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May 28, 1974


The opinion of the court was delivered by: Marovitz, District Judge.


Motion to Dismiss, or in the Alternative, for Summary Judgment

This lawsuit arises from the events surrounding the visit of President Richard M. Nixon to Pekin, Illinois, on or about June 15, 1973, for the purpose of attending a non-partisan, non-political public event — the dedication of the Everett M. Dirksen library. Plaintiffs, all members of the Indochina Peace Campaign, a voluntary association of persons opposed to the war in Viet Nam and the bombing of Cambodia, joined the public-at-large in lining the streets and gathering in the main public park to see and hear the President. According to the complaint, plaintiffs and other members of the Peace Campaign were attempting peacefully to express their views in opposition to the war in Indochina and in opposition to the Nixon administration in general, primarily through dissemination of literature and through the carrying of signs and banners which reflected their views, such as signs which stated "Stop the War" and "You Can't Hide from Watergate in Pekin." Other persons favoring the policies of the administration, and seeking to express their sentiments, were also in attendance, some carrying signs and banners of their own.

Plaintiffs contend that employees and agents of the Presidential Advance Office, which is a part of the White House Office, a division of the Executive Office of the President, violated their First, Fourth, and Fifth Amendment rights. Specifically, the complaint alleges that defendant Murphy and other advancemen assaulted plaintiffs, ripped and tore signs and banners from their hands, and harassed, intimidated, disrupted, and prevented plaintiffs from expressing their views. Furthermore, sign-carrying persons in the crowd supporting the President were left undisturbed.

Plaintiff further complains that the actions of advancemen Murphy, "Richard Roe", "John Doe", and other persons yet to be identified but associated with the Executive Branch of the United States government, were part of a continuing course of premeditated, conspiratorial conduct on the part of the White House Advance Office and its Director, defendant William Henkel, to suppress rights of freedom of speech of those who disagreed with the policies of the administration at public gatherings where President Nixon spoke. It is alleged that Murphy and other advancemen behaved as they did as part of this conspiracy and with the direction, approval and knowledge of Henkel and other co-conspirators.

The complaint is brought in three counts, pursuant to 28 U.S.C. § 1331 and under the First, Fourth, and Fifth Amendments to the Constitution of the United States. Count I is brought as a class action and alleges the harassment, intimidation, threats, taking of property, humiliation and embarassment caused by defendant Murphy and the unidentified co-conspirators, and seeks a judgment against Murphy, John Doe and Richard Roe in favor of each plaintiff in the sum of $15,000 actual damages and $15,000 punitive damages. Also, Count I alleges that plaintiffs reasonably fear that defendants Murphy, Doe, and Roe will take similar action at similar public meetings held in the future; to avoid this "chilling effect" upon the exercise of First Amendment Rights, plaintiffs seek a permanent injunction to restrain defendants from engaging in such conduct.

Count II is an action based on common law assault, and is brought by plaintiffs Nathan Gardels and Margaret Curran-Gardels against defendant Murphy in the sum of $5000 actual damages and $15,000 punitive damages. Jurisdiction is based both on the principle of pendent jurisdiction, and independently on diversity jurisdiction, inasmuch as defendant is a citizen of Oregon and plaintiffs are citizens of Illinois.

Count III is a class action which charges that Director Henkel and other unidentified co-conspirators conspired with advancemen-defendants Murphy, Roe, and Doe to perpetrate and perform the conduct complained of in Counts I and II, and that Henkel directed, instructed, authorized, and agreed with the advancemen that they should perform in this manner. Plaintiffs seeks a judgment against Henkel and the unidentified conspirators in favor of each plaintiff in the sum of $15,000 actual damages and $15,000 punitive damages, as well as an injunction to restrain defendants from engaging in similar conduct at similar meetings in the future.

Each of defendants Henkel and Murphy has filed a motion to dismiss the action against him, or in the alternative to grant summary judgment in his behalf. Though the motions were filed and briefed independently, we have consolidated them for decision, inasmuch as some aspects of the discussion are pertinent to both parties' motions.

Defendant Henkel seeks dismissal based on the doctrine of official immunity. The leading case in this area is Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), further explored in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), on remand, 456 F.2d 1339 (2d Cir. 1972). These cases dictate that we resolve two issues: (1) taking the allegations of the complaint as true, as we must, is there a showing that defendant was acting within the outer perimeter of his line of duty; and if so, (2) was he alleged to be performing the type of "discretionary" function that entitles him to immunity from suit. We believe that Henkel is entitled to immunity.

In determining whether Henkel was acting within his line of duty, we are mindful of Barr's approval of the following language that "acting within line of duty" is not to be construed narrowly:

  The decisions have, indeed, always imposed as a
  limitation upon the immunity that the official's act
  must have been within the scope of his powers; and it
  can be argued that official powers, since they exist
  only for the public good, never cover occasions where
  the public good is not their aim, and hence that to
  exercise a power dishonestly is necessarily to
  overstep its bounds. A moment's reflection shows,
  however, that that cannot be the meaning of the
  limitation without defeating the whole doctrine. What
  is meant by saying that the officer must be acting
  within his power cannot be more than that the
  occasion must be such as would have justified the
  act, if he had been using his power for any of the
  purposes on whose account it was vested in him. . . .
  Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581. 360
  U.S. at 572, 79 S.Ct. at 1340.

Bivens states:

  We believe that what is meant by the phrase "within
  the outer perimeter of [an officer's] line of duty"
  is that the officer must have been acting in his

  role as a government officer. 456 F.2d at 1345.

Clearly, defendant Henkel's actions at Pekin, Illinois were not manifestly or palpably beyond his authority, when interpreted in accord with the controlling cases cited above.

Plaintiffs further argue that Henkel's duties do not involve the exercise of discretion. Unfortunately, there is no litmus paper test to distinguish acts of discretion, Ove Gustavsson Contracting Co. v. Floete, 299 F.2d 655, 659 (2d Cir. 1962), but "the broader the range of responsibilities and duties, . . . the wider the scope of discretion . . ." Barr v. Matteo, 360 U.S. at 573, 79 S.Ct. at 1340. Though defendant Henkel's duties are not statutorily defined, they would appear quite broad, and include planning, coordinating and execution of Presidential trips, organizing the efforts of local sponsors, meeting with governors, mayors, and business and community leaders as the President's personal representative, working with the Office of the Military Assistant to the President and Secret Service to determine the best logistical arrangements, arranging housing and logistical support for Presidential overnight visits, and planning for potential contingencies and coordinating solution to emergencies. The duties, considered together, require a considerable degree of discretion in their execution.

Defendant Henkel has cited to us many cases to support his contention that he is entitled to immunity, most of which cases involve Secret Service agents or federal law enforcement officers. We have much less confidence in applying the immunity doctrine to this situation than to those presented us as precedent, because one of the most important rationales underlying the doctrine of official immunity is to prevent threats "which might appreciably inhibit the fearless, vigorous, and effective administration of the policies of government." Such fearlessness is better found in the Secret Service than in the Advance Office. Nonetheless, a person in the position of Director of Advance Office has sufficiently large responsibilities and potential conflict with the public that he or she should be free to exercise the duties of the office 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. Barr v. Matteo, supra, 360 U.S. at 571, 79 S. Ct. 1335.

Plaintiffs point out that even if the doctrine of official immunity is applied to Henkel to protect him from damage suits, he is still subject to a suit seeking injunctive relief. Defendant contends that injunctive relief is inappropriate, because the complaint alleges constitutional violations stemming from a sole non-recurring event of June 15, 1973, and an action based upon enjoining future behavior does not, in this instance, present a justiciable case or controversy within Article III of the Constitution. Again we agree with defendant.

We believe that this issue is governed by Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). In,Tatum, the several plaintiffs, four individuals and nine unincorporated associations, sued on their own behalf and on behalf of all other individuals and organizations who wish to exercise their First Amendment rights "without fear of harassment, intimidation and injury resulting from investigation, surveillance and record keeping by military authority." (Plaintiffs' Complaint ¶ 5, Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972)). The complaint alleged that the intelligence agencies of the United States Armed Forces were continually engaged in the surveillance of lawful and peaceful civilian activity, that the information collected concerning the plaintiffs served no legitimate military purpose, was widely and indiscriminately disseminated and was stored in computerized data banks. It further alleged that a "blacklist" of potential troublemakers had been compiled. The plaintiffs claimed that the defendants' activities inhibited and curtailed their free ...

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