Before DUFFY, Chief Judge, and HASTINGS and PARKINSON, Circuit Judges.
This suit was brought to recover damages under the Federal Civil Rights Act, 42 U..S.C.A. § 1981 et seq. Defendants Lynch and Eichholz were the Sheriff and Deputy Sheriff, respectively, of DuPage County, Illinois. Defendant Daw was a Justice of the Peace in that County. Defendants Guild and Douglas were, respectively, the State's Attorney and the Assistant State's Attorney of DuPage County. The District Court granted the defendants' motion to dismiss the amended complaint.
Count I of the complaint charges a conspiracy under Title 42 U.S.C.A. § 1985. Count II charges, under Title 42 U.S.C.A. § 1983, a deprivation of the rights, privileges and immunities secured by the Constitution and laws of the United States. Count III is in the nature of a conspiracy count under 42 U.S.C.A. § 1986.
The complaint charges plaintiffs were arrested by defendant Eichholz on November 13, 1955, near DuPage County Forest Preserve District No. 13, known as Rocky Glen Forest Preserve. The complaint alleges that plaintiffs had been engaged in hunting wild game with legally authorized firearms. It is alleged Eichholz refused to advise plaintiffs of the grounds for their arrest although requested to do so, and compelled plaintiffs to drive a distance of thirty miles to the county jail at Wheaton, and to appear before Justice of the Peace Daw. The complaint alleges there were magistrates and justices of the peace available many miles closer to the place of arrest than Wheaton.
The complaint alleges plaintiffs were held in custody for a long period of time,*fn1 until a complaint was filed charging violation of a DuPage County Ordinance by carrying firearms in a forest preserve.Bail was set at $100 each which the plaintiffs furnished.
A date was set for trial before Justice of the Peace Daw, whereupon plaintiffs filed a demand for trial by jury. Plaintiffs were advised on December 6, 1955 that a trial would be had before Justice of the Peace Daw on December 8, 1955, in the village of West Chicago, Illinois, "a great distance"*fn2 from the city of Wheaton, Illinois. On December 8, when plaintiffs appeared with their attorney and witnesses, the defendant Douglas moved the court over the objection of plaintiffs' counsel, to enter a nolle prosequi, and that this was done despite the fact that on December 5, 1955 defendant Douglas, unknown to plaintiffs, had secured a criminal information in the County Court of DuPage County charging each plaintiff with the same violation as had been charged before Justice Daw.
The complaint charges that as plaintiffs were leaving the courtroom of Justice Daw, they were again placed under arrest by defendant Lynch's deputies, and transported to the county jail at Wheaton; that an excessive bail of $1,000 was set, and the plaintiffs were committed to jail until they had raised such bail. Later, the amount of such bail was reduced to $200 for each plaintiff. Trial by jury was held in the county court of DuPage County and the plaintiffs herein were found not guilty.
We may agree that the conduct of the various defendants herein, if true, was reprehensible. The fixing of bail at $1,000 when the maximum fine for the offense charged was $200 was without any justification whatsoever. The dismissing of the original charge after requiring plaintiffs and their attorneys to be present from a distance and bringing the same charge in another court for later trial, would seem to be a clear abuse of authority. Nevertheless, we must determine whether, assuming the allegations of the complaint to be true, the defendants may be held liable under the Federal Civil Rights Act.
Plaintiffs argue that the Federal Civil Rights Act gives a right of action to every individual whose federal rights have been trespassed upon under color of law, and that the statute makes no exceptions for judicial officers, quasi-judicial officers and law-enforcing officers. Plaintiffs point out that § 1983 states that "every person" shall be liable to the party injured. This argument finds support in the case of Picking v. Pennsylvania Railroad Co., 3 Cir., 151 F.2d 240, 248-250. The court there held that certain well-recognized common law immunities have been abrogated by Congress.
The views expressed in Picking represent a minority view. The argument there made has been considered and rejected by the First, Sixth, Seventh and Eighth Circuits. Francis v. Crafts, 1 Cir., 203 F.2d 809; Kenney v. Fox, 6 Cir., 232 F.2d 288; Cawley v. Warren, 7 Cir., 216 F.2d 74 and Tate v. Arnold, 8 Cir., 223 F.2d 782.
The argument that liability under the Federal Civil Rights Act may apply to "every person" is no longer tenable. In Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019, an action was commenced under the Federal Civil Rights Act against members of a legislative committee of the California State Senate. The Supreme Court held the legislators were immune to action under the Civil Rights Act.
Defendants Guild and Douglas
Plaintiffs cite Lewis v. Brautigam, 5 Cir., 227 F.2d 124, 55 A.L.R.2d 505 as an authority for the proposition that State's Attorney Guild and Assistant State's Attorney Douglas may be held liable under the Federal Civil Rights Act. It must be admitted this case is authority for the view expressed by plaintiffs, but the great weight of authority is to the contrary. See Kenney v. Fox, 6 Cir., 232 F.2d 288; Cawley v. Warren, 7 Cir., 216 F.2d 74; Laughlin v. Rosenman, 82 U.S.App.D.C. 164, 163 F.2d 838. In Cawley, we held the State's Attorney and ...