Rowley v. McMillan

• Citation: 502 F.2d 1326
• Decision Date: 26 July 1974
• Docket Number: 73-2454,Nos. 73-2451,s. 73-2451
• Parties: James ROWLEY and John H. Grimes, Jr., Petitioners, v. Honorable James B. McMILLAN, Judge of the United States District Court for the Western District of North Carolina, Charlotte Division, et al., Respondents. Marvin Ray SPARROW et al., Appellees, v. J. C. GOODMAN, Jr., Chief of Police of Charlotte, N.C., et al., Defendants, James Rowley, Director of the U.S. Secret Service, and John H. Grimes, Jr., Agent of the U.S. Secret Service, Appellants, And divers other Secret Service Agents, et al., Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1326

502 F.2d 1326 James ROWLEY and John H. Grimes, Jr., Petitioners,
v.
Honorable James B. McMILLAN, Judge of the United States
District Court for the Western District of North
Carolina, Charlotte Division, et al.,
Respondents.
Marvin Ray SPARROW et al., Appellees,
v.
J. C. GOODMAN, Jr., Chief of Police of Charlotte, N.C., et
al., Defendants, James Rowley, Director of the U.S. Secret
Service, and John H. Grimes, Jr., Agent of the U.S. Secret
Service, Appellants, And divers other Secret Service Agents,
et al., Defendants. Nos. 73-2451, 73-2454. United States Court of Appeals, Fourth Circuit. Argued April 1, 1974.
Decided July 26, 1974.

Page 1329

James E. Walker and Robert G. McClure, Jr., Charlotte, N.C. (Sanders, Walker & London, Charlotte, N.C., on brief), for petitioners in No. 73-2451.

George S. Daly, Jr., Charlotte, N.C. (Frank Aycock, Charles Lloyd, Asst. Attys. Gen. of N.C., William A. Watts, Asst. City Atty., Hugh L. Lobdell, s. Dean Hamrick and James Monteith, Charlotte, N.C.), for respondents in No. 73-2451.

James E. Walker and Robert G. McClure, Jr., Charlotte, N.C. (Sanders, Walker & London, Charlotte, N.C., on brief), for appellants in No. 73-2454.

George S. Daly, Jr., Charlotte, N.C., for appellees in No. 73-2454.

Before BOREMAN and BRYAN, Senior Circuit Judges, and WINTER, Circuit judge.

WINTER, Circuit Judge:

When the City of Charlotte, North Carolina, proclaimed October 15, 1971 as 'Billy Graham Day' to honor one of its native sons, one of the events scheduled was a rally at the Charlotte Coliseum, a public facility capable of seating 13,000 persons. The public generally was invited and free tickets were widely distributed. In attendance was the President of the United States, and attending and securing his person in part of the premises were members of the Secret Service. Local law enforcement officials were also present, and county police, state police, the F.B.I. and others were consulted. Some members of these latter groups were active in securing presidential safety and in managing and controlling the large number of persons who attended.

As found by the district court, Sparrow v. Goodman, 361 F.Supp. 506 (W.D.N.C.1973), the events inside, including appearances and remarks by the President and Dr. Graham, proceeded without dissenting voice, sign, banner or gesture. But, as further found, certain ticket holders to the event were denied admission, or if once admitted were summarily ejected before the beginning of the program, without apparent justification. The district court found that the criteria of exclusion or expulsion were, inter alia, opposition to the war in Vietnam, advocacy of peace in Vietnam, disapproval of the President, or disapproval of the policies of his administration.

The named plaintiffs, who alleged that they were denied admission or were ejected or were arrested within or without the Coliseum either because they sought peacefully to exercise their constitutional rights by expressing their dissent from the policies of the Nixon administration and their disapproval of the President, or because they were suspected of being persons who might attempt to express such dissent or disapproval, initially brought a class action against named and unnamed members of the Charlotte police department and named and unnamed members of the Secret Service individually and in their official capacities. Joined also as defendants, but only in their official capacities, were the local prosecutor and clerk of court. Declaratory, injunctive and monetary relief were sought.

The district court first heard the case on motion for preliminary injunction and motion by the federal defendants for summary judgment. Evidence was taken and the case briefed and argued. The motion for summary judgment was

Page 1330

denied, and the district court granted a preliminary injunction restraining defendants from

discriminatorily arresting or detaining, or keeping from the general public presence of the President, plaintiffs and others similarly situated, on account of their mode of dress or hair style, life style, peaceable expression of political (including dissenting) views, exercise of constitutional rights of free speech, petition for redress of grievances or right of association, without prior judicial authorization or without probable cause, or for any other cause not rationally necessary for the personal safety of the President.

361 F.Supp. at 587, 588. The order also directed that the action as to damages proceed. The federal, but not the state, defendants appeal the grant of the preliminary injunction and this appeal is No. 73-2454. We affirm the order granting the preliminary injunction.

Before the preliminary injunction was granted, the federal defendants moved to dismiss the complaint as to them on the ground that the district court lacked subject matter jurisdiction because the federal defendants had official immunity to suit. The motion was renewed from time to time, but ultimately denied.

In connection with discovery prior to the trial on the issue of damages, plaintiffs sought discovery by interrogatories. It was resisted on the ground that the information sought to be elicited was privileged. The interrogatories sought to discover (a) the names and addresses of all Secret Service agents at a given entrance to the Charlotte Coliseum on the day in question between given hours, (b) the names and addresses of the persons for whom a 'name check' was run, and (c) for each such person on whom a 'name check' was run, the specific information which was secured as a result of the 'name check' or otherwise. The two latter areas of inquiry were generated by testimony of the Special Agent in Charge of the Secret Service in Charlotte at the hearing on the preliminary injunction to the effect that a 'name check' may have been run on some or all of the persons who were ticket takers at the Coliseum on Billy Graham Day. The district court overruled the federal defendants' objections to these interrogatories, indicating its willingness to consider an appropriate protective order if one should be requested. Thereafter, the federal defendants sought unsuccessfully to obtain a certification for an interlocutory appeal; and when they were directed to answer these interrogatories, they filed a petition for a writ of mandamus and obtained a stay from us before the date for compliance. The petition for mandamus (No. 73-2451) prays that the writ be issued to direct the district court to dismiss the federal defendants from the suit on the ground that they are immune from suit and the controversy is moot, and, alternatively, that the orders directing them to answer the interrogatories be...