of the University he omitted to act when his actions could have

decreased the risk of shootings such as that which occurred.

Among the supporting facts are that White failed to assert his

legitimate authority over military troops on the campus, ab-

dicated his responsibility, acquiesced in the arrogation of

authority by defendants Del Corso and Canterbury, and

countenanced the deprivations of constitutional rights which

it was his responsibility and duty to prevent.

If these allegations with regard to defendants Rhodes, Del

Corso, Canterbury, and White are proved, they will make out

claims for violation of some of the most fundamental, essential,

and frequently reiterated safeguards of constitutional liberty

and domestic security. First, the constitutional rights of

peacable assembly and petition are fundamental, and cannot

be infringed at the whim even of civilian, let alone military,

convenience. “The concept that the Bill of Rights and other

constitutional protections against arbitrary government are

inoperative when: they become inconvenient or when expedience

dictates otherwise is a very dangerous doctrine and if allowed

to flourish would destroy the benefit of a written Constitution

and undermine the basis of our Government.” Reid v. Covert,

15

354 U.S. 1, 14(1956). “No doctrine, involving more pernicious

consequences, was ever invented by the wit of man than that

any of [the Constitution’s] provisions can be suspended during

any of the great exigencies of government.” Ex parte Milligan,

71 U.S. (4 Wall.) 2, 121 (1866). In these cases, these defendants’

acts as alleged in the complaints caused the intentional in-

fringement of constitutional rights of assembly and petition,

and also, in consequence, of the decedents’ rights to life.

Second, the right to civilian government—to the primacy of

civilian law and officials and the complete subordination of

military personnel and power—is a right that is constitutionally

secured and protected. The rule of due process in the historic

tradition of English, and even more emphatically, of American

law. dictates that so long as civilian institutions are capable of

functioning military personnel may be utilized to deal with

civilians only as an essentially civilian supplemental force,

completely under*the control and direction of local civilian

Officials, subject to the rules and restraints of civilian law, and

neither bound nor protected by the rules of military law.

Specifically, due process forbids the displacement of regular

civilian officials’ judgment and discretion by the supervening

power of a military commander, even as to the “procedure of

execution” of designated objectives. Ohio’s own jurisprudence

recognizes this principle. State of Ohio v. Coit, 8 Ohio Dec. 62

(C.P. 1897). It has been reaffirmed time and time again by this

Court and by other courts. E.g., Duncan v. Kahanamoku, 327

U.S. 304 (1946); Sterling v. Constantin, 287 U.S. 378, 392,

403-04 (1932); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 121

(1866); Faubus v. United States, 254 F.2d 797, 806-07 (8th

Cir. 1958); Constantin v. Smith, 57 F.2d 227, 236, 238-39

(E.D. Tex. 1932); United States ex rel. Palmer v. Adams,

26 F.2d 141, 144-45 (D. Colo. 1928); United States v. Phillips,

33 F. Supp. 261, 269 (N.D. Okla.), vacated because of

erroneous use of three-judge court, 312 U.S. 246 (single judge

thereafter entered identical decree); Russell Petroleum Co. v.

Walker, 162 Okla. 216, 223-24, 19 P.2d 582, 588-89 (1933);

Hearon v. Calus, 178 S.C. 381, 410, 183 S.E. 13, 25 (1935);

see also Wilson & Co. v. Freeman, 179 F. Supp. 520, 527 (D.

Minn. 1959). Comprehensive historical research and legal

analysis has reinforced the judicially reiterated rule. E.g., Note,

16

Constitutional Law—Martial Law, 75 W.Va. L. Rev. 143 (1973);

Note, Martial Law and the National Guard, 18 N.Y. L. F. 216

(1972); The Law Revision Center, A Comprehensive Study of the

Use of Military Troops in Civil Disorders, 43 Colo. L. Rev. 399

(1972); Engdahl, Soldiers, Riots, and Revolution: The Law

and History of Military Troops in Civil Disorders, 57 lowa L.

Rev. 1 (1971); Comment, Constitutional Law—The Power of

a Governor to Proclaim Martial Law and Use State Military

Forces to Suppress Campus Demonstrations, 59 Ky. L. J. 547

(1970); Comment, Martial Law, 42 So. Cal. L. Rev. 546 (1969);

Mutter, Some Observations on Military Involvement in Domestic

Disorders, 29 Fed. B. J. 59 (1969). For a succinct discussion

see Brief of The Law Revision Center as Amicus Curiae in

Gilligan v. Morgan, U.S. _.. (No. 71-1553, decided

June 21, 1973).

The contrary practice flourished for a time earlier in the

century, under the impression that a governor’s discretion in

superseding civilian rule with military power was not subject

to review. That practice of utilizing troops in derogation of

civilian law and ordinary civilian officials, according to

Frederick Bernays Wiener, “rested on an unfortunate Supreme

Court dictum in Moyer v. Peabody,” 213 U.S. 78 (1909).

Wiener, Martial Law Today, 55 A.B.A.J. 723, 724(1969).The

dictum, by Justice Holmes for the Court, was that “the

Governor’s declaration that a state of insurrection existed is

conclusive of that fact.” 213 U.S. at 83. Holmes himself later

acknowledged, in a different context, the impermissibility of

letting a branch of government decide conclusively for itself

when the circumstances prerequisite to extraordinary powers

are present. Chastleton v. Sinclair, 264 U.S. 543, 547 (1924).

But with regard to the habit of governors and National Guard

commanders to supersede civilian law and officials on pretext

of emergency, as Frederick Bernays Wiener noted, “It took the

decision in Sterling v. Constantin, [287 U.S. 378] handed

down in 1932, to put an end to such outrages,” Wiener, supra,

55 A.B.A.J. at 724.

Regrettably, in the forty years since Sterling the lessons of

history and the precepts of due process have faded from

recollection again. In the period since January 1, 1968,

military troops have been utilized in domestic situations more

7

frequently than during any comparable period in American

history; and as the facts giving rise to this present litigation

illustrate, they are commonly used in violation of the rules of

civilian due process heretofore enforced by this Court. Legisla-

tors at the present time have under active consideration proposals

to more effectively implement the constitutional standards for

employment of military troops in domestic emergencies. See,

eg., 119 Cong. Rec. H3615 (Daily ed., May 10, 1973)

(remarks of Congressman Seiberling of Ohio). Reaffirmation

of these historic principles by this Court at this time would be

of substantial aid to the Congress. Proof of the urgent need

for such reaffirmation is presented by the opinion of the Court

of Appeals in the cases now under review, relying explicitly

upon the “unfortunate Supreme Court dictum” in Moyer v.

Peabody to hold that a state chief executive’s actions with

respect to the use of military troops in times of purported

emergency must not be subjected to judicial review.

The allegations of the complaints against the named and

unnamed officers and members of the Ohio National Guard

allegedly involved in the shootings at Kent State are that they

each, or persons under their direct command, acting under

color of state law, without legal justification or pursuant to

patently unlawful orders intentionally, willfully, wantonly,

recklessly, and maliciously fired live ammunition at decedents

and other persons, in disregard of the lives and safety of

decedents and the others. Among the supporting facts are the

behavior of Cavalry Troop G on the football practice field,

huddling and then kneeling to aim rifles at persons on the

other side of the fence as one guardsman, apparently an officer,

fired a pistol shot, perhaps as a signal; that Troop’s disarray

on ascending the hill; the unison of the about-face at the crest

of the hill; the retracing of steps before firing; the distance of

the victims from the firing guardsmen; the lack of any threat

from the students to the guardsmen at or immediately before

the firing; the sustained nature and long duration of the

fusilade; the need for physical restraint to make some guards-

men cease firing; and the apparent contrivance of false excuses

and justifications afterwards. Facts such as these, in the

knowledge of the Department of Justice, have persuaded

Deputy Assistant Attorney General O’Connor that several of

18

the guardsmen are indictable under 18 U.S.C. § 242, as stated

earlier in this brief. It is inconceivable that such facts, if proved,

would make out no civil cause of action. In addition to a cause

of action for wrongful death under state law, where the facts

show such summary deprivation of life or imposition of grave

bodily injury arbitrarily by officers of and on behalf of the

state those facts make out a cause of action under the federal

Civil Rights laws.

The allegations of these complaints against defendants

Rhodes, Del Corso, Canterbury, White, and the named and un-

named officers and members of the Ohio National Guard thus

clearly state causes of action under 42 U.S.C. § 1983, in addi-

tion to, in the cases of plaintiffs Krause and Miller, state law

causes of action determinable in federal court on diversity

grounds. It is these manifest causes of action that the lower

courts in these cases have barred, by erecting barriers of immu-

nity to dismiss the complaints before answer and without

allowing the plaintiffs any chance to prove their allegations at

trial.

Ill. THE ISSUES FRAMED BY THE CERTIORARI

PETITION

A. Factual Assumptions Contrary to the

Unanswered Complaints

Seldom if ever has any case demonstrated so poignantly the

importance of the principle that for purposes of a motion to

dismiss under Fed. R. Civ. P. 12 (b) (1), just as under 12 (b) (6),

the uncontroverted allegations of a complaint must be taken as

true. 5 Wright & Miller, Federal Practice & Procedure $1350,

at pp. 551-52; $1357, at pp. 594-96. The insistence by the

District Court and by the majority of the Court of Appeals in

these cases upon their own preconceived view of the untried

facts, to the point of accusing the plaintiffs’ counsel of

deliberate deception, indelibly marks the decisions below as

sheer feats of will.

19

B. The Eleventh Amendment

Both the District Court and the Court of Appeals in these

cases held that the plaintiffs’ complaints could not be enter-

tained because of the eleventh amendment.

It is true that under the doctrine of Larson v. Domestic &

Foreign Corp., 337 U.S. 682 (1949), it is sometimes possible

to view a suit which names only government officials personally

as defendants, as being “‘in substance” a suit against the state

itself for eleventh amendment purposes. For a detailed analysis

of the complicated and confused intellectual process by which

the doctrine announced in Larson evolved, see Engdahl,

Immunity and Accountability for Positive Governmental

Wrongs, 44 Colo. L. Rev. 1, 22-8, 32-41 (1972). However, the

Larson doctrine is subject to at least one uniformly recognized

exception: that a suit naming only government officials person-

ally as defendants cannot be viewed as “in substance” a suit

against the state itself when the acts alleged as giving rise to the

cause of action are acts which are prohibited by the Constitution

or which violate constitutional rights. This exception was

explicitly recognized in Dugan v. Rank, 372 U.S. 609, 621-22

(1963). Although the majority below purported to rely upon

Dugan, they apparently ignored Dugan's recognition of this

exception to the Larson rule. As detailed in Part II of this

brief, the complaints in these present cases explicitly and un-

equivocally allege facts showing violations of fundamental

constitutional rights under color of state law.

The majority below made much of the supposed interference

with the functions of state officers that would purportedly

result from judicial entertainment of these complaints. But the

Supreme Court answered that fear long ago, explaining that

the “fancied inconvenience” of interference which might result

from allowing suits of officers for their unconstitutional acts

is seen to “vanish . . . at once upon the suggestion that such

interference is not possible, except when the government seeks

to [act] . . . contrary to law. . . and in violation of the Con-

stitution of the United States.” Poindexter v. Greenhow, 114

U.S. 270 (1885).

20

Indeed, precisely the proposition now espoused by the Court

of Appeals—that suits against officers personally for their un-

constitutional acts can be barred by the eleventh amendment—

was urged upon and categorically repudiated by the Supreme

Court in the Poindexter case, supra. This Court at that time

denounced this very proposition as “the doctrine of absolutism,

pure, simple, and naked; and of communism .. .;” and this

Court declared that “[t]he doctrine is not to be tolerated.

The whole frame and scheme of the political institutions of

this country, State and Federal, protest against it.” 114 U.S.

at 291. If that proposition were sound, constitutional rights

would be largely unenforceable, and the pretense of con-

stitutional restraints upon government would become a farce.

The contrary rule, which holds the eleventh amendment in-

applicable to suits against officers for unconstitutional acts, is

illustrated by Ex parte Young, 209 U.S. 123 (1902). The

majority below dismissed Young as “‘inapposite” because Young

was an action for injunction, whereas the present complaints

seek damages. But it is equitable relief, not relief in damages,

which is extraordinary. The present cases are a fortiori to

Young. Indeed, it has always been taken for granted that the

reason why equitable relief against an officer’s unconstitutional

action is available is simply that the remedy at law in damages,

available as a matter of course, might be inadequate. See, e.g.,

Sterling v.. Constantin, 287 U.S. 378 (1932). Relief in damages

against officers personally for their unlawful or unconstitutional

actions had been regularly awarded for more than a century

before Young was decided. See, Engdahl, /mmunity and

Accountability for Positive Governmental Wrongs, 44 Colo. L.

Rev. 1, 14-21 (1972), and cases there cited. Suits for unlawful

or unconstitutional acts against federal government Officials

personally were already familiar and traditional when the

Reconstruction Congress provided a comparable federal remedy

for constitutional violations by state government officials by

enacting what is now 42 U.S.C. §1983. Although the traditional

practice for enforcing constitutional rights may for a time have

been lost sight of, the essential principle underlying it was

very recently reasserted by this Court in Bivens r. Unknown

Named Agents, 403 U.S. 388 (1971), recognizing a cause. of

action for damages against federal officials personally for

21

violation of constitutional rights. In the present case, involving

state officials, the enactment by Congress of 42 U.S.C. § 1983

makes judicial creation of the remedy unnecessary; but the

same considerations that compelled creation of the remedy

in Bivens preclude the efforts that have been made by the

lower courts here to emasculate § 1983.

Liability under 42 U.S.C. §1983 “is entirely personal in

nature intended to be satisfied out of the individual’s own

pocket.” Sostre v. McGinnis, 442 F.2d 178, 205 (2d Cir. 1971).

By its terms § 1983 reaches only acts under color of state law,

which ordinarily will be acts of state officials. The adoption

by the courts below of the heretofore consistently denounced

and rejected proposition that such a suit can be barred by the

eleventh amendment, .is tantamount to a judicial repeal of

§ 1983. It is no wonder that no precedent can be found to

support their decision.

Justice would be better served with respect to all parties if

instead of continuing the tradition of enforcing limitations

upon the government by suits against individual officers, this

Court were to hold that the fourteenth and some other amend-

ments modify the earlier eleventh amendment, so as to make

possible direct suits for redress against the state itself, leaving

the state to deal as it chooses with its own faithless servants.

By that rationale or any of several others, supported by ample

reason and precedent, the harshness which sometimes charac-

terizes the traditional remedy could be avoided without

eliminating the right of redress for constitutional wrongs. See

the discussion in support of such an approach in Engdahl,

Immunity and Accountability for Positive Governmental

Wrongs, 44 Colo. L. Rev. 1, 60-77 (1972). To date, however,

this Court has not chosen to follow that course. So long as

redress against the state itself is not allowed, the right to

recover from officers personally on proof of allegations like

those in the complaints in these cases cannot be frustrated by

interposition of the eleventh amendment, without candidly

abandoning the pretense that ours is a system of government

limited by law.

22

C. Personal Privilege or Immunity of

Executive Officials

Unlike the District Court, the Court of Appeals in these

cases was not content to base the dismissals upon untenable

eleventh amendment grounds, but added as an alternative

rationale an unprecedented rule of categorical and unqualified

personal privilege or personal immunity for executive officials.

In the words of Judge Weick’s opinion for the majority, “since

the courts have granted to themselves absolute immunity, it

would seem incongruous for them not to extend the same

privilege to the Executive.”

This is not a question of first impression. This Court has

fully considered the matter, and has found that applying

different rules of personal privilege to executive officials than

to judicial or even legislative officials is not “incongruous” at

all. The difference between judicial immunity and the far more

limited privilege allowable to executive officials under 42 U.S.C.

§ 1983 was confirmed by this Court in Pierson v. Ray, 386 U.S.

547 (1967). The absolute privilege or immunity enjoyed by

judicial (and also by legislative) officials is supported by sound

public policy, centuries of legal history, and even some con-

stitutional language. See Engdahl, Jmmunity and Accountability

for Positive Governmental Wrongs, 44 Colo. L. Rev. 1, 42-7

(1972). But an absolute privilege or immunity for executive

officials is supported by none of these.

The most generous rule of personal privilege or immunity

for executive officials that has ever been approved by this

Court for application under 42 U.S.C. § 1983 is that approved

in Pierson v. Ray, 386 U.S. 547 (1967), allowing executive

officials a defense of good faith and probable cause. There can

be no doubt that the allegations of the unanswered complaints

in these cases, taken as true for purposes of Fed..R. Civ. P. 12

(b), negate both good faith and probable cause.

In point of historical fact, the traditional rule in American

law was that executive officials were personally liable for un-

constitutional acts even notwithstanding good faith, probable

cause, noble intentions, or obedience to orders. Numerous

23

cases and authorities illustrating this traditional rule and ex-

plaining why it has adhered to so rigorously are cited and

discussed in Engdahl, Jmmunity and Accountability for Positive

Governmental Wrongs, 44 Colo. L. Rev. 1, 14-20, 47-51 (1972).

Post-Civil War federal statutes purporting to immunize executive

officials were held unconstitutional under the federal Con-

stitution by lower courts. E.g., Griffin v. Wilcox, 21 Ind. 370,

372-373 (1863); Milligan v. Hovey, 17 F. Cas. 380, 381 (No.

9605) (C.C.D. Ind. 1871). While the Supreme Court never had

Occasion to pass squarely upon the validity of these statutes,

there are strong indications that if it had the Court would have

agreed that insofar as they purported to confer immunity for

unconstitutional acts those statutes were void. See, eg.,

Poindexter v. Greenhow, 114 U.S. 270 (1885); Mitchell v.

Clark, 110 U.S. 633, 648-49 (1884) (opinion of Field, J,

speaking to a point not reached by majority); United States v.

Lee, 106 U.S. 196 (1882). It was not until the twentieth

century that a few courts, and then some commentators, failing

to review the American precedents with the care that was

required, began to resort to the pre-Revolutionary ““common-

law” rule of executive official privilege and consider it

applicable even to positive torts. The etiology of that error is

examined in Engdahl, supra, 44 Colo. L. Rev. at 51-4.

A generous rule of privilege was countenanced, at least for

a time, by the Second Circuit Court of Appeals, with respect

to actions against federal officials as distinguished from actions

under 42 U.S.C. § 1983. Gregoire v. Biddle, 177 F.2d 579

(2d Cir. 1949), cert. denied, 339 U.S. 949 (1950). More

recently, however, the same Second Circuit Court of Appeals

itself apparently recognized the unwisdom of the Gregoire rule,

and applied instead the much less generous privilege rule of

good faith and probable cause that had been approved by this

Court in Pierson v. Ray, supra. Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 456 F.2d 1339

(2d Cir. 1972).

Some language from Gregoire was quoted in dicta by

Mr. Justice Harlan in Barr v. Matteo, 360 U.S. 564, 571-72

(1959); but Barr involved a federal rather than a state official,

did not arise under a specific statute like §1983 specially

24

authorizing the relief that was sought, and most important,

did not involve any alleged infringement of constitutional

rights. Justice Harlan himself was acutely aware that no such

generous privilege can be extended to executive officials where

violations of constitutional rights are concerned: Harlan joined

in the Court’s opinion in Pierson v. Ray, supra, allowing

executive officials only the defense of good faith and probable

cause where constitutional rights were infringed; and Harlan’s

concurring opinion in Bivens v. Unknown Named Agents, 403

U.S. 388, 398 et seq. (1971), while not addressing the personal

privilege point, is an eloquent statement of the importance of

affording redress in damages for constitutional wrongs.

Consequently the decision below, contriving a wholly novel

rule of absolute personal executive immunity, constitutes a

departure from American constitutional tradition that is of

radical proportions indeed.

The Court of Appeals endeavored to reinforce its unpre-

cedented ruling, at least insofar as it dealt with the governor,

defendant Rhodes, by referring to Moyer v. Peabody, 212 US.

178 (1909). Earlier in this brief it was pointed out that the

language in Moyer relied upon below has been characterized

by the most noted contemporary American authority on

military law as “an unfortunate Supreme Court dictum,”

which regrettably gave colorable justification to many instances

of “phony” martial law earlier in this century until this Court’s

decision in Sterling v. Constantin, 287 U.S. 378 (1932) at last

“put an end to such outrages.” Frederick Bernays Wiener,

Martial Law Today, 55 A.B.A.J. 723, 724 (1969). Because of

the treatment given them below, however, the language of

Peabody and the later holding in Sterling -v. Constantin must

be more closely examined here.

The dictum in Moyer suggested that a governor’s finding of

the circumstances justifying supersession of ordinary civilian

officials and procedures (“insurrection”) was conclusive and

could not be questioned in court. 213 U.S. at 83. Following

this suggestion, the Court of Appeals in these present cases

held, “nor should we make [state chief executives’] actions

in this respect in times of emergency, subject to judicial

25

review.” But the Moyer dictum was wrong and this Court has

refused to follow it; in Sterling v. Constantin, supra, notwith-

standing the dictum in Moyer, this Court reviewed the facts

which a governor had found to justify supersession of ordinary,

civilian officials and procedures, held that they did not, and

found the governor’s military acts in derogation of civilian

laws and officials to be unlawful.

In Moyer the Court had also suggested that military troops

could lawfully imprison or even shoot citizens “without

sufficient reason.” 212 U.S. at 84. But in Sterling v. Constantin,

the Court took a closer look at the facts that had been alleged

in Moyer, and found (like the Circuit Court in Moyer had

found, see Moyer v. Peabody, 148 Fed. 870 (C.C.D. Colo.

1906) ) that because of its “direct relation” to the solution of

the problem the arrest and detention of Mr. Moyer had been

reasonable; and with the facts of Moyer so reinterpreted the

Sterling Court cautioned that “the general language of the

[Moyer] opinion must be taken in connection with the point

actually decided.” 287 U.S. at 400. As thus reinterpreted in

Sterling, whatever privilege Moyer might afford is limited to

acts which are judicially found in retrospect to have been

directly related to a lawful mission; and even this privilege

pertains to the employment of troops in what the Moyer Court

had postulated as an actual “insurrection,” not to mere civil

disorder, and certainly not to the dispersal of a peaceful

assembly.

Under Sterling, it is recognized that the determination

whether exigencies require the use of military aid for the pur-

pose of faithfully executing the civilian laws is a determination

to be made conclusively by the governor. 287 U.S. at 399. It

is also recognized that there is “a permitted range of honest

judgment as to the measures to be taken in meeting force with

force, in suppressing violence and restoring order .. . .” 287 U.S.

at 399-400. This latitude, in effect, allows a defense of good

faith and probable cause. 287 U.S. at 400. But as the Court

held in Sterling, this does not mean that a governor or anyone

who acts under him can supersede civilian law and authorities

with military officers and force, and escape judicial scrutiny

by his own self-serving declaration of necessity. “What are the

26

allowable limits of military discretion, and whether or not they

have been overstepped in a particular case, are judicial

questions.” 287 U.S. at 401. “When there is a substantial

showing that the exertion of state power has overriden private

rights secured by that Constitution, the subject is necessarily:

one for judicial inquiry in an appropriate proceeding directed

against the individuals charged with the transgression.”’ 287 U.S.

at 398.

Sterling cannot be distinguished from these present cases on

the ground that in Sterling the governor had eo nomine declared

“martial law.” If that were a point of distinction at all, it would

strengthen these plaintiffs’ case; for here the displacement of

ordinary civilian authority and the disregard of ordinary law

y-and constitutional rights occurred in the absence of any formal

proclamation that civilian law was disabled. Thus if anything

the present cases are a fortiori to Sterling. Actually, however,

the presence or absence of any sort of declaration is not really

a point of distinction. The displacement of civilian by military

authority, as distinguished from the enlistment of aid from

military units under strict obedience to local civil officers and

law, is the de facto imposition of martial law, and is forbidden

by the rule of due process. See Engdahl, Soldiers, Riots, and

Revolution: The Law and History of Military Troops in Civil

Disorders, 57 lowa L. Rev. 1, 70 n. 324 (1971). And Sterling

held that such a constitutional violation is necessarily a matter

for judicial inquiry “in an appropriate proceeding directed

against the individuals charged with the transgression.” 287 U.S.

at 398.

42 US.C. §1983 affords the appropriate proceeding and

remedy. These plaintiffs only ask their rightful opportunity

to prove the transgression.

D. The Diversity Claims in Krause and Miller

As Judge Celebrezze in part V of his dissenting opinion in

the Court of Appeals pointed out, two of the three cases now

before this Court—Krause and Miller—state causes of. action

under state law. which were brought within the District Court’s

jurisdiction on diversity grounds. The District Court and the

27

majority in the Court of Appeals completely disregarded these

diversity claims. The only thing to be added to Judge Cele-

brezze’s excellent discussion of this aspect of these cases is that

Ohio, by statute, specifically countenances damage actions

against National Guardsmen for acts done on active duty in

civil disorder situations which constitute “willful or wanton

misconduct.”” Ohio Revised Code $5823.37 (Supp.). The

allegations in the Krause and Miller complaints incontrovertibly

allege acts of “willful or wanton misconduct.”

E. The United States Not a Necessary Party

In what seems scarcely more than makeweight, the majority

below held that the United States was a necessary party to

these cases because a decision could implicate the training and

weaponry of the National Guard, for which the United States

bears some responsibility.

The complaints do allege that the defendant guardsmen were

inadequately trained and improperly permitted to use loaded

weapons. That, however, was not accountable to the United

States. This Court has already found, in Gilligan v. Morgan,

USS. , 93 S. Ct. 2440 (1973), that at the time of the

events giving rise to these complaints Ohio’s training and

weaponry practices for civil disorders were out of compliance

with United States policy for the National Guard. Neither the

affirmative unlawful acts nor the negligent or reckless acts

charged against the various defendants in these cases in any

way implicate the United States, nor will the interests of the

United States be affected by adjudication of these cases. This

ground of the decision below is patently spurious.

CONCLUSION

Restraint in the face of alleged facts so egregious as those

presented in these complaints and judicial conduct such as that

indulged in by the courts below, is exceedingly difficult. But

perhaps this is an instance when eloquent declamations would

detract from the force of the naked facts themselves.

28

This Court’s current docket contains cases presenting in

several different contexts historic questions concerning the

amenability of the executive branch of government to the

restraints of constitutional and ordinary law. These present

cases are among them. These cases, however, while historic, are

not unprecedented. The principles for their resolution are

thoroughly settled by prior decisions. And Anglo-American

history also records the grave misfortunes that are risked when

those well-settled principles are disregarded.

All that these plaintiffs ask is the opportunity to prove the

allegations of their complaints. The deepest traditions of our

law demand that they have that opportunity. The question is

simply whether this Court will allow it.

Respectfully submitted,

David E. Engdahl

4375 Butler Circle

Boulder, Colorado 80303

(303) 443-2211, ext. 6911

Attorney for Amici,

The National Council of the

Churches of Christ in the

U.S.A.

The Union of American Hebrew

Congregations.

The Board of Church and Society

of the United Methodist

Church, and

The United Presbyterian Church

in the U.S.A.