Liuzzo v. United States, Civ. A. No. 79-72564.
| Citation | 485 F. Supp. 1274 |
| Decision Date | 29 February 1980 |
| Docket Number | Civ. A. No. 79-72564. |
| Parties | Anthony LIUZZO, Jr., Thomas Liuzzo, Penny Liuzzo Dupure, Mary Liuzzo and Sally Liuzzo, Individually and as representatives of the Estate of Viola Liuzzo, deceased, Plaintiffs, v. UNITED STATES of America, and its agency, the Federal Bureau of Investigation, Defendants. |
| Court | United States District Courts. 6th Circuit. United States District Court (Western District Michigan) |
Dean A. Robb, American Civil Liberties Union Fund of Michigan, Detroit, Mich., Jack D. Novik, American Civil Liberties Foundation, New York City, William Rastetter, Traverse City, Mich., for plaintiff.
L. Michael Wicks, Asst. U. S. Atty., Detroit, Mich., John J. Farley, Asst. Director, U. S. Dept. of Justice, Torts Branch, Civil Division, Washington, D. C., Mark J. Kurzmann, Trial Atty., U. S. Dept. of Justice, Torts Branch, Civil Division, Washington, D. C., for defendants.
The case arises out of the tragic and brutal slaying of civil rights worker Viola Liuzzo in March of 1965. Plaintiffs, the children of Mrs. Liuzzo, have filed this action under the Federal Tort Claims Act1 against the United States and its agency, the Federal Bureau of Investigation, alleging that the government was responsible for the murder of their mother, and that certain government agents mishandled and abused their mother's body after her death.2
This case is before the court on defendant's motion to dismiss on the grounds that plaintiffs' complaint, barred by the 2 year statute of limitations applicable to tort claims against the government, 28 U.S.C. § 2401(b), fails to state a claim upon which relief can be granted.3 As more fully discussed below, the issue presented by this motion is whether plaintiffs' suit is barred by reason of the lapse of twelve years between the date of Mrs. Liuzzo's death and the date on which plaintiffs filed their administrative claim against the government. Specifically, the government's motion requires a determination of when, under § 2401(b), plaintiffs' cause of action accrued: in 1965, as the government argues, when Mrs. Liuzzo was killed, or in 1975, as plaintiffs argue, when information was disclosed which suggested a causative link between the conduct of FBI personnel and Mrs. Liuzzo's death.
In all cases in which a statute of limitations defense is interposed by a defendant, a thorough understanding of the facts is essential. Accordingly, an examination of the facts of this case follows. The sources of this factual history are the plaintiffs' complaint and affidavits and the numerous exhibits submitted by the parties for the court's perusal. These exhibits include newspaper and magazine articles, transcripts from earlier trials, transcripts of testimony given before the Senate Select Committee to Study Governmental Operations, and the Committee's Final Report issued in April of 1976.
On March 25, 1965, Viola Liuzzo was in Alabama participating in civil rights activities, specifically, the Selma-Montgomery voting rights march. Following the march, Mrs. Liuzzo was driving between the cities of Selma and Montgomery with a black companion, Leroy Moten. During this trip, her car was overtaken by a car occupied by four members of the Ku Klux Klan. As the Klan car pulled alongside the Liuzzo car, the Klansmen opened their windows and fired on Mrs. Liuzzo and her companion. The shots killed Mrs. Liuzzo, but her passenger escaped injury.
On March 26, 1965, President Lyndon Johnson appeared on television, flanked by FBI Director J. Edgar Hoover and Attorney General Nicholas Katzenbach, and announced the arrests of four Klansmen in connection with the Liuzzo murder. President Johnson stated:
Due to the very fast and the always efficient work of the special agents of the FBI who worked all night long immediately after the tragic death of Mrs. Viola Liuzzo on a lonely road between Selma and Montgomery, Alabama, arrests were made a few minutes ago of four Ku Klux Klan members ... charging them with conspiring to violate the civil rights of the murdered woman.
After naming the arrested Klansmen, the President continued:
New York Times, March 27, 1965.
One of the arrested Klansmen, Gary Rowe, later surfaced as an undercover FBI informant. Rumors that one of the Klansmen was an informant began to circulate when a federal grand jury indicted only three of the Klansmen, and were confirmed when the informant testified, under heavy guard, before the Alabama grand jury. On Rowe's testimony, the state grand jury returned murder indictments against the three other men who were in the car.
Three criminal trials resulted from the Liuzzo murder: two murder trials in the state courts and one federal conspiracy trial. Only one of the three indicted Klansmen was tried on the murder charge, Collie LeRoy Wilkins. His first trial resulted in a hung jury, and the second in an acquittal. All three Klansmen were successfully prosecuted on the federal charge of conspiring to violate Mrs. Liuzzo's civil rights, and, on verdicts of guilty, each received the maximum sentence.
Gary Rowe testified at all three trials, and related both the background of his involvement with the Ku Klux Klan and the FBI, and his version of the events which took place on March 25. Rowe testified that he was approached by an FBI agent in 1960 or 1961 and was asked to infiltrate the Klan. His duties, he stated, were to "keep up with" any violent actions, and to report to the FBI on the men whom he met in his undercover work.
In March of 1965, Rowe lived in Birmingham, Alabama. His testimony concerning Mrs. Liuzzo's murder was as follows. Rowe said he left Birmingham for the Selma-Montgomery area on the morning of the 25th, and called his FBI contact agent to inform him of the trip. While in Selma, Rowe and three Klan companions spotted Mrs. Liuzzo and a black man in a car. His companions expressed a desire to "take them." The Klansmen pursued the Liuzzo car down Highway 80 between Selma and Montgomery, and tried several times to overtake the car. Rowe testified that he tried to convince the Klansmen several times to turn back, but that they insisted on continuing. Finally, on the fourth attempt, at speeds approaching 100 miles per hour, the Klan car overtook the Liuzzo car. Rowe stated that as they overtook the Liuzzo car, one of the Klansmen passed his gun to Wilkins, and Wilkins opened his window and fired two shots, just as Mrs. Liuzzo turned to her left and look at them. According to Rowe, Eugene Thomas, the owner of the gun, directed the men to "shoot the hell out of them." Rowe testified that he drew his pistol and pretended to fire, but didn't. Rowe further testified that he did not know when he left Birmingham that the trip would end in a slaying, and that he was powerless to prevent the murder because he didn't know that shots would be fired until they were fired. Rowe stated that he phoned the FBI contact agents upon his return to Birmingham and later turned over his pistol to the agents.
Rowe's testimony was not, of course, unchallenged in the three trials. At the first state trial, Wilkins was represented by Matt Murphy, Imperial Klonsel of the Klan. Murphy questioned Rowe on an alleged bribe he received from the FBI to testify, and Rowe stated that he was not bribed, and that Murphy himself had manufactured the story. Murphy also questioned Rowe regarding threats Rowe allegedly made to "kill niggers," and about a trip to Tuscaloosa when he allegedly had a burp gun in his car. Murphy asked whether Rowe himself had insisted on "killing some niggers" on the night of the murder. Rowe repeatedly denied Murphy's allegations. Murphy's cross-examination of Rowe did establish, however, that Rowe was a paid informant, and that Rowe was paid for his expenses and the information that he provided the FBI.
The cross-examinations in the second state trial and in the federal conspiracy trial included further attempts to impeach Rowe. In these trials, Arthur Hanes, a former FBI agent, served as defense counsel, and attempted to portray Rowe as a paid FBI troublemaker. The focus of Hanes' line of questioning was the 1961 Klan attack on the Freedom Riders at the Birmingham bus depot. Hanes' questions to Rowe elicited the information that Rowe was present at the scene, and was, at the time, working for the FBI. Hanes asked whether Rowe helped "jump on these riders," and Rowe denied the allegation. He did state, however, that he was involved in an affray:
State murder trial transcript at 509.
Federal conspiracy trial transcript at 287-88.
At both trials, Hanes showed Rowe a picture from the Saturday Evening Post, March 2, 1963, depicting the attack on the Freedom Riders, and asked whether one of the individuals shown beating the riders was Rowe. Rowe denied that it was his picture.
Mr. Hanes: I would like for the record to show that I pointed to a rather hefty man with his back to the camera, and I asked the witness if that was he, and he said no.
Federal trial transcript at 289.
The federal conspiracy trial ended, as noted above, with convictions of all...
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