McCurry v. Tesch, s. 86-1523
| Decision Date | 23 July 1987 |
| Docket Number | 86-1658,Nos. 86-1523,s. 86-1523 |
| Citation | 824 F.2d 638 |
| Parties | Robert E. McCURRY, et al., Appellees/Cross Appellants, v. Fred TESCH, in his official capacity as Sheriff of Cass County, Nebraska and individually, et al., Appellants/Cross-Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Harold Mosher, Lincoln, Neb., for appellants/cross-appellees.
Michael P. Farris, Washington, D.C., for appellees/cross-appellants.
Before ARNOLD, Circuit Judge, WRIGHT, * Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
This case, which is now before us for the second time, is an action for damages arising out of an incident which occurred at the Faith Baptist Church of Louisville, Nebraska, on October 18, 1982. Shortly after six o'clock that morning, Sheriff Fred Tesch of Cass County, Nebraska, one of the defendants, arrived at the church and, with the assistance of other officers, physically removed about 85 people, including the plaintiffs here, from the church. At the time, the people involved were conducting a "prayer vigil," singing, preaching, reading the Bible, praying, and so forth. The underlying dispute concerned the operation by the church of an illegal school which had been ordered to close, but at the time no school children were present, and no classes were being held. The Sheriff claimed that his action was required by an order of the District Court of Cass County, Nebraska.
When the case was first before us, we held that the exercise of federal jurisdiction was appropriate, and that the order of the state court, set up by the defendants as justification for their action, did not authorize what was done. McCurry v. Tesch, 738 F.2d 271 (8th Cir.1984), cert. denied, 469 U.S. 1211, 105 S.Ct. 1180, 84 L.Ed.2d 328 (1985). We further held that the defendants' actions violated plaintiffs' First Amendment rights to the free exercise of religion and directed the District Court, on remand, to enter a declaratory judgment to that effect. We also directed the District Court to consider whether the defendants were qualifiedly immune from personal liability for damages because of their reasonable reliance on a tenable construction of the order of the state court that they purported to be enforcing.
On remand, the District Court 1 held an evidentiary hearing on the question of qualified immunity. Following the hearing, the District Court sustained this defense. McCurry v. Tesch, No. CV82-L-659 (D.Neb. Dec. 12, 1985). Both sides then moved for summary judgment, based on the evidence adduced at the qualified-immunity hearing, on the claim for declaratory relief. The District Court held for plaintiffs on this issue, McCurry v. Tesch, No. CV82-L-659 (D.Neb. March 25, 1986), and, later, awarded plaintiffs $34,731.46 in attorneys' fees and $4,421.27 in costs. Judgment was entered accordingly. McCurry v. Tesch, No. CV82-L-659 (D.Neb. April 21, 1986).
Both sides now appeal. Defendants claim that our previous decision upholding the exercise of federal jurisdiction was erroneous and should be overruled. Plaintiffs claim that it was error to sustain the defense of qualified immunity, and that the District Court abused its discretion in reducing their request for fees and costs, amounting to more than $67,000.00, to some $39,000.00. We affirm on all issues.
In the first place, we decline defendants' invitation to reexamine and overrule our holdings on the first appeal. Defendants claim essentially that we erroneously exercised some kind of supervisory or appellate jurisdiction over the Nebraska State courts. In fact, we did nothing of the kind. We simply interpreted the state court's order for the purpose of determining whether in fact it authorized the conduct engaged in by the defendant law-enforcement officers. In the course of this interpretation, we applied the canon that governmental commands, including both statutes and court orders, are to be interpreted, if possible, to avoid constitutional issues. We explained our view that the order of the state court was ambiguous, and that, in order to avoid having to decide whether it was invalid, it should prudently be interpreted not to authorize law-enforcement people to carry praying worshippers out of a church. The defendants, having set up the order of the state court as a defense, necessarily placed in issue the meaning of that order. In determining that issue, we did no more than decide the validity of the asserted defense.
In any event, the argument now made--that the federal courts lacked jurisdiction to decide what the state court's order meant--was fully urged, considered, and decided on the prior appeal, see, e.g., 738 F.2d at 274 n. 3, and our holding on that point, even if erroneous, is now the law of the case. To be sure, as defendants urge, the law-of-the-case doctrine is not inflexible. It can be varied to avoid egregiously wrong or unjust results. No such extreme situation is presented here.
Defendants also complain that our previous holding was based on findings of fact first made at the appellate level and wholly unsupported by proof in the record. Our opinion contains the following recitation of fact:
Shortly after 6:00 in the morning of October 18, 1982, the sheriff arrived at the church with fifteen carloads of deputies and state troopers. About 85 persons, including the plaintiffs here, were conducting a "prayer vigil," singing, preaching, reading the Bible, praying, and so forth, to protest the jailing of Mr. Sileven [pastor of the church] and the closing of the school. No school children were present, and no classes were being held. When the worshippers refused to leave, the law-enforcement officers picked them up, carried them out of the church, and padlocked the building.
The trial court is the place for facts to be found. Appellate courts should not find the facts, nor should they, in the ordinary situation, refer to facts outside the record. The statement of facts just given was taken from the brief for plaintiffs-appellants on the first appeal, and the account in this brief was drawn in turn from an affidavit made by one of the plaintiffs, attached as an exhibit to a brief filed by the plaintiffs in the District Court in opposition to defendants' motion to dismiss their amended complaint. The case came up on the first appeal from the District Court's order granting defendants' motion to dismiss, as opposed to a ruling on motion for summary judgment, so ordinarily an affidavit, such as the one involved here, would not be relevant, nor would it be a proper source of factual information for an appellate court. In this case, however, the entire oral argument on the first appeal proceeded on the assumption, concurred in by all parties, that these facts were essentially true. In effect, there was a de facto stipulation as to the relevant facts. We therefore are sensible of no impropriety in including these facts in our opinion.
In any case, the District Court on remand gave both sides an opportunity to present proof on all relevant factual issues, including the history of the case recounted in our opinion. Having done so, the District Court found that our recitation was "essentially accurate," with certain immaterial exceptions. The District Court stated as follows:
The factual statement set out by the court of appeals ... now appears, from the evidence before me, to be essentially accurate, with three reservations:
(1) the number of law enforcement officers who accompanied the sheriff to the church. The testimony set the number at 10 or 12. "Fifteen carloads" is not accurate.
(2) The number of people in the church. "About 85" is not incorrect; it should not be taken as literally established, however. There can be no doubt that many people, approaching the number 100, and including many of the plaintiffs, were in the building....
(3) The activities of the people in the church when the officers arrived and removed them.... I think there was no doubt that at one time or another during the night the plaintiffs or some of them were singing, preaching, reading the Bible, and praying. At the time the officers arrived and picked up the persons in the church and removed them from the building, those persons were praying.
None of the reservations changes the conclusion as stated by the circuit court.
McCurry v. Tesch, No. CV82-L-659 (D.Neb. March 25, 1986), slip op. 4-5. So, if we were guilty of error...
To continue reading
Request your trial
-
U.S. v. Thomas
...Tennessee Valley Auth., 297 U.S. 288, 345-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Cf. McCurry v. Tesch, 824 F.2d 638, 640 (8th Cir.1987) ("statutes and court orders [should be] interpreted, if possible, to avoid constitutional issues"). Thus, we will first ......
-
Habiger v. City of Fargo, Civ. No. A3-93-81.
...long after the orders were executed to learn whether they will be civilly liable for performing an assigned duty.'" McCurry, et al. v. Tesch, 824 F.2d 638, 642 (8th Cir.1987). Thus, if a reasonable police officer could have believed that Habiger's yelling was substantially interfering with ......
-
U.S. v. Local 560 (I.B.T.), 91-5440
...Cir.1991) (court's power to consider its own subject matter jurisdiction circumscribed by the law-of-the-case doctrine); McCurry v. Tesch, 824 F.2d 638, 640 (8th Cir.1987) (court bound by prior decision in the same case on issue relating to subject matter 9 In the obverse situation, where a......
-
Jenkins by Agyei v. State of Mo.
...or reduced and determining a reasonable fee, the district court gave proper weight to the degree of success. See McCurry v. Tesch, 824 F.2d 638, 642 (8th Cir.1987). The State's proposed second reduction would amount to a double deduction by taking away hours relating to the successful claim......