Peek v. Mitchell

• Decision Date: 06 January 1970
• Docket Number: No. 19320.,19320.
• Citation: 419 F.2d 575
• Parties: Lonnie PEEK, Donald Bagley, Reverend George Colman and North Woodward Inter-Faith Corporation, Plaintiffs-Appellants, v. John N. MITCHELL, United States Attorney General, Robert Grace, United States Attorney, William Cahalan, Prosecuting Attorney, Wayne County, Jerome P. Cavanagh, Mayor, City of Detroit, and Johannes Spreen, Commissioner of Police, City of Detroit, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

419 F.2d 575 (1970)

Lonnie PEEK, Donald Bagley, Reverend George Colman and North Woodward Inter-Faith Corporation, Plaintiffs-Appellants, v. John N. MITCHELL, United States Attorney General, Robert Grace, United States Attorney, William Cahalan, Prosecuting Attorney, Wayne County, Jerome P. Cavanagh, Mayor, City of Detroit, and Johannes Spreen, Commissioner of Police, City of Detroit, Defendants-Appellees.

No. 19320.

United States Court of Appeals Sixth Circuit.

January 6, 1970.

Sheldon Otis, Detroit, Mich., for appellants, Otis & Rosenthal, Philo, Maki, Moore, Pitts, Ravitz, Glotta, Cockrel & Robb, Detroit, Mich., on brief.

Robert J. Grace, Detroit, Mich., for John N. Mitchell and Robert Grace.

David R. Kaplan, Detroit, Mich., for William Cahalan, Aloysius J. Suchy and David R. Kaplan, Asst. Pros. Attys., Detroit, Mich., on brief.

William P. Doran, Detroit, Mich., for Jerome P. Cavanagh and Johannes Spreen, Robert Reese, Corp. Counsel, William P. Doran and John E. Cross, Asst. Corps. Counsel, Detroit, Mich., on brief.

Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and BROOKS^*, District Judge.

PECK, Circuit Judge.

Plaintiffs brought suit against the named federal, county and city officials seeking injunctive relief in the nature of mandamus under the Civil Rights Act.¹ The District Court issued show cause orders and each of the defendants filed motions to vacate the order and to dismiss the complaint. At the close of the oral arguments, the District Court vacated the show cause orders and dismissed the complaint. Plaintiffs appeal from this dismissal.

Plaintiffs contend that the defendants have failed to prosecute the persons known by the defendants to have violated the civil rights of black persons and specifically have failed to prosecute the two Detroit policemen who committed civil rights violations during the Poor People's Campaign on May 13, 1968; that the defendants have condoned and encouraged this unlawful activity by failing to prosecute or to take other appropriate disciplinary measures; and that the defendants have failed to create proper investigatory practices in handling civil rights complaints within their respective offices. Plaintiffs further listed thirteen items of relief, of which a few are set out below, against the Mayor and Commissioner of Police of Detroit. They sought to compel these public officials to force the city's policemen to discontinue all acts of violence and discrimination against the black people; to discipline or discharge all racially biased and prejudiced policemen; to establish fitness tests and standards to screen applicants for employment as policemen; and to initiate a program of human relations and sensitivity training for all city policemen.

The District Court based the dismissal upon its findings that the complaint failed to set forth a cause of action since the plaintiffs were mere volunteers in this action with no justiciable interest in the subject matter and thus had no standing to sue, and further that relief was not available in this case to control the discretionary and investigatory functions of the respective defendants. The Court also found that under the fundamental concepts of separation of powers, the federal district courts could not "act as a receiver or trustee of the Detroit Police Department" nor "set the standards and qualifications for local police officers."

In considering the merits of this complaint, we must determine whether the plaintiffs' allegations in fact state a cause of action upon which relief may be granted under the Civil Rights Act.

The plaintiffs sought to compel by mandamus the Attorney General and the United States Attorney for the Eastern District of Michigan to prosecute known civil rights violators; to alter the present scope and method of their investigations; and to conduct particular investigations. These defendants contend that this alleged activity cannot be compelled by mandamus since the investigation and institution of criminal prosecution falls within their discretion. We agree with the defendants' contention and find that the judicial control sought by the plaintiffs regarding these two defendants is beyond the power of this Court.

The Court in Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234, 235 (1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966), where an action in mandamus was sought against the Attorney General, stated that:

"It is well settled that the question of whether and when prosecution is to be instituted is within the discretion of the Attorney General. Mandamus will not lie to control the exercise of this discretion. E. g., Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1868); Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965), affirming sub nom. Moses v. Kennedy, 219 F.Supp. 762 (D.D.C.1963); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir. 1955); Pugach v. Klein, 193 F.Supp. 630 (S.D.N.Y.1961); United States v. Brokaw, 60 F.Supp. 100 (S.D.Ill.1945)."

The same consideration applies equally as well to the United States Attorney. The Fifth Circuit in United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965), stated that:

"The attorney for the United States is an * * * executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions."

See also Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479, 481

(1967); Moses v. Katzenbach, 119 U.S. App.D.C. 352, 342 F.2d 931 (1965) (concurring opinion).

It is therefore clear that the plaintiffs have not stated a cause of action under the Civil Rights Act against the Attorney General and the United States Attorney and that the District Court properly dismissed the complaint against them.

We come next to the defendants at the county and municipal levels, namely, the Prosecuting Attorney for Wayne County, Michigan, and the Mayor and Commissioner of Police of the City of Detroit. These officials raise, as one of their defenses, the claim that as quasi-judicial and executive officials they are immune from suit while acting in their official capacities since they are granted a wide latitude of discretion in the discharge of their duties. The law is quite clear that prosecuting officials are not liable under the Civil Rights Act for damages in connection with official prosecutions, (Bauers v. Heisel, 361 F.2d 581, 586 n. 7 (3d Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967); Puett v. City of Detroit, 323 F.2d 591 (6th Cir. 1963), cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed. 2d 975 (1964)) and that the executive and other public officials enjoy a qualified privilege in a suit for damages under the Civil Rights Act. Nelson v. Knox, 256 F.2d 312 (6th Cir. 1958); Cobb v. City of Malden, 202 F.2d 701 (1st Cir. 1953). Here the plaintiffs seek only injunctive relief against these county and city officials for a claimed "systematic pattern" of conduct under the color of state law that deprives them of their rights, privileges or immunities under the Constitution of the United States.

Plaintiffs contend that there is no immunity against injunctive type suits for these three defendants. See United States v. Clark, 249 F.Supp. 720, 727 (S.D.Ala.1965). We agree with the plaintiffs that injunction and mandamus are traditionally used for enjoining or challenging public officials' conduct, (United States v. White County Bridge Comm., 275 F.2d 529, 534 (7th Cir.), cert. denied, Clippinger v. United States, 364 U.S. 818, 81 S.Ct. 50, 5 L.Ed.2d 48 (1960)) and that they are proper remedies under the Civil Rights Act when the alleged unconstitutional...