Downie v. Powers

• Decision Date: 20 December 1951
• Docket Number: No. 4282.,4282.
• Citation: 193 F.2d 760
• Parties: DOWNIE et al. v. POWERS et al.
• Court: U.S. Court of Appeals — Tenth Circuit

193 F.2d 760 (1951)

DOWNIE et al. v. POWERS et al.

No. 4282.

United States Court of Appeals Tenth Circuit.

December 20, 1951.

COPYRIGHT MATERIAL OMITTED

Hayden C. Covington, Brooklyn, N. Y., for appellants.

Jerome Sullivan and Edward L. Bond, Duncan, Okl. (C. D. Cund, Duncan, Okl., was with them on the brief), for appellees.

Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

Appellants brought this action in the United States District Court of Oklahoma to recover damages for injuries alleged to have been sustained in the deprivation of their civil rights by the appellees. Jurisdiction is conferred under 28 U.S.C.A. § 1343.

Appellants are all Jehovah's Witnesses. The appellee Webb is the Chief of Police of the City of Duncan, Oklahoma; the appellee Powers is one of the Commissioners of the City of Duncan; the appellee Wood is the Superintendent of Schools for the City of Duncan; and, the other appellees are citizens of that City.

During the Spring of 1949, the Jehovah's Witnesses planned a district convention in the City of Duncan and obtained a lease of the Duncan High School auditorium beginning July 15 and ending July 17, 1949. The complaint alleges that on July 17, when appellants had assembled for their meeting in the auditorium where an address was to be delivered, "the defendants armed with sticks, rocks, guns and other instruments of violence, entered the auditorium forcibly, and attacked the assembled groups and broke up the assembly."

As we construe the complaint, it seeks a single recovery on two separate, but not inconsistent legal theories. First, it is alleged that by their wilful failure and refusal to perform the duties enjoined upon them by state law, to keep the peace, City Commissioner Powers and Chief of Police Webb, affirmatively deprived plaintiffs of their rights, protected by the First and Fourteenth Amendments to the Federal Constitution, in violation of Section 1 of the Civil Rights Act, 17 Stat. 13, 8 U.S.C.A. § 43. Then it is alleged that all of the defendants, including the city officials, formed a conspiracy to deprive the plaintiffs of equal protection of the law, or of equal privileges and immunities under the law, in violation of Section 2 of the Act, supra. 8 U.S.C.A. § 47(3).

At the conclusion of all the evidence the plaintiffs moved for a directed verdict on all of the issues except the amount of damages. The court overruled the motion and the jury returned a verdict for all of the defendants. Plaintiffs have appealed from a judgment on that verdict, contending first, that the evidence conclusively shows that City Commissioner Powers and Chief of Police Webb, acting under color of law, deprived them of their privileges and immunities secured against state action by the Fourteenth Amendment; and secondly, that the evidence conclusively proves the alleged conspiracy under Section 2 of the Civil Rights Act,

Marshalling the evidence in their behalf, appellants call attention to the official order to remove their street banners, as indicating official hostility, and to the fact that the police were warned and alerted to the threatened action of the citizen defendants. Specifically, they call attention to the use of a sound equipped automobile by some of the appellants on Sunday, exhorting the "red blooded Americans" of Duncan to come to the High School auditorium and "fight for the flag" and "your Country"; to the altercation between one of the appellants and defendant March; and, to the fact that one of the Jehovah's Witnesses went to the City Jail to invoke protection of the law for himself and his brethren. Then it is said that although forewarned, Webb did nothing to prevent the formation of the mob, which on Sunday afternoon forcibly entered the auditorium to break up the religious assembly. It is charged that when the rioting broke out Webb and Powers came to the auditorium in their capacity as City officials, but did nothing whatsoever to quell the riot or restore order, and that order was restored only after one of the Jehovah's Witnesses called the City Firemen, who quenched the violence with the water hose. Appellants urge, that by this wilful failure to keep the peace or restore order, the City officials affirmatively deprived them, under color of law, of constitutionally protected rights, and that they are therefore entitled to recover from these appellees as a matter of law.

In submitting the case to the jury, it was told in language too clear for mistake that the appellants, as Jehovah's Witnesses, had the constitutionally protected right to peaceably assemble for the purpose of pursuing their religious beliefs and that the defendant city officials had the duty to exercise all reasonable diligence to vouchsafe those rights to the plaintiffs; and, that a purposeful dereliction of their duty would be a misuse or nonuse of their powers, amounting to action taken under color of state law, custom or usage. But, the jury was also told that the defendant officials were not required to insure the safety of the plaintiffs or to guarantee the exercise of their civil rights. That if it believed from a preponderance of the evidence that the officials used reasonable diligence to prevent violence they should find for them.

Under Oklahoma law "Every person who wilfully prevents, by threats or violence, another person from performing any lawful act enjoined upon or recommended to such person by the religion which he professes, is guilty of a misdemeanor." 21 O.S.A. § 914. "Every person who wilfully disturbs, interrupts or disquiets any assemblage of people met for religious worship * * * by * * * any unnecessary noise, either within the place where such meeting is held, or so near it as to disturb the order and solemnity of the meeting" is guilty of a misdemeanor. 21 O.S.A. Sections 915 and 916. And, a police officer may arrest any such person or persons without a warrant. 22 O.S.A. § 196.

Chief of Police Webb having the direction of the Police in the City of Duncan, was under the statutory duty to order a force sufficient to preserve the peace at the religious meeting of the appellants, if he was "satisfied that a breach of the peace is reasonably apprehended." 22 O. S.A. § 82. And when the rioters gathered at the place of the public meeting it became his statutory duty to go among them, or as near to them as possible, and command them in the name of the State, to immediately disperse. 22 O.S.A. § 101. If they did not immediately disperse, he had the duty to arrest them or cause them to be arrested, and for that purpose could command the aid of all persons present or within the county. 22 O.S. A. § 102.

The Sunday meeting of the Jehovah's Witnesses in the Auditorium was a religious meeting, so recognized by the law of Oklahoma. Cline v. State, 9 Okl.Cr. 40, 130 P. 510, 45 L.R.A.,N.S., 108. And, a wilful or purposeful failure of the Chief of Police or other City officials to preserve order, keep the peace, and to make the Jehovah's Witnesses secure in their right to peaceably assemble, would undoubtedly constitute acquiescence in, and give color of law to, the actions of the mob. One charged with the duty of keeping the peace cannot be an innocent bystander where the constitutionally protected rights of persons are being invaded. He must stand on the side of law and order or be counted among the mob. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368; Catlette v. United States, 4 Cir., 132 F.2d 902; Lynch v. United States, 5 Cir., 189 F.2d 476. But the officials are the keepers, not the insurers of the peace in the community. Diligent and conscientious effort is all that is required. Otherwise, officers would be civilly and criminally liable under Federal law for every breach of a constitutionally protected right of a citizen — a result which the framers of the Civil Rights Act obviously never intended.

Chief of Police Webb testified that he took all the steps he deemed appropriate or necessary to assure an orderly assembly. He stated that on Sunday morning both the afternoon and morning police force were on duty; that finding everything quiet and peaceful at the auditorium he permitted his night force to go home for rest, but ordered them to return to duty Sunday afternoon. At the suggestion of appellants he alerted the Highway Patrol, who stood by at the edge of the City in communication by two-way radio.

City Commissioner Powers testified that on Sunday afternoon he was enroute to the airport when he observed a crowd at the auditorium. He followed the firemen into the auditorium and assisted them in stopping the riot, after asking all the women and children to leave the meeting.

A number of the Duncan citizens attending the meeting to which the public had been invited, were not bent upon disturbance, but apparently went to the auditorium out of curiosity. When the three or four townsmen entered the auditorium with the flag, demanding that the Jehovah's Witnesses salute it, general pandemonium broke out, resulting in violence. There were many and varied versions of the immediate cause of the riot, as well as what occurred. There were seventy-five Witnesses, and all of them gave different opinions as to what happened at the time. When the disturbance started, Chief of Police Webb was in his office with the City Manager and the Mayor, conferring on the situation. When the fire alarm came in Webb went to the auditorium. He started shouting to the crowd "Let's quiet down. Let's let the service go ahead." After the rioting was quelled Webb remained at the auditorium until after the speaker had finished his address and the meeting was over. There is evidence of some further disturbance in the form of window slamming and walking about among the audience and on the stage. This is either denied, explained or minimized.

When all the evidence bearing upon the action or inaction of the city officials is...