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June 10, 1959


The opinion of the court was delivered by: Campbell, Chief Judge.

  Plaintiff, Paul Egan, brings this action against defendants for alleged violation of the federal civil rights statutes, Title 42, U.S.C.A. §§ 1983 and 1985 and claims damages in the amount of $5,000,000. Jurisdiction is based upon Title 28 U.S.C. § 1331 and 1343.

The substantial allegations of the complaint are as follows: Plaintiff, in his official capacity as Mayor of the City of Aurora, was conducting a public meeting before a group in excess of 200 people in the City Hall council chambers of the City of Aurora when defendant, Donald Curran, purporting to be acting as Chief of Police of the City of Aurora, and defendants, Hershell Stover, LeRoy Strand, Anthony Rukas, John (Jack) Pfiefer, Ray Schuhow and John Day, all purporting to act as police officers of the City of Aurora, laid their hands upon plaintiff, arrested him without warrant and without probable cause but purporting to act under color of an Illinois "breach of peace" statute (Ill. Rev. Stat. (1957) c. 38, § 160), and "carried him by force of arms, physically from the rostrum on which he was speaking and incarcerated him in the city jail of the City of Aurora."

Plaintiff alleges that such action was taken as a result of a conspiracy to deprive plaintiff of his rights to freedom of speech and assembly under the Fourteenth Amendment of the United States Constitution between the above named defendants and defendants, Leo Boucon, William G. Konrad, H.A. Wyeth, Sr., and William B. Robertson, acting as individuals and as City Commissioners of the City of Aurora, and defendant, Charles Darling, purported Corporation Counsel of the City of Aurora.

Defendants have filed a motion to dismiss or in the alternative to strike on the grounds that the complaint fails to state a cause of action; that this Court lacks jurisdiction because plaintiff's claim is insubstantial, immaterial and made solely for the purpose of obtaining jurisdiction; and finally, that plaintiff's claim is frivolous.

Title 42 U.S.C.A. § 1983 provides as follows:

    "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."

Title 42, U.S.C.A. § 1985, also known as the "Ku Klux Klan section," provides a civil remedy against "two or more persons" who may conspire to deprive another of constitutional rights as therein defined.

It is a matter of well documented history that civil rights legislation passed shortly after the Civil War to combat "Black Codes," Ku Klux Klan activities and general State frustration of Negro rights was, for the most part, strictly construed through a series of cases which all but eradicated original Congressional intent. In re Slaughter-house Cases, 16 Wall. (83 U.S.) 36, 21 L.Ed. 394; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290; In re Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 763, 32 L.Ed. 766; James v. Bowman, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed. 979.

These decisions not only narrowly interpreted the rights, privileges and immunities secured by the Fourteenth Amendment and restricted the protection of those rights to actions of a State but also declared certain of the Acts unconstitutional. Sections 1983 and 1985, historical remnants of the original legislation, created remedies today for violation of rights in the form of civil causes of action.

Though the original purpose of civil rights legislation was to secure the civil and political rights of Negroes, it is clear today that such legislation embraces the protection of basic civil and political rights of all persons within the jurisdiction of the respective States, whether citizens or not, from the abuse of State power. Such protected rights include, apart from political rights, the rights to a fair trial, including freedom from sham trials; to be free from arrest and detention by methods constitutionally forbidden and from extortion of property by such methods; from extortion of confessions; from mob action incited or shared by state officers; from failure to furnish police protection on proper occasion and demand; from interference with the free exercise of religion, freedom of the press, freedom of speech and assembly. Screws v. United States, 325 U.S. 91, 126, 65 S.Ct. 1031, 89 L.Ed. 1495; Culp v. United States, 8 Cir., 131 F.2d 93; Catlette v. United States, 4 Cir., 132 F.2d 902; United States v. Sutherland, D.C., 37 F. Supp. 344; United States v. Trierweiler, D.C., 52 F. Supp. 4.

It is likewise apparent that federal courts cannot be so overzealous in their desire to protect individual rights from State abuse that they unjustifiably deprive the States of their inherent sovereignty also protected by the United States Constitution. For these reasons, the federal courts, in applying the Civil Rights Acts have been consistently solicitous of "delicate state-federal relationships." Francis v. Lyman, 1 Cir., 216 F.2d 583, 588. In Screws v. United States, supra, 325 U.S. at pages 108, 109, 65 S.Ct. at page 1039, the Supreme Court stated with regard to the criminal counterpart of Section 1983:

    "We agree that when this statute is applied to
  the action of state officials, it should be
  construed so as to respect the proper balance
  between the States and the federal government in
  law enforcement. Violation of local law does not
  necessarily mean that federal rights have been
  invaded. The fact that a prisoner is assaulted,
  injured, or even murdered by state officials does
  not necessarily mean that he is deprived of any
  right protected or secured by the Constitution or
  laws of the United States. * * * The Fourteenth
  Amendment did not alter the basic relations
  between the States and the national
  government. * * * Our national government is one of
  delegated powers alone."

In People ex rel. Turnbaugh v. Bibb, 252 F.2d 217, at pages 219 and 220, a case involving Section 1983, the Seventh Circuit Court of Appeals quoted with approval from an earlier case:

    "* * * Federal jurisdiction is to be exerted
  only in exceptional cases involving such an
  emergency or great urgency as necessitate action
  to prevent irreparable injury. The jurisdiction
  to interfere with the proceedings of state
  government bodies charged with the prosecution
  and punishment of offenders is an exceedingly
  delicate one to be exercised with the greatest of
  care and nicest sense of propriety. In the
  absence of the exceptional circumstances
  mentioned, a sense of comity and due regard for
  state jurisdiction demand that the applicant be
  left to his remedies with ...

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