The opinion of the court was delivered by: Perry, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW.
This cause coming on to be heard on the motion of defendants
under Rule 56 of the Federal Rules of Civil Procedure for summary
judgment to be awarded in their favor and against plaintiff and
the court having considered the motion, together with the
supporting affidavits and having examined the briefs filed in
support of and in opposition to said motion, does enter the
following Findings of Fact and Conclusions of Law.
1. Suit was originally brought by plaintiff against defendants
in the Circuit Court of Cook County, Illinois, seeking damages of
$100,000 against each defendant. It was removed to this Court on
Petition of defendants. No motion was made by plaintiff to remand
the case to the state court. Defendants answered the complaint
and moved for summary judgment on their behalf, filing affidavits
in support of their motion. Defendants denied in their Answer all
facts alleged in the complaint concerning the occurrences
complained of except those facts stated in their affidavits filed
in support of their motion. No counter-affidavits were filed by
plaintiff. Plaintiff did file a Reply to Defendants' Answer.
2. Plaintiff has complained of occurrences on October 7, 1964,
in and near his home at 3010 Orchard Place in Des Plaines. On
that date, plaintiff was a duly licensed dealer under the
National Firearms Act and the Federal Firearms Act. At and near
his home, which was located within 300 yards of the O'Hare Inn,
plaintiff possessed many rifles, pistols, a machine gun, a 25
m.m. cannon that could penetrate a concrete wall, and ammunition
for those weapons. His home was within easy rifle shot of the
O'Hare Inn. Several years before the date in question, plaintiff
had been arrested by Chicago Police while in possession of a 20
m.m. cannon at O'Hare Airport.
3. On October 7, 1964, Michael W. Torina was Special
Agent-in-Charge of the Chicago Office of the United States Secret
Service, Treasury Department. As part of his duties he was
assigned to protect the person of the President of the United
States. He was authorized and directed by the Secretary of the
Treasury Department to call upon other agencies of the Treasury
Department for assistance in carrying out protective assignments.
On that date, the President of the United States was scheduled to
arrive in the evening at the O'Hare Inn, which was the O'Hare Inn
within 300 yards of plaintiff's residence. Mr. Torina therefore
called Cecil M. Wolfe, Acting Chief of the Enforcement Branch,
Alcohol and Tobacco Tax, Internal Revenue Service, Treasury
Department, Midwest Region, at Chicago, Illinois. Mr. Torina
asked Mr. Wolfe to supply the assistance of his investigators to
keep under surveillance the occupant or occupants of the
plaintiff's home, until the President departed.
4. After Mr. Wolfe received that request from Mr. Torina, he
instructed defendants, who were Special Investigators of the
Alcohol and Tobacco Unit in Chicago, and other investigators in
that Unit, to assist Mr. Torina in the protection of the
President and particularly to keep under surveillance the
occupant or occupants of the plaintiff's home at 3010 Orchard
Place in DesPlaines.
5. That same day, defendants identifying themselves and their
purpose to plaintiff, made repeated attempts to persuade Mr.
Scherer to separate himself from his weapons until the President
left. These efforts included offers to provide a room for
plaintiff at a nearby motel without cost to him, and, when that
was refused, the request that he willingly give up his weapons
until the President left. The latter request also being refused,
the defendants and other Government agents on the same assignment
attempted to keep plaintiff under constant direct surveillance,
accompanying him when he left and later returned to his home. At
no time did defendant prevent plaintiff from entering his home or
using his property freely. They did tell him they wanted to
follow him inside when he entered his home. However, when Mr.
Scherer finally went inside and locked himself in, neither
defendants nor any other Government agent attempted to enter.
Defendants thereafter maintained surveillance from the outside of
plaintiff's home until relieved by other agents.
6. Plaintiff was not at any time deprived of his liberty, or
the use of his home, or his privacy within his home, or any of
his many weapons or any ammunition or any other property. No
property whatsoever was taken even temporarily.
7. The defendants, and each of them, were under assignment to
protect the person of the President of the United States. At all
times complained of, they were acting within the scope of their
duties and within the outer perimeter of their line of duty.
Their acts with respect to plaintiff and plaintiff's home and all
acts committed by them were at all times reasonable, necessary,
and within the scope of their assignment to protect the President
of the United States.
1. This action was properly removed from the Circuit Court of
Cook County and this court has jurisdiction over the parties
hereto and subject matter hereof. Title 28, United States Code,
Sections 1442 and 1446.
2. Under Rule 56(e) of the Federal Rules of Civil Procedure,
Title 28, United States Code,
"* * * When a motion for summary judgment is made and
supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of
his pleading, but his response, by affidavits or as
otherwise provided in this rule, must set forth
specific facts showing there is a genuine issue for
trial. If he ...