Bright v. Nunn

• Decision Date: 24 September 1971
• Docket Number: No. 21022.,21022.
• Parties: Steve BRIGHT, Plaintiff-Appellant, and American Association of University Professors, University of Kentucky Chapter, et al., Plaintiffs, v. Louie B. NUNN, Governor of Commonwealth of Kentucky, and Otis Singletary, President of University of Kentucky, Defendants-Appellees, and E. Lawson King, County Attorney of Fayette County, Commonwealth of Kentucky, Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

448 F.2d 245 (1971)

Steve BRIGHT, Plaintiff-Appellant, and American Association of University Professors, University of Kentucky Chapter, et al., Plaintiffs, v. Louie B. NUNN, Governor of Commonwealth of Kentucky, and Otis Singletary, President of University of Kentucky, Defendants-Appellees, and E. Lawson King, County Attorney of Fayette County, Commonwealth of Kentucky, Defendant.

No. 21022.

United States Court of Appeals, Sixth Circuit.

September 24, 1971.

Lawrence G. Sager, American Civil Liberties Union Foundation, New York City, for plaintiff-appellant; Melvin L. Wulf, Marilyn Haft, American Civil Liberties Union Foundation, New York City, Alvin L. Goldman, William H. Allison, Jr., Lexington, Ky., on brief; Laura Sager, New York City, of counsel.

John B. Breckinridge, Atty. Gen. of Kentucky, Frankfort, Ky., W. Scott Miller, Jr., Louisville, Ky., for Governor Louie B. Nunn.

C. Gibson Downing, Stoll, Keenon & Park, Lexington, Ky., for Otis Singletary.

Before WEICK, PECK and KENT, Circuit Judges.

WEICK, Circuit Judge.

This appeal arises out of disorders on the campus of the University of Kentucky in Lexington, between May first and eighth, inclusive, 1970, which occurred subsequent to the incursion of United States Armed Forces into Cambodia and during the period of the Kent State tragedy in early May, 1970.

The Governor of the Commonwealth of Kentucky, defendant Louie B. Nunn, deemed it necessary to and did send units of the Kentucky State Police and National Guard to the campus to quell the disturbances and to restore order. Due to the disorders, he also imposed a curfew between 7:00 p. m. and 6:30 a. m., for two days. The President of the University of Kentucky, defendant Otis Singletary, also placed certain restrictions on mass assemblies after 5:00 p. m. during this period of time.

The present action was instituted by the University of Kentucky Chapter of the American Association of University Professors; Professor J. W. Patterson, then president of the A.A.U.P. chapter; Robert Brecht, president of the Graduate Student Association; Julie Colson, a student; and plaintiff-appellant Steve Bright, president of the student body. The action was brought in behalf of plaintiffs and that class of professors and students of the University "who desire to exercise their First Amendment rights of speech and assembly * * * and who are prohibited from doing so by Defendant Nunn's executive order * * * and Defendant Singletary's prohibition * * *." In addition to the alleged infringement of their First Amendment rights, the plaintiffs alleged that the Governor of Kentucky and the President of the University acted in bad faith and for political reasons; they also complained of the presence on campus of non-University security forces, of the lack of training of those forces, and of the arming of those forces with live ammunition. Plaintiffs sought declaratory relief determining the impropriety of the defendants' actions and permanent injunctive relief against further invasion of their asserted rights. Their claims were asserted under 42 U.S.C. § 1983 and the First, Ninth and Fourteenth Amendments of the United States Constitution. Jurisdiction is founded on 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343(3), (4) (civil rights).

The disorders took place during the last week of the spring semester, when final examinations were being held. The disorders consisted principally of the holding of unruly mass demonstrations, sometimes extending into the night season; the setting on fire, by unknown persons, of several buildings one of which was the ROTC building and which was completely destroyed, the fire then spreading to Blazer Hall (an adjoining dormitory for women) and requiring the evacuation in the middle of the night of 175 women students who were in Blazer and Boyd Halls; the throwing of stones and rocks at buildings and the breaking of windows; the throwing of stones and rocks which hit teachers, security officers and a policeman; the breaking into and entering of a building; the disruption of a meeting of the Board of Trustees; the use of physical force against campus security officers outside that meeting; and the use of vile, abusive, and obscene language.

Plaintiffs filed a motion for a temporary restraining order, which motion did not show service on the defendants, and presented it to the District Judge sitting in the Western District of Kentucky. Counsel for plaintiffs advised the Court, however, that he had called the Attorney General's office, informing that office of the hearing, but no one appeared in behalf of the defendants. The Court declined to issue a temporary restraining order and assigned the motion for hearing on May 11, 1971, in the Eastern District of Kentucky, the District in which the University is located and wherein the alleged cause of action arose.

Prior to the hearing, namely by May 9, 1971, the disturbances had subsided, order was restored, and the National Guard and police were withdrawn from the campus. Because of this change in the situation, there was left for consideration by the Court only plaintiffs' claim for declaratory relief and for injunctive relief against similar actions in the future.

The Court conducted an extensive evidentiary hearing which lasted three days. Plaintiffs filed an amended complaint at the hearing, without objection from the defendants, substituting Professor Garrett Flickinger, the newly-elected president of A.A.U.P., as a party plaintiff, and adding as party plaintiffs a number of University students and professors who had been arrested by the National Guard and State Police for violation of the curfew and for disorderly conduct. The amended complaint also named E. Lawson King, Fayette County Attorney, as an additional party defendant, and sought to enjoin him from prosecuting the students and professors in the state court. It is significant that the complaint makes no claim that any personal injury was suffered by either a student or a professor.

At the hearing students and professors testified. The plaintiffs also called Governor Nunn and President Singletary and cross-examined them. Defendants made an oral motion at the close of all of the evidence to dismiss the complaint, which motion the Court granted.¹ Only plaintiff Bright has appealed.

Bright urges that the restrictions on speech and assembly during the period of the disturbances on the campus "unconstitutionally inhibited free expression" and that "the deployment of fully armed National Guard troops contravened the norms of due process." There can be little doubt that because of the disturbances substantial restrictions were placed upon the University community during the period in question, in order to protect lives and property. All meetings or movement about campus were banned during the hours of darkness from the evening of May 6th to the morning of May 8th, by the Governor's 7:00 p. m. to 6:30 a. m. curfew. All mass student assemblies on campus were essentially prohibited by University officials on May 6th and 7th, and several unauthorized demonstrations had to be dispersed.

Bright, president of the student body, admitted that in addressing an assembly meeting of students (at which mass meeting President Singletary had previously announced the University's prohibition against mass meetings after 5:00 p. m.) he did not intend to co-operate with the University, and that he intended to attend a mass meeting at the Armory at 4:30 p. m. that afternoon. At the assembly meeting Bright told the students "* * * they should be thankful for the burning of the building." He explained that it was preferable for the buildings to be burned rather than for the students to be...