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.
Conclusions of Law.
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 does not so respond, summary judgment,
if appropriate, shall be entered against him."
No counter-affidavits were filed by plaintiff. The Answer of
defendants specifically denied all facts alleged in the complaint
concerning the events complained of except those facts stated in
the affidavits filed by them in support of their Motion for
Accordingly, the facts to be considered by the court are those
set forth in the affidavits filed by defendants in support of
their Motion for Summary Judgment which was made pursuant to Rule
56 of the Federal Rules of Civil Procedure.
3. A federal official, whether of high or of low rank, cannot
be held personally liable in damages for an act committed within
the general scope of his official authority and in pursuance of
his official duties. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335,
3 L.Ed.2d 1434 (1959); Howard v. Lyons, 360 U.S. 593, 79 S.Ct.
1331, 3 L.Ed.2d 1454 (1959); Sauber v. Gliedman, 283 F.2d 941
(7th Cir. 1960), cert. denied 366 U.S. 906, 81 S.Ct. 1047, 6
L.Ed.2d 204 (1961). This longstanding rule, often referred to as
the "official immunity doctrine," has been consistently adhered
to by the Supreme Court, Spalding v. Vilas, 161 U.S. 483, 16
S.Ct. 631, 40 L.Ed. 780 (1896); Alzua v. Johnson, 231 U.S. 106,
34 S.Ct. 27, 58 L.Ed. 142 (1913); Barr v. Matteo, supra; Howard
v. Lyons, supra, and by the lower federal courts. See, e.g.,
Norton v. McShane, 332 F.2d 855 (5th Cir. 1964); Chafin v. Pratt,
358 F.2d 349 (5th Cir. 1966); Papagianakis v. The Samos,
186 F.2d 257 (4th Cir. 1950), cert. denied 341 U.S. 921, 71 S.Ct. 741, 95
L.Ed. 1354 and citations therein. It was adhered to by the
Seventh Circuit Court of Appeals as recently as in LeBurkien v.
Notti, 365 F.2d 143 (decided August 17, 1966).
4. The principal reason for the official immunity doctrine, as
was stated by the Supreme Court in Barr v. Matteo, supra, 360
U.S. at 571, 79 S.Ct. at 1339, is to leave government officials
"free to exercise their duties unembarrassed by the fear of
damage suits in respect of acts done in the course of those
duties — suits which would consume time and energies which would
otherwise be devoted to governmental service and the threat of
which might appreciably inhibit the fearless, vigorous, and
effective administration of policies of government." Judge
Learned Hand also explained the rationale for the rule in
Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949) which was
adopted with approval by the Supreme Court in Barr v. Matteo.
5. The only prerequisite for the application of the immunity
doctrine is that the action taken must be within the outer
perimeter of the executive officer's line of duty. Barr v.
Matteo, supra, 360 U.S. at 575, 79 S.Ct. 1335. This means that
the "act must have more or less connection with the general
matters committed by law to the officer's control or supervision,
and not be manifestly or palpably beyond his authority." Norton
v. McShane, supra, 332 F.2d at 859. Thus, the only issue for the
court to determine is whether or not defendants were acting
within the outer perimeter of the scope of their duties.
6. The affidavits filed on behalf of defendants clearly show
that they did act within their authority and within the scope of
their duties. Under the law, "Subject to the direction of the
Secretary of the Treasury, the United States Secret Service,
Treasury Department, is authorized to protect the person of the
President of the United States * * *" Title 18, United States
Code, Section 3056. The defendants were lawfully detailed to the
Secret Service to assist it in carrying out the statutory duty
"to protect the person of the President."
7. The defendants' assignment in protecting "the person of the
President", was to keep the plaintiff under surveillance, until
the President departed from the area. In carrying out this
assignment, the acts which occurred, as the affidavits show, were
within the scope of the duties of defendants. Therefore, this
action is barred under the official immunity doctrine.
8. Accordingly, it is the opinion of this court that the motion
of defendants for summary judgment should be allowed and judgment
should be entered against plaintiff and in favor of defendants.
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