Morgan v. Rhodes

• Decision Date: 15 February 1972
• Docket Number: No. 71-1335.,71-1335.
• Citation: 456 F.2d 608
• Parties: Craig MORGAN et al., Plaintiffs-Appellants, v. James RHODES et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

456 F.2d 608 (1972)

Craig MORGAN et al., Plaintiffs-Appellants, v. James RHODES et al., Defendants-Appellees.

No. 71-1335.

United States Court of Appeals, Sixth Circuit.

February 15, 1972.

Sanford Jay Rosen, New York City, Harold Weinstein, Cleveland, Ohio, on brief; Michael E. Geltner, Stanley K. Laughlin, Columbus, Ohio, Melvin Wulf, Sanford Jay Rosen, Lawrence Sager, New York City, of counsel, for plaintiffs-appellants.

Michael R. Grove, Columbus, Ohio, William J. Brown, Atty. Gen., Thomas V. Martin, Asst. Atty. Gen., Columbus, Ohio, on brief, for defendants-appellees.

Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.

EDWARDS, Circuit Judge.

In this case certain students at Kent State University, including officers of the Student Association, and other student organizations, seek broad injunctive relief against the Governor of Ohio and the commanding officers of the Ohio National Guard, and a declaratory judgment, declaring unconstitutional a certain immunity statute, Ohio Rev.Code § 2923.55 (Supp.1969). The complaint was brought under 42 U.S.C. § 1983 (1970), with jurisdiction asserted under 28 U.S.C. § 1343(3) (1970).

The District Judge dismissed the complaint on motion without either answer or affidavits being filed by appellees, and without hearing. His brief order stated that the pleading failed to state a claim cognizable under federal law.

The disposition employed by the District Judge is, of course, the least favored judgment which the appellate courts review. Here the issues (assuming for the moment some triable issues were stated) have never become joined. Appellees have never even filed either answer or motion for summary judgment supported by affidavits.

When a case comes to us in such a posture, we are compelled to assume the truth of all of the plaintiffs' allegations of fact, plus the reasonable inferences which flow from those facts.

This court has recently restated these principles:

"This cause having come before this Court on a dismissal, the allegations of the complaint must be taken as true, and any legitimate inferences arising therefrom must be construed in favor of the Appellants. See Jenkins v. McKeithen, 395 U.S. 411, 423-424, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959); Taylor v. Kentucky State Bar Association, 424 F.2d 478, 480 (6th Cir. 1970)." Honey v. Goodman, 432 F.2d 333, 336 (6th Cir. 1970).

This fundamental statement of the same principles is found in a unanimous United States Supreme Court decision:

"In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim uness it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.5

"5 See, e. g., Leimer v. State Mutual Life Assur. Co., 8 Cir. 108 F.2d 302; Dioguardi v. Durning, 2 Cir. 139 F.2d 774; Continental Collieries v. Shober, 3 Cir., 130 F.2d 631." Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

No one is under our system of law turned away from the courthouse door without a proper adjudication if he has filed a sworn complaint which is cognizable in our law.

With these principles in mind, we turn to analyze the instant complaint. We believe that fairly read it seeks to state three related causes of action:

1) In the first instance the complaint is an attack upon the "premature" calling out of the Ohio National Guard by Governor Rhodes on May 1, 1970, and its dispatch to the campus of Kent State University "to displace civilian authority." The relief sought is an injunction against such "premature" employment of the Guard on future occasions.

2) The complaint also constitutes an attack upon the conduct of the Guard troops upon their arrival at Kent State. Here the allegations are that the defendants, who controlled the troops, without necessity for doing so violated the students' rights of speech and assembly, made unconstitutional arrests, beat and injured students "needlessly" and employed live rifle fire against an unarmed crowd and killed and injured a number of students without appropriate legal justification. In this phase of the complaint the allegations also are that these claimed violations resulted from policies and practices of defendants which constitute a continuing pattern of conduct which threatens plaintiffs with future such violations.

3) The complaint also seeks a declaratory judgment finding unconstitutional an Ohio Statute, Ohio Rev.Code § 2923.55 (Supp.1969), which under certain detailed circumstances purports to grant immunity to National Guard troops (and other law enforcement personnel) from criminal charges arising out of their activities in suppressing riots. Each of these causes of action (although dismissed as a whole) deserves separate consideration.

I The Attack Upon the Executive Emergency Power

In this aspect of this appeal appellants ask the courts to engage in prior restraint upon the exercise of emergency power specifically committed by constitution to the executive branch of government. In this phase of the pleading we find no facts which call for hearing, no relief sought which the court below could appropriately have granted, and no allegations of a breach of actionable rights. As to this aspect of the case, we affirm the District Court.

At the outset, this complaint concedes that there was disorder which had not been terminated by normal civilian controls and that such disorders were continuing as of the time the Governor called out the troops. The complaint says:

"10. On or about May 1, 1970, there occurred certain disorders in the area of the Kent campus which resulted in the imposition of a curfew by the mayor of Kent. Thereafter, demonstrations and disorders continued in and about the Kent campus."

Executive decisions to call out military force have been litigated a number of times in the history of the Republic. Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688 (1946); Sterling v. Constantin, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375 (1932); Moyer v. Peabody, 212 U.S. 78, 29 S.Ct. 235, 53 L.Ed. 410 (1909); Ex parte Milligan, 4 Wall. 2, 71 U.S. 2, 18 L.Ed. 281 (1866); Luther v. Borden, 7 How. 1, 48 U.S. 1, 12 L.Ed. 581 (1849); Martin v. Mott, 12 Wheat. 19, 25 U.S. 19, 6 L.Ed. 537 (1827). But we find no instance where the courts have sought to substitute judicial judgment for the constitutionally empowered judgment of the executive. Still less have the courts cumbered that executive judgment with the prior restraint of an injunction seeking to describe in advance the precise conditions which would make its exercise appropriate.

Indeed, in the case principally relied upon by appellants, the Supreme Court of the United States said:

"As the state has no more important interest than the maintenance of law and order, the power it confers upon its Governor as chief executive and commander in chief of its military forces to suppress insurrection and to preserve the peace is of the highest consequence. The determinations that the Governor makes within the range of that authority have all the weight which can be attributed to state action, and they must be viewed in the light of the object to which they may properly be addressed and with full recognition of its importance. It is with appreciation of the gravity of such an issue that the governing principles have been declared.

"By virtue of his duty to `cause the laws to be faithfully executed,\' the executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has arisen. His decision to that effect is conclusive. That construction, this Court has said, in speaking of the power constitutionally conferred by the Congress upon the President to call the militia into actual service, `necessarily results from the nature of the power itself, and from the manifest object contemplated.\' The power `is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union.\' Martin v. Mott, 12 Wheat. 19, 29, 30, 6 L.Ed. 537. Similar effect, for corresponding reasons, is ascribed to the exercise by the Governor of a state of his discretion in calling out its military forces to suppress insurrection and disorder. Luther v. Borden, 7 How. 1, 45, 12 L.Ed. 581; Moyer v. Peabody, 212 U.S. 78, 83, 29 S.Ct. 235, 53 L.Ed. 410.." Sterling v. Constantin, 287 U.S. 378, 399, 53 S.Ct. 190, 195-196, 77 L.Ed. 375 (1932).

Recently the Fourth Circuit provided some of the practical logic for our decision on this point:

"The responsibility for maintaining public peace on a day-to-day basis is lodged with the executive branch of government. As we recently have become all too painfully aware, public peace in our cities may be suddenly breached by massive civil disorder. Dealing with such an emergency situation requires an immediacy of action that is not possible for judges. We think it would be highly inappropriate for us, removed from the primary responsibility for maintaining order and with the benefit of time for reflection not available to the mayor, to substitute our judgment of necessity for his." United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971).

II The Alleged Continuing Threats to Constitutional Rights

As to the second cause of action sought to be pled, we quote in full the relevant language from the complaint:

"On May 4, 1970, members of the Ohio National Guard fired their guns into a crowd of persons on the Kent State University main campus, injuring several students and killing four. The culpable and legally unjustified shooting of unarmed civilians by Ohio National Guard troops deprived such persons of life and liberty without due process of law.

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"(b) Defendants failed to

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