Butler v. United States

Decision Date08 November 1973
Docket NumberCiv. No. 73-3767.
Citation365 F. Supp. 1035
PartiesWillis P. BUTLER et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.
CourtU.S. District Court — District of Hawaii


David A. Johnson, American Civil Liberties Union, Honolulu, Hawaii, for plaintiffs.

William C. McCorriston, Asst. U. S. Atty., Harold M. Fong, U. S. Atty., Honolulu, Hawaii, for defendants.

SAMUEL P. KING, District Judge.

Plaintiffs' complaint arose out of incidents that took place at Hickam Air Force Base on August 30, 1972. On that date, President Nixon arrived at the base aboard Air Force One. The announced purpose of the visit was to meet Premier Tanaka of Japan, who arrived at the base later that day.

The public was invited to greet these officials. With respect to the President, White House press aide Tim Elbourne released the news which was duly reported in the local newspapers. An August 29, 1972, morning Honolulu Advertiser story, headlined "Public Can Greet President", stated in part:

"The gates to Hickam Air Force Base will be open to the public tomorrow so that Hawaii residents can greet President Richard M. Nixon when he arrives at about 4:30 p. m. . . .
"Hawaii Republicans are planning a reception at Hickam with a brass band, hula girls and Hawaiian singers. The party is making a phone canvass to get people out to greet the President. . . .
"The White House aide said no efforts will be made to keep protesters away from the public welcoming ceremony but he said Hickam guards will determine who gets in and will maintain some security regulations.
"The President is expected to make a brief address to the audience greeting him. . . ."

Plaintiffs went to Hickam "to demonstrate . . . in a peaceful and law-abiding manner their opposition to Nixon's Vietnam war policies and his campaign for re-election by displaying signs expressing their views." They gathered at a parking lot on the University of Hawaii Manoa campus, and proceeded to Hickam in three cars — Car A,1 Car B,2 and Car C.3

Car A was driven onto the base and to a parking place without incident. Plaintiffs-Car A, with their signs, left the car and walked to a gate leading to the public stands. Air Force personnel stopped and held these plaintiffs at this gate, escorted them with their car to a military security building where Plaintiffs-Car A were detained for about 1½ hours, fingerprinted, photographed, and issued individual bar letters,4 and thereafter released.

Car B was driven onto the base without incident but was stopped before it reached the parking lot by Air Force personnel who then escorted Car B and occupants to the same military security building where Plaintiffs-Car B were detained for about 1½ hours, fingerprinted, photographed, and issued individual bar letters,5 and thereafter released.

Car C was stopped at the entrance to the base by Air Force personnel and the occupants were denied admittance. The car was then parked outside the Hickam main gate, and Plaintiffs-Car C walked up and down in the vicinity carrying "protest" signs.

Plaintiffs allege seven causes of action.

Defendants Paxton and John Does I through VII6 move to dismiss or in the alternative for summary judgment.

First and Second Cause of Action

The first cause of action is brought under the U.S. Constitution and 28 U.S. C. § 1331 by Plaintiffs-Car A and Plaintiffs-Car B for money damages (punitive and exemplary) against Defendants Paxton and John Does I through V for violation of their First, Fourth and Fifth Amendment constitutional rights.

The second cause of action is brought under the U.S. Constitution and 28 U.S. C. § 1331 by Plaintiffs-Car C for money damages (punitive and exemplary) against Defendants Paxton and John Does I through V for violation of their First and Fifth Amendment constitutional rights.

Plaintiffs-Car A and Plaintiffs-Car B allege facts regarding violations of their Fourth Amendment constitutional rights which bring them within the principles of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).7 All Plaintiffs allege violations also of their Fifth and First Amendment constitutional rights. In United States ex rel. Moore v. Koelzer, 457 F.2d 892 (3rd Cir. 1972), it was held that the Bivens rationale extended to damages for violations of Fifth Amendment rights to a fair trial. I agree with Plaintiffs that the irresistible logic of Bivens leads to the conclusion that damages are recoverable in a federal action under the Constitution for violations of First Amendment rights.

As Judge Scott pointed out in Washington v. Brantley, 352 F.Supp. 559, 563-564 (M.D.Fla.1972) (dictum):

"It seems reasonably clear that Bivens may have sought to impose liability against federal officials for the same acts which Congress has heretofore imposed liability against State officials. . . . However, in reaching this holding, the Court reasoned in such a manner that it may be argued, notwithstanding the ratio decidendi of the case, that Bivens recognizes a cause of action for damages for violation of any constitutionally protected interest. . . ."

First Amendment rights are no less important than Fourth Amendment or Fifth Amendment rights. They are, in fact, historically interrelated.8 The progression of cases which have read the First Amendment into the Fourteenth Amendment did so by finding the First Amendment freedoms to be personal liberties protected by the due process clause of the Fourteenth Amendment.9 The same incorporation took place in the federal area.10 Thus protection of First Amendment rights through the Fifth Amendment against federal action rests on the same Constitutional imperatives as through the Fourteenth Amendment against state action.11

It may be argued that Bivens merely recognized the practical convenience of permitting an original action in federal court in a situation where a state tort action could be brought but would usually be removed to the federal court, whereas there are no parallel state tort actions in the area of First Amendment rights. Bivens "rejected the notion that the Fourth Amendment proscribes only such conduct as would, if engaged in by private persons, be condemned by state law." (at page 392 of 403 U.S., at 2002 of 91 S.Ct.).

In actions under 42 U.S.C. § 1983, compensatory and punitive damages are recoverable for deprivations of First Amendment rights by persons acting under color of state law.12

There are no special difficulties in applying similar standards and principles to damage actions against federal officials under the First and Fifth Amendments. Contrariwise, applying different standards to federal and state officials creates unnecessary difficulties.13

Where the occasion for exercising First Amendment rights has passed, a private damages action affords the only practicable means of redressing the kind of wrong alleged.14 And as Justice Harlan said in his concurring opinion in Bivens:

"Initially, I note that it would be at least anomalous to conclude that the federal judiciary — while competent to choose among the range of traditional judicial remedies to implement statutory and common-law policies, and even to generate substantive rules governing primary behavior in furtherance of broadly formulated policies articulated by statute or Constitution . . . is powerless to accord a damages remedy to vindicate social policies which, by virtue of their inclusion in the Constitution, are aimed predominantly at restraining the Government as an instrument of the popular will." (at pages 403-404 of 403 U.S., at 2008 of 91 S.Ct.).

With respect to the amount-in-controversy requirement of 28 U.S.C. § 1331, this court agrees with the discussion of this matter by Judge Peckham in CCCO-Western Region v. Fellows, 359 F.Supp. 644, 647-648 (N.D.Cal.1972), and holds that, in the light of the factual allegations of the complaint, it does not appear to a legal certainty that the claim of any Plaintiff is really for less than the jurisdictional amount.15

McGaw v. Farrow, 472 F.2d 952 (4th Cir. 1973) is distinguishable. There plaintiffs "admitted such allegations did not relate to actual damages, only to `symbolic damages' incapable of being measured `in terms of dollars and cents'." The alleged deprivation of constitutional rights consisted of a military base commander's denial of an application to use the base chapel's facilities for a religious memorial service for all Indo-China war dead. It would appear from this appellate court opinion that plaintiffs did not even allege any amount-in-controversy.

There is ample authority for the proposition that removal or exclusion from Hickam under the circumstances could have resulted in actionable deprivations of constitutional rights.16

Third Cause of Action

The third cause of action is brought under 42 U.S.C. § 1985(3) and 28 U.S.C. §§ 1343(1) and 1343(2) by all Plaintiffs for money damages (punitive and exemplary) against Defendants Paxton and John Does I through V for conspiracy to deprive them of the equal protection of the laws and of equal privileges and immunities under the laws, and to prevent them, by force, intimidation and threat, from giving their "advocacy in a legal manner concerning the election of a lawfully qualified person as President of the United States." There is also an allegation setting up a 42 U.S.C. § 1986 action against Defendant Paxton as one who, having "knowledge that personnel under his command would commit the wrongs described . . . failed to aid in preventing and failed to prevent these wrongs . . ."

Defendants rely upon certain Ninth Circuit cases for the proposition that 42 U.S.C. § 1985(3) reaches only conspiracies under color of state law, citing Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959), from which flowed Koch v. Zuieback, 194 F.Supp. 651 (S.D.Cal. 1961), aff'd, 316 F.2d 1 (9th Cir. 1963). Defendants cited also Norton v. McShane, 332...

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