Wounded Knee Legal Defense/Offense Committee v. Federal Bureau of Investigation

• Decision Date: 07 November 1974
• Docket Number: No. 73-1908,73-1908
• Parties: WOUNDED KNEE LEGAL DEFENSE/OFFENSE COMMITTEE et al., Appellants, v. The FEDERAL BUREAU OF INVESTIGATION et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1281

507 F.2d 1281

WOUNDED KNEE LEGAL DEFENSE/OFFENSE COMMITTEE et al., Appellants, v. The FEDERAL BUREAU OF INVESTIGATION et al., Appellees.

No. 73-1908.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 12, 1974.

Decided Nov. 7, 1974.

Lawrence Wm. Steinberg, Beverly Hills, Cal., for appellants.

William F. Clayton, U.S. Atty., Sioux Falls, S.D., for appellees.

Before VOGEL, Senior Circuit Judge, and ROSS and WEBSTER, Circuit judges.

WEBSTER, Circuit Judge.

In this appeal, the Wounded Knee Legal Defense/Offense Committee ('the Committee'), an organization formed to provide free legal aid to the defendants in the criminal cases which followed the occupation of Wounded Knee, South Dakota, by militant American Indians, seeks reversal of an order of the District Court ¹ denying an application for a preliminary injunction against the Federal Bureau of Investigation and related individuals.

The problems giving rise to this case began in March, 1973, when the Committee opened an office in a Rapid City, South Dakota, motel. At that time the area was replete with F.B.I. agents and federal marshals who had been summoned as a result of the Indian action at Wounded Knee. Ill will developed between the two groups almost immediately. ² In June, 1973, the Committee moved its office to a local fraternity house. Shortly thereafter, the F.B.I. moved its agents into a motel about 100 yards from the fraternity house. The hostility between the F.B.I. agents and the Committee increased during the summer as the agents moved about the vicinity and members of the Committee began to photograph them. This hostility culminated in a succession of events which occurred on August 4-6 1973. The details of these events are hotly disputed by the parties. ³

On August 4, two Committee members were arrested by the F.B.I. Thereafter, at least three instances of physical contact between Committee members and F.B.I. agents are reported. The Committee charges that the arrests were made without proper cause and that F.B.I. agents committed numerous acts of assault on its members. The F.B.I., on the other hand, contends that its agents were never guilty of any wrongdoing and that the confrontations in question were initiated by the Committee.

In its application for a preliminary injunction, ⁴ the Committee cited these events and sought to bar the F.B.I. from harassing or intimidating its members and from interfering with their activities. After a lengthy hearing on the matter, the District Court determined that the circumstances did not warrant the issuance of a preliminary injunction and denied the Committee's application in an unreported memorandum decision. The Committee appeals from this denial under 28 U.S.C. 1292(a)(1), and asserts that Judge Bogue erred (1) in failing to recuse himself; (2) in refusing to consider certain affidavits offered in support of its application; and (3) by declining to issue a preliminary injunction. The F.B.I. contends that the District Court lacked subject-matter jurisdiction.

JURISDICTION

We turn first of the issue of jurisdiction. The District Judge found jurisdiction both under 28 U.S.C. 1331 and 1343. In the absence of any asserted act of Congress for the protection of civil rights, or any allegation of state action or action under color thereof, it seems doubtful that 1343 will support jurisdiction here. ⁵ This we need not decide, however, because 1331 supplies the requisite subject-matter jurisdiction. ⁶

The Committee charges that federal agents violated the Fourth Amendment rights of its members and the Sixth Amendment rights of their clients. The Supreme Court determined in Bell v. Hood, 327 U.S. 678, 680, 66 S.Ct. 773, 90 L.Ed. 939 (1946), that a civil suit against federal agents acting within the scope of their authority for damages resulting from their violation of a person's constitutionally protected rights could arise under the Constitution or laws of the United States, as required by the statutory predecessor of 28 U.S.C. 1331. ⁷ Later, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct. 1999, 2001, 29 L.Ed.2d 619 (1971), the Court held that a violation of the Fourth Amendment 'by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.' While in Bivens the plaintiffs sought monetary damages against federal agents, the role of the courts in protecting constitutional rights by injunctive relief is the same, and in appropriate circumstances the federal courts have power to grant injunctive relief against a department of the executive branch of the federal government. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153, aff'g, 103 F.Supp. 569 (D.D.C. 1952) (Secretary of Commerce enjoined from continuing seizure and possession of steel mills); cf. Bell v. Hood, supra, 327 U.S. at 684, 66 S.Ct. 773.

At issue in the merits of the case (not yet determined) is the right of members of the Committee to provide effective assistance of counsel to their Indian clients who wish to avail themselves of their Sixth Amendment rights. Appellees' contention that the Committee has not alleged an actual injury sufficiently personal to present a justiciable case or controversy cannot stand in light of our decision in Nyberg v. City of Virginia, 495 F.2d 1342, 1344 (8th Cir. 1974), wherein we held that the rights of medical doctors to freely practice medicine are so 'inextricably bound up' with the privacy rights of their patients that the doctors have standing to challenge the validity of abortion laws. See also Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). With even stronger force it may be said that a lawyer has standing to challenge any act which interferes with his professional obligation to his client and thereby, through the lawyer, invades the client's constitutional right to counsel. It requires no citation of authorities to reaffirm our historic commitment to effective assistance of counsel in criminal cases. That right may not be fettered by harassment of government officials, and any claim which factually asserts such harassment presents a federal question for our determination.

Nor is this case moot. ⁸ The Supreme Court has repeatedly held that a case does not become moot merely by the cessation of the challenged conduct unless there is no reasonable expectation that the wrong will be repeated. E.g., NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970); United States v. Concentrated Phosphate Export Association, 393 U.S. 199, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); United States v. Trans-Missouri Freight Association, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897).

REFUSAL TO RECUSE

At the outset of the hearing on its application for a preliminary injunction, the Committee requested that Judge Bogue recuse himself pursuant to a motion filed the same day.

The motion to recuse recited that Judge Bogue had personal bias and prejudice against plaintiffs and in favor of defendants; that Judge Bogue had previously granted the recusance motions of two defendants in the criminal cases, Russell Means and Dennis Banks; that Judge Bogue denied similar motions to five other defendants in related criminal cases (the 'leadership' cases); and that the work of plaintiffs was substantially for such defendants in the criminal cases and therefore the complaint for injunction was also on their behalf. At the hearing, the plaintiffs asserted that the order of this court denying mandamus relief but transferring the so-called 'leadership' cases from Judge Bogue to Judge Nichol as an administrative matter was further evidence of the need for disqualification.

The complaint was filed August 13, 1973, together with a Motion for Temporary Restraining Order and for Preliminary Injunction. A supporting memorandum of law and exhibit list were filed August 14, 1973, and a hearing held the same day. On August 16, Judge Bogue entered his memorandum decision denying the motion for a temporary restraining order. Because of short notice to the United States Attorney representing these defendants, Judge Bogue did not deal with the motion for preliminary injunction at that time.

The motion to recuse was filed and heard on September 1, 1973, the date set for the preliminary hearing. Judge Bogue expressed from the bench his view that the criminal cases involving the Wounded Knee leaders were not so interwoven with plaintiffs' interests as to require reversal and denied the motion as 'legally insufficient.'

The only affidavit offered in support of the motion was that of Russell Means, made June 4, 1973, prior to the filing of this complaint. The affidavit asserts the only factual claims of prejudice: that in April, 1973, Judge Bogue expressed concern to Means' attorney because a newspaper reported that Means had asserted the American Indian movement would take western South Dakota by force; that Judge Bogue threatened to revoke Means' bond (he did not do so); that Judge Bogue unreasonably declared his intention to accelerate Means' trial; that Judge Bogue attempted to coerce testimony against Means from Pedro Bissonette; and that Judge Bogue had formed opinions as to the activities of Means and others before charges were brought against them as evidenced by his statements to others.

If the affidavit is legally sufficient, it is the duty of the district judge to disqualify himself notwithstanding the judge would challenge the truth of such allegations. 28 U.S.C. 144; see, e.g., Berger v. United States, 255 U.S. 22, 32, 41 S.Ct. 230, 65 L.Ed. 481 (1921); United States v. Townsend, 478 F.2d 1072, 1073 (3d Cir. 1973). On the other hand, 'an affidavit must strictly comply with all of the statutory requirements before it will...