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GARDELS v. MURPHY
May 28, 1974
NATHAN GARDELS ET AL., PLAINTIFFS,
PETER C. MURPHY ET AL., DEFENDANTS.
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
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
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
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.
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 ...