Earl Warren: Number 79, Robert L.Pierson, et al., petitioners versus J.L. Ray et al. And Number 94 J.L. Ray et al. versus Robert L. Pierson. Mr. Rachlin.
Carl Rachlin: Mr. Chief Justice, may it please the Court. The complaint here alleged two causes of action, one based upon Title 42, Section 1983 of the 18 -- based upon the 1871 Civil Rights Act and the second cause of action was a common law action for false imprisonment. The defendants in each -- of each of these causes of action were the police officers and the convicting magistrate who had incarcerated the petitioners herein, the petitioners being one of Negro and three white Episcopal ministers who were arrested in the bus station in Jackson, Mississippi. At the trial, before on the damage question which is present before this Court before Judge Mize of the Southern District of Mississippi, before him in a jury, there was a verdict for the defendant that is the respondents here. The petitioners appeal to the Fifth Circuit and the Fifth Circuit reversed because of errors made by Judge Mize with regard to the admission of evidence. However, in reversing the Fifth Circuit dismissed the case against the magistrate respondents Pierson here and in so far of damages was concerned set forth a rule on the new trial which indicated that if there was a finding, that there was a plan and purpose to be arrested then the petitioners here could not recover in the trial. It was on those two issues purely. On those two issues mainly that we came to this Court and upon our petition certiorari was granted by this Court.
John M. Harlan II: (Inaudible)
Carl Rachlin: They are raised in the cross-petition Your Honor by my colleague but they are not raised by us. Now, very briefly and I will try to be very brief because there are the forth questions of law and noble to this Court. Very briefly, the facts are as follows. The general convention of the Episcopal Church, the trial in general convention of Episcopal Church was to be held in September 1961 in Detroit. The petitioners here particularly petitioner Reverend John Morris who was the Director of the Episcopal Society for Cultural and Racial Unity, thought it would be great witness for that church to hold a prayer pilgrimage beginning in New Orleans and ending in Detroit and on the way bearing Christian witness to factors in various communities going up generally to Mississippi Valley on the way to Detroit with intention of stopping to places like Suwanee, Dearborn, Michigan as well as Jackson, Mississippi and they set out by bus from New Orleans and arrived in Jackson and spent the night on the day before the arrest were made here at Tougaloo College. There had been of course some publicity in the papers and the news, in the radio about their activities. But the next morning when they went with tickets for the -- for Continental Railway bus to Chattanooga and they had not given any publicity, there's nothing in the record which indicates that anyone knew when they were arriving at the bus station. And the fact of the matter is that the record reflects that when they did arrive at the bus station no one was waiting for them, the police testimony was very clear on that point. They arrived quietly in taxi cabs. There were two police waiting on the back ramp of the bus station. The police went around the back way and met the priest as they walked through the main entrance of the bus station passed a police expansion right in front of the entrance to the bus station which said "White only by order of the police." As they went into the door of the bus station, Father Jones, one of the petitioners here heard one of the officer say, "Shall we get them now or shall we wait until later. In any event, the -- there were 15 priests on this group, four of whom are petitioners here walked through the entrance and started towards the coffee shop a few feet inside the bus station. A few of them of the 15 did actually get into the coffee shop but at that point, one of the two officers, either officer Nichols and Griffith, two of the respondents here halted them and made them come -- those who are in the bus station come back and they halt at the whole group and were told to move on. At this point, one of the priests said, "We're on our way to Chattanooga. We have tickets and we wanted to have -- it will be a long trip, we wanted to have coffee or sandwich or something before we take off on our trip." No coffee, the police officer said, "Move on." With no moving on they were arrested and not being told, the record doesn't reflect why they were they were being arrested at that point or what they were being arrested for or why they were told to move on. But in any event, a few moments later the respondent Ray, the deputy chief of police of Jackson, Mississippi at that time the captain of the police came in the station and immediately went up to these people and told him to move on not seeking information from the other police officer who are already under arrest. In any event, they went on and he told to move on. They repeated the same thing, they wanted to have a sandwich before they took off to Chattanooga and he at that point not moving on, he also arrested them and they were then taken off in the traditional Jackson paddy wagon to the jail and whether they stay two days later where the case was then tried before the Magistrate Spencer who convicted them and sentenced them him to the maximum sentence of four months in jail for the offense that they committed as well as a fine which was put upon them. All the petitioners here remained in jail for at least seven and Father Jones I think something like 17 or 18 days. The reason being that Bell was coming from various communities to help them out and took at least seven days to get there and more for Father Jones. In any event, after they all were released, they went on to the convention, they appealed the case and in Mississippi, the first appellate procedure is this de novo trial and after de novo trial of Father Jones, the first one tried, after the prosecution's case was in, motion was made to dismiss and the judge presiding at that level dismissed the case on the grounds there was no showing of a violation of the statute was there and all the other cases were accordingly now crossed. At that point, shortly thereafter, the complaints served and the case before us and was tried as I said for Judge Mize, defendant's verdict we appealed to the Fifth Circuit as indicated. Now, the first issue that I would like to spend some time is the one -- in which the Fifth Circuit dismissed the action against the convicting magistrate Spencer, one of the respondents herein. Now, it is our position that this was an error for many reasons and I would like to go into that somewhat. The statute of course 1983 the opening words are every person so that on its face anyone who violates 1983 who violates 1983, whoever, whatever his position in life may be is liable. But question then is, are there any limitations in this broad language which should be a guide to any court considering the matter. Prior to the well known case decided by this Court in 1951 of Tenney against Brandhove, there had only been one case interpreting this point to the best of our knowledge and that was the case entitled Picking against the Pennsylvania Railroad, a Third Circuit case which held in the manner that we are requesting this Court to hold. That is there was not an immunity for a judge who violated the statute. However, Tenney against Brandhove set off a whole line of cases which I referred to in both of the opinion of the court below and are referred to in my worthy opponent's brief. And in fact, I think this Court has either accepted or is considering certiorari in two related cases involving Dombrowski case and a Bauers against Heisel case on related questions. Every circuit deciding the case since Tenney has decided in a manner which we consider in error in interpreting the statute. Now, Tenney involves --
Potter Stewart: To -- has to judicial immunity?
Carl Rachlin: There's a judicial, yes, Your Honor.
Potter Stewart: You are referring now only to this judicial defendant.
Carl Rachlin: I am not concerned with any other questions, Your Honor. Now, Tenney involves of course a state legislature -- legislator of the State of California who was sued under 1983 by someone claiming that he Tenney have violated his rights. Now, under Tenney, the majority decision was based upon was considered to be the ancient immunity of the legislators and there is no other basis for that decision as set forth in the decision. Oddly enough, this, of course, reason is irrelevant because if the 1871 Congress wanted to specifically include state legislators the fact that there may have been an ancient history exempting legislators would be of no consequence whatsoever. However, the majority decision in Tenney is decided solely on the basis of the ancient history of immunity to state legislators. Now, there were at least two other ways in which the case could have been decided in the same -- coming to the same conclusion which would have however been more accurately a reflection of the law and I would like to dwell on those for a moment. The first one of course concerns the legislative history of 1983. When Congressman Shielbagga (ph) of Ohio introduced the legislation we are concerned with in the House of Representative in 1871, he made the following comments and I read from the congressional law appendix of March 28, 1871 42nd Congress First Session, he said as follows. "My first inquiry is as to the warrant which we have for enacting such as section as this.The model forth will be found in the second section of the Act of 89 -- 1866." If I may interpolate, those are the sections of Title 18 241 and 242 which have been considered by this Court in Price for example -- U.S. against Price for example. That section provides a criminal proceeding in identically the same case as this one provides a civil remedy. Now, that being so if the majority opinion in Tenney had followed that forth along and would have turn to Senator Trumbull's explanation in the Congressional Globe of April 4, 1866 when he replied to the veto by the then President Johnson of the 1866 Act Title, that is what now titled 18241 and 242. President Johnson referred specifically to the point that came up in Tenney against Brandhove and what does he say? Who is to be -- and I quote from page 1758 of the Act of the Congressional Globe of April 4, 1866, "Who is to be punished?" Is the law to be punished? Are the men who make the law to be punished? Is that the language of the Bill?" Not at all. If any person on the color of any law shall subject another to the deprivation of a right to which he is entitled, he is to be punished. The person who is under the color of the law, does the act not the man who made the law" and goes on in that way. In other words, what he is saying very specifically is that both from the point of view of the intent of the Congress of that period and from the point of view of the analysis of the words of the statute, state legislators were immune under both Title 18240, what is now Title 182141 and of course under Title 42 1983. In other words, state legislators are to be immune but what does he say about judges? In other words, he makes the very distinction that we are trying to make in this particular case. And because I might interpolate again, President Johnson when he vetoed this 1866 Act two of the reasons specifically given by him for his veto concerned the immunity of legislators and that the alleged denials of the legislators and the alleged denial of immunity of judges. Now we have seen Senator Trumbull who replied to President Johnson as to what he said about legislators. Now this is what he said about judges. When it is said that under this provisions, judges of the Court and ministry of offices who are engaged in the execution of sub-statutes may be punished and that is made in objection to this bill referring to this president's veto. I admit that a ministry of officers or a judge if the acts corruptly or viciously in the execution or under power of any illegal act may be and ought to be punished but if he acted innocently the judge would not be punished, and further on a judge who acted innocently and not viciously or oppressively would never be convicted under this Act.
Abe Fortas: Is that what you're contending here? Are you contending, Mr. Rachlin, are you contending that the judge here acted corruptly?
Carl Rachlin: We are contending, Your Honor that the judge here knowingly and willfully intend as our complaint alleges in paragraph 22 on page 5 of the record that the judge, so far as judge is concerned convicted and deprived the petitioners of rights, privilege and immunity, etcetera for the sole purpose of enforcing the segregation laws, customs, policies and usages in the State of Mississippi.
Abe Fortas: Do you contend that that's corrupt?
Carl Rachlin: I would contend that that is what is considered to be a violation what we considered to be a violation of the statute, deliberately imprisoning someone without any evidence in the record and that --
Abe Fortas: That's not supported by that quotation is it, that you just read.
Carl Rachlin: I'm sorry sir.
Abe Fortas: It's not supported by the quotation that you just read. Your position is not supported by the quotation that you just read.
Carl Rachlin: I would not -- I would not accept that Your Honor.
Abe Fortas: That's what I would like to know this time, that's your position with that --
Carl Rachlin: Let me go back to my quotation. We -- what Senator Trumbull has said here, the person who has acted innocently the judge would not be punished and we don't dispute that -- we accept that of course. And --
Abe Fortas: My trouble is what is innocence (Voice Overlap)
Carl Rachlin: What is innocence? Because he also says, if he acts corruptly or viciously, now I am not -- I don't viciously is not a word of art. It's common points but I would certainly think that that would apply to a judge who without evidence convicted and incarcerated people knowing there was no evidence and this is based upon not only what I say about the case and what the complaint says about the case but the fact that on the first appellant level, the judge who tried the case dismissed on the prosecution's evidence because he said there was no evidence to show a violation of the statute. And we say the record reflects, though that is not important from the purposes of position we're taking here in this case, that they were convicted because there is a sign outside the bus station said that anyone who went to that bus station who was Negro was in violation of the law because that sign said, "White Only" by order of the police and it's hard to conceive of what that means except in terms of anyone other than a white person who enters or whites and negroes who enter together are in violation and that's why they were arrested because the testimony of the police here says these petitioners did actually no act which could be remotely considered wrong and unlike the Adderley case, these people had a right to be here. There was no question they have a right to be in a bus station quietly and peacefully with tickets on their hands, about to go off to Chattanooga. Whatever the merits of an Adderley type situation, they don't apply here at all because these people have a public right to be there and they were asked to leave not for anything they did but because that sign outside the door of the station did not permit them to enter the station.
Abe Fortas: And he had jurisdiction -- the judge have jurisdiction, did he not?
Carl Rachlin: Yes, no question. He was -- he was -- they were charged under a Mississippi statute that's totally conduct statute in that sense he have jurisdiction of course, there's no question on that. But we think the intent or the Congress of 1871 from reading the Congressional Globe at that time is so carefully drawn against the sham justice that was perpetuated in the period from 1866 through period of 1871 but the very kind of conduct that is considered in this case is the kind of conduct the 1871 Congress was concerned about. They were concerned about the phony justice, the sham justice, the police who arrest and the judges who convict when there was no evidence of any wrongdoing.
John M. Harlan II: (Inaudible)
Carl Rachlin: Absolutely not because the distinction that we draw and we think that Senator Trumbull who draws the distinction perhaps better than we can, we think that a distinction is here that when a judge knowingly to perpetuate an illegal custom such as segregation then he would be liable. But if he makes a mere error of judgment or is unacquainted with the law, that would not be any violation of 1983. We're not questioning his right to continue judgment. We can't -- we do question the right to sit for example, to take of a case which I think might lay out the situation. We do question the right of a judge to meet with hoodlums the night before he knows he's going to have a try a case and tell the hoodlums, "Okay, fellows, I am going to give the -- throw the book at these guys tomorrow morning when I try them." That's the kind of case we are talking about. And the decision of the Fifth Circuit and of the other circuits if upheld does not permit 1983 to cover a judge under those circumstances. Now, if just -- every case that comes since Tenney against Brandhove, even with Tenney who has a state legislator case, every case that has been decided by the circuit courts and there have been several since then have decided solely on the basis of Tenney, even though Tenney refers to a state legislator, those cases which referred to judges are given the decision in the same manner as if they have Tenney -- applications to the Tenney doctrine. But Tenney has in the sense -- if I could be permitted to say so led the court astray by an improper analysis of the statutes 1871, 1866. It is our position that if Tenney had been decided on the basis of the legislative history and the analysis of the words of the statute, the other courts would not have made the mistake. As a matter of fact Judge Magruder of the First Circuit in Francis against Crafts which has been referred to by the court below and by our worthy opponents is a typical case where Judge Magruder in that position says, the statute is very broad and I am very grateful that the Supreme Court has decided Tenney against Brandhove because in effect it takes me off hook and this is precisely what Judge Magruder who was a verifying judge has said in a case involving a judge in Massachusetts, so that the trouble has stemmed from what the courts has decided in Tenney. Now, Tenney I would hope that Tenney would be reconsidered in terms of not be decision because the decision is basically correct in the light of the statutory history but it is wrong in terms of the reason. If the right reason is given that all of the other cases that have been decided after Tenney become meaningless and this Court then is considering not only de novo from the point of view of an issue that has the liability of the judge under the statute but is not -- is not based with the question of decisions made by the lower courts to the contrary and there's only -- then there was only one decision which has a meaning and that's Picking against Pennsylvania Railroad. Hardly enough, not one of the cases with the exception of Bauers against Heisel which I believe this submitted a petition for certiorari and when we decide a month ago by the Third Circuit not one of the cases following Tenney --
William J. Brennan, Jr.: Is that -- is that the one about prosecuting (Voice Overlap).
Carl Rachlin: That's a New Jersey state prosecutor, Your Honor, yes. That's the only one of the cases which even makes a brushing reference to the legislative history.
William J. Brennan, Jr.: Immunity was suspended thereto.
Carl Rachlin: By the Third Circuit Your Honor and the Third Circuit there in substance said that it was overruling. Its prior decision in Picking against the Pennsylvania Railroad though the one was a judge and the other was a prosecutor and perhaps they might to different conclusions under the same statute.
William J. Brennan, Jr.: Well, does the Third Circuit hold there that the prosecutor is entitled to an immunity because the judge has decided it?
Carl Rachlin: Yes, as a matter of fact, it was precisely that reason that was partly judicial process and that prosecutor was part of the process and ought to be immune as a judge but even there, there the Court set en banc in Bauers against Heisel and there were four opinions either concurring only specifically only in the result and specifically saying that they were not going to go into the question of legislative history and two that rejected the -- they rejected the decision because the legislative history was on the contrary in Bauers against Heisel. In fact, Judge Vance of the First Circuit has what we as the proper analysis of the statute and goes into the legislative history in some detail. Whereas the majority of the court there gives in a footnote a brushing reference to a part of the legislative history, ignores most of it and ignores the result of all and says, "we're decided the case on the basis of Tenney against Brandhove." Now, with that kind of record, we think that there is nothing in the legislative history here nor in the word of the statute which sustains the immunity of judges. We think that from the -- what we have set in our brief, that it was clearly the intention of the 1871 and the 1866 Congresses in passing these two complementary statute that is the Criminal Act under Title 2 -- Title 18 and the Civil Act in the Title 42 clearly unmistakably intended to include judges and what are the proof of it we say is in the fact that persons on both sides of the debate in the halls of Congress acknowledge this result. They may have disagreed with the virtue of the wisdom of it but they both agreed, they both agreed that the judges were liable if they committed a violation of the act in the terms of Senator Trumbull were not immune.
Hugo L. Black: Is it your argument that every judge who turned somebody to lose can be sued and has no immunity.
Carl Rachlin: No, Your Honor, I would say that the only judge who was liable is one who convicts with -- and not intending to deprive him of --
Hugo L. Black: All of them could be sued for it and will have to prove his motive.
Carl Rachlin: Yes, Your Honor that would be true.
Hugo L. Black: That's your argument. Every judge who tries a person in United States under this Act can be prosecuted on the basis of that Act and if convicted of the crime.
Carl Rachlin: On the 1866 Act, if he were shown to be in violative of the Act, yes. We say that there was no immunity by the virtue of the office and if he violated the Act, yes he would be liable or be in a civil suit for damage, -- he is liable for damages if it were shown and prove a violation of the Act. We -- I don't -- it isn't -- of course people can be sued and improperly sued but I would assume that there are lots of people who hold important positions in the United States that could be sued --
Hugo L. Black: What about the appellate court judges?
Carl Rachlin: Well, first it doesn't apply to federal judges, Your Honor. The federal judges are exempt by the terms of the statute. It only applies under the color of state law.
Hugo L. Black: I assume that it could apply to federal judges.
Carl Rachlin: I don't see how it could, Your Honor. I don't see how it could under the terms of the statute. It does not apply only criminal act under the color of the state law.
Hugo L. Black: Well, would that apply to Supreme Court judges of the states?
Carl Rachlin: I suppose theoretically, it could.
Hugo L. Black: Theoretically, it --
Carl Rachlin: Yes.
Hugo L. Black: -- actually would.
Carl Rachlin: Well, actually in the sense that yes they could be sued and if they were --
Hugo L. Black: And they have to try on the basis of evidence how guilty they thought the man was.
Carl Rachlin: That would be so, Your Honor. And I -- but I think that while that I think is the correct interpretation of the statute. There are lots of people. There are particularly, it takes a surgeon who holds a person's life in its hands every time he operates on someone has no immunity and if a judge acts corruptly or viciously would and when there is no evidence and with a deliberate intent to deprive somebody of a right that he is entitled to. I can see no reason why a judge would be in put in a position that a surgeon is not.
Hugo L. Black: There are few defendants who've been convicted who didn't think that they were deprived the right roughly and prove by the judge.
Carl Rachlin: Well, that may be true but in the case before us, Your Honor, that isn't the facts. The -- the fact is of a first appellate level, the case was dismissed because there was no evidence to show a violation of the statute in the first place. And whatever that may be in other situations and that we are saying that there should be no rule which grants an automatic immunity. We say that there is only -- I'm sorry sir.
Hugo L. Black: My questions do not mean that I would say that you are wrong but it seems to me like that's precisely direct statement if you may that the consequences of your argument.
Carl Rachlin: And Your Honor is correct and those are possible consequences of the argument I make and I would have to face that, put her back.
Abe Fortas: Well, what you've just said is narrowed and the position reflected by your complaint as I read it, your complaint does not even allege any motive in part of the judge.
Carl Rachlin: Well, it goes to this extent -- I'm sorry, I should have brought.
Abe Fortas: It does not relate -- allege any motive on the part of the judge. It says that these people were convicted in violation of their civil rights for the sole purpose of enforcing segregation laws. You don't have any allegation of corruption or perhaps motives or vicious purpose or anything of the sort. Is that right?
Carl Rachlin: Well, I think, I am sorry but I would think that if a judge convicts somebody for the sole purpose of enforcing segregation laws, customs, that's spelled out a violation.
Abe Fortas: Do you allege here that a state judge convicted a person for the sole purpose of enforcing the segregation laws, customs, policies and you suggest are of the State of Mississippi?
Carl Rachlin: That's right.
Abe Fortas: And usually state judges are supposed to do that and this is a supervening federal law.
Carl Rachlin: Well they -- they were convicted under the color of the state law, that is the disorderly conduct statute of the state but not because there was any evidence showing a violation of the state statute but solely for the purpose of convicting and incarcerating these people because the state contended to uphold the segregation laws of the state and if he merely made a mistake of the evidence, we would say that no matter how long it might be that we would not think he was liable but where he does it with the intent as we say for the purpose of upholding the laws, we think that spelled out the same thing that's going to -- it sums in the trouble we're discussing. The second -- I'm sorry my time is up. Thank you very much.
Earl Warren: We'll get it from your brief.
Carl Rachlin: Mrs. Grayson.
Elizabeth Watkins Hulen Grayson: Mr. Chief Justice and Associate Justices. With due apology to my opposing counsel I don't think that this Court is place to argue disputed questions of fact as if they were being argued before a jury. And my position is that that's what opposing counsel has done, they have argued their own testimony or their own complaint of allegations in that complaint without any record whatsoever to prove on the other side on what was a jury issue or issues in this case. This is a suit in tort of money damages in two counts, based on the common law for false arrest and second on the 1983. The issues before this Court, the jury came in with the decision for the defendant on disputed questions of fact. The issues before this Court are not rather those facts were arrived and decided by that jury because it was a jury issue and we'll go back after this decision to be a jury issue regardless of this decision it has to be based and go back for a trial by a jury. The issues in this case of whether or not there is any judicial immunity as a matter of law when there was no proof whatsoever of any corruption or any wrong intent and whether or not there is a partial or limited immunity to police officers who act in good faith with reasonable grounds to believe that it was a question of fact, with reasonable grounds to prove, to believe that the statute was being violated. That they were -- that they had probably cause which as I state is a question of fact. I therefore will only discuss factual issues and as to the limited extent of pointing out to Your Honors that there was a disputed question of fact on the right to the police officers to believe that there was probable cause of a breach of the peace. And in doing so, I hope the Court will recall and keep in mind that this could in 1961, we would look at the facts of the case in view of the times. We must look at the facts in the case in the view of the mood of the people, of the tenseness of the people in the City of Jackson. In 1961, we must look at the case in the view of what the law was in 1961, how far the constitutional standards have been changed since then?
Byron R. White: Mrs. Grayson, excuse me.
Elizabeth Watkins Hulen Grayson: Yes, Mr. Justice White.
Byron R. White: Did I understand you to say that your claim for judicial immunity here stems from the absence of any proof of corruption or evil motive?
Elizabeth Watkins Hulen Grayson: I would agree with counsel that if there was proof that a judge was actually corrupt that then a judge could be liable. Here, that Judge Mize submitted it to the jury, the judge's immunity along with the policeman's immunity.
Byron R. White: Well, let's assume for the moment that a judge deliberately convicts someone when he knows there is no evidence whatsoever.
Elizabeth Watkins Hulen Grayson: I presume that if you could prove that Your Honor I believe that they would be liable. If there was no evidence and he did it deliberately with the intent to hurt that person. Now, if he were mistaken --
Byron R. White: So you and Mr. Rachlin essentially agree on what the law --
Elizabeth Watkins Hulen Grayson: Except to the extent to which that has got to be proved. I don't, in my in own heart do not feel the judges should be submitted to suits. It would have to be so clear that they -- before they should be submitted to having to defend themselves. The proof would have to be so clear. Here Judge Mize note that they -- he would let it go to the jury and he did with the verdict of the defendant. The Court of Appeals for the Fifth Circuit said there was no evidence whatsoever and that it is against the judge and it should have been dismissed.
William J. Brennan, Jr.: May I ask you Mrs. Grayson of what, under what instruction did Judge Mize sent it to the jury?
Elizabeth Watkins Hulen Grayson: There's no question of the instructions not being tried. If they have --
William J. Brennan, Jr.: What were the instructions?
Elizabeth Watkins Hulen Grayson: Now, that I can't tell you verbatim (Voice Overlap). The record is long and I don't recall the exact wording of them but there's been no question raised on either side as --
William J. Brennan, Jr.: Well I know but I wonder, did Judge Mize submitted under some instruction that if the defendant judge were found guilty of corrupt or vicious or something like that.
Elizabeth Watkins Hulen Grayson: If Your Honor please, I will have to beg off on that one, because I don't recall how that instruction was worded or just how it was submitted.
Byron R. White: Is the instruction in the record?
Elizabeth Watkins Hulen Grayson: But when -- yes sir, it's in the record. But when it went to the Fifth Circuit, the Fifth Circuit said there was no evidence whatsoever against Judge Spencer and therefore that he is sued should it been dismissed on the motion which was made after the conclusion of the evidence. If Your Honor please, briefly on the facts, now recalling that this is 1961 that the Freedom Writers had the balance in Alabama just two months before, that just a month before this occurred, there had been Freedom Writers in Jackson and they had caused almost violence at that time. This becoming of these --
Byron R. White: Mrs. Grayson, just let me pursue this other question just a moment. Let's assume a judge says, "Well, I agree -- I agree that the Supreme Court of the United States has decided the case in a certain way and if that case applies to this case but I think the Supreme Court is wrong and I am not going to follow the Supreme Court."
Elizabeth Watkins Hulen Grayson: Oh! No, sir. I would say there was no liability whatsoever, that's a matter of judgment and that's the interpretation of the law.
Byron R. White: So that is not what you're saying?
Elizabeth Watkins Hulen Grayson: No, sir.
Byron R. White: So he might deliberately decide to try a man of constitutional rights but that wouldn't make him liable?
Elizabeth Watkins Hulen Grayson: No, sir. Not unless he was doing it corruptly. The illustration that Mr. Rachlin used would be properly got together the night before and conspired with one side and said, "I'm going to deliberately decide for your and throw the book at them." Now, that might be corrupt but not a judge differing with the Supreme Court of the United States by the other court do I think is corrupt.
Byron R. White: What if the judge says well I know the Civil Rights Act of 1964 requires equal service and public accommodation.
Elizabeth Watkins Hulen Grayson: Yes - no, I would say not.
Byron R. White: And I know that the owner of that the public accommodations refused service and the judges, but I just don't agree with that statute.
Elizabeth Watkins Hulen Grayson: No sir, I would say that that was his honest conviction on what the law was.
Byron R. White: Well, but if he says, "I know what the law is I just won't follow."
Elizabeth Watkins Hulen Grayson: Well, --
Byron R. White: Here's the statute I know that --
Elizabeth Watkins Hulen Grayson: You're getting a little deep, if Your Honor please. That's a rather serious question that has not presented here or whatsoever. This statute would not only has never been held unconstitutional yet under which they acted under which they were asked but the Supreme Court of Mississippi two years after Judge Spencer's decision affirm similar cases and made exactly the same decisions so you couldn't possibly say here that there was any -- I know what the law is. The law was valid on his face under which they were arrested. These policemen, these practitioners in their garb ?- church garb mixed group broadcast the fact and planned deliberately to come down to Jackson, Mississippi to be arrested so they could be what they call witnesses of incarceration and go to Detroit as being the witnesses they came to be arrested. They broadcast it over television, newspapers and what they were going to do, they came down on the road -- in taxis, to the bus station and went in. Now, the opposing counsel has not given you the testimony on the other side. They went in and there is testimony that 30 to 40 people followed them in that they have angry expressions, that they were muttering and that they followed them into the bus station. This -- this group of churchmen turned into the left and started towards the restaurant and two distant policemen on the street told them to move on. They turned back and instead of moving, blocked the stairway in the bus stations, stood in those narrow halls and something the jury didn't mean to be told was that in fact the bus station is a very small room and proceeded to recite the Lord's Prayer. There was a crowd, not only had 30 or 40 followed them in but they had -- there was crowd in the station. There was muttering, mumbling, wrongful and violent gestures, until all three, Mr. Ray and the other two policemen testified emphatically that they felt imbalance was about to ensue and that it would ensue if they did not arrest them and this is not a criminal case on which the criminal convictions would be involved which would be decided on different principles of law and different faces of proof why you'd have to prove guilt of such a crime of breach of the peace beyond reasonable doubt. This is a case where the only proof necessary is, don't need those simple policemen standing there on that day without going on believing and assuming their own testimony to be true for the matter of this argument. Now, probable cause to believe that that balance was going to ensue.
Hugo L. Black: Mrs. Grayson, where will we find in the record there statement to say were coming Jackson for the purpose of being arrested?
Elizabeth Watkins Hulen Grayson: If Your Honors please, I have to find that in my brief. I report to you there are long group of directives on levels which were written to the whole group before they came in which they were told what they were going to do and how they were going to do it. And those letters go from page 224 on for the next 50 pages these original levels to this placement to which they said that they were planning which one should go to jail. The place is everything will consign 15 to jail and let the rest go on and be with until about (Inaudible) Detroit what happen. Then in another place, another letter said we think now as that better part or valid to consign only a dozen of them to jail. And then they told in these letters you must stay that long enough without getting bailed because she wouldn't be a proper witness of incarceration if you didn't stay there a little while and it run from about these 224 in the record. It came from these letters.
Abe Fortas: Mrs. Grayson. I beg your pardon.
Elizabeth Watkins Hulen Grayson: Yes, sir.
Abe Fortas: Do you agree that the -- or do you think that the complaint here stated cause of action?
Elizabeth Watkins Hulen Grayson: Yes, sir. There's no question raised for what complaint stated the cause of action. He went to trial on the case that --
Abe Fortas: Do you think that the complaint alleges the necessary intent or will or attitude on the part alleges the necessary intent or will or attitude on the part of the judge and the policeman.
Elizabeth Watkins Hulen Grayson: Well, no question was raised about it at the moment. The conclusion of the plaintiff's testimony there was a motion to dismiss as to the judge filed which Judge Mize overruled and that's what the Fifth Circuit said should have been sustained because no evidence. But there was no objection made to the complaint on no objection made to the jurisdiction of the court whatsoever.
Abe Fortas: Well, I must say that reading the complaint, I don't have it yet been able to find the allegations with respect to intent.
Elizabeth Watkins Hulen Grayson: No, sir, they are not raised. But we did not raise the point that the complaint. Of course, they sued them all jointly in the beginning with the judge couldn't have a separate motion I guess that there as a complaint as to him but as I recall no motions on the section was filed.
Abe Fortas: Do you concede now the complaint which does not allege a vicious intent or purpose on the part of the judge that placed the state's cause of action?
Elizabeth Watkins Hulen Grayson: No, sir. No, sir, I do not think it does.
Abe Fortas: It's nevertheless did not file a motion to --
Elizabeth Watkins Hulen Grayson: There was no motion filed until after the conclusion of evidence to dismiss and execute the judge. And may I now state for the Court when they went before the judge. Here was a breach of the peace statute unlike the South Carolina statute, unlike the Louisiana statute, not vague and indefinite valid on its face, at that time, the law was final and Cantwell I believe it was, Cantwell. Those were the two decisions of this Court which upheld Constitution that final statute was identical with Mississippi statute. It was not unconstitutional on its face. It never been held unconstitutional and has never to this date been held unconstitutional although they were -- insist on referring to it as an unconstitutional statute. It has never -- it may have been at times unconstitutionally enforced but never unconstitutional per se. They were brought before Judge Benson and he is an ex-official justice of peace in municipal criminal court, a small city court, criminal court. He is part time. He was not brilliantly trained lawyer. If he was as I say the Supreme Court of Mississippi two years later upheld the statute and upheld convictions under them. The cases came to trial, all of these petitioners were represented by two attorneys, and I think Mr. Rachlin was one of them. They have attorneys in court. They could have had a jury trial. They did not request it. They did not testify their own behalf. The policeman testified and these petitioners said, "What do you expect the judge to do? With the valid statute, the policeman saying it was misstated and they -- the defendants not saying a word it painfully demonstrate that time. They wanted to be witnesses of incarceration, and that they let it off at that moment they wouldn't be it. Then they went on later to the appeal to Judge Moore and I think that differ with opposing counsel, the fact that the judge said that there was no evidence. That only thing in this record is the record of dismissal with no ground whatsoever to dismiss because it could have been dismissed on the interpretation of the law. It could have been dismissed on insufficient evidence or as the petitioners themselves complained in their letters. They resented the fact that Judge Moore dismissed it because they were Episcopal preachers. They did not want to dismiss on that ground. So the mere fact that they were acquitted later is apparent in what they are saying shows corruption on the part of our judge -- on the part of Judge Spencer. Just briefly further on the immunity of judges in this Tenney versus Brandhove this Court went thoroughly into the legislative history on 1983 went out there and learnedly into it and came to the conclusion that there was nothing in the legislative history of 1983 to show any intent on the part of Congress to change the common law liability of the tort to get it -- to make it anything except a common law tort. I would not purport to attempt to go into the history of that congressional act in 1871 to the extent that Tenney versus Brandhove did but the basis or the end of that testimony, of their position as to the legislative history was that there was no intent to change common law tort liability. And of course the common law tort liability of legislator this was immunity just as strong as the common law of tort immunity, liability immunity of judges. That goes back to Bradley versus Fisher in 80 U.S. 335 where it is of a remarkable position on the necessity power, the reason power, and the common law immunity of judges.
William J. Brennan, Jr.: Bradley and Fisher was in the constitutional position, was it? I mean the immunity there was not rested along the Constitution.
Elizabeth Watkins Hulen Grayson: No, sir I don't think so. I don't recall that it had that it was a constitutional question.
William J. Brennan, Jr.: Common law immunity.
Elizabeth Watkins Hulen Grayson: It was a common law immunity. That's why I tell you the Tenney versus Brandhove goes back to the common law immunity of legislators. The later cases in every cases in every circuit is based on it except its knowing through the Fifth Circuit have held that the same reasoning shows that the legislator's intent was not to change common law immunity of judges and there's no reason why it should that the intent was not to change the common law tort liability.
William J. Brennan, Jr.: You mean under 1983 because this had no such purpose.
Elizabeth Watkins Hulen Grayson: Yes, had no such purpose.
William J. Brennan, Jr.: But what about this language that Mr. Rachlin has referred to us in the legislative history of the Senate versus the (Inaudible)?
Elizabeth Watkins Hulen Grayson: He has picked -- he has picked scattered passages from the congressional record. I say that if Tenney versus Brandhove went to it thoroughly and they said there was nothing in the act to indicate any intent to change the common law that the legislative common law immunity was old, was such a judicial common immunity and that's the reason I mentioned Bradley versus Bishop because it is the leading case in the common law immunity of the judges. Since then every circuit that has passed on it the first, the second, the third, the fifth, sixth, the seventh and eight have all held that Tenney versus Brandhove applies to judges. And we don't need to argue here whether it needs to be complete absolute immunity are just partial limited immunity because there was no testimony in this record whatsoever that the judges ever heard of these people before they just appeared in this Court that he had no conversation of any of the policemen about him or anybody about him that he had any connection or any intent whatsoever, any corrupt intent on his part. So we don't even need absolute immunity in this case. And I would like to hurry on to the immunity of policeman because --
Earl Warren: May I ask this question, do you believe Tenney versus Brandhove as meaning that there is no liability because there's no corruption shown.
Elizabeth Watkins Hulen Grayson: As I recall, the case did not discussed the issue that it was actual corruption. Now, when I say admitted that it was actual corruption, I mean actual. I don't think that that into that case anymore than it does here. I don't think there was any question.
Earl Warren: But awhile ago you said that you agreed counsel that if he had done this, say corruptly, the judge would have been liable. Now do you read Tenney versus Brandhove to mean that if Tenney had been corrupt in what it did that he would have been liable?
Elizabeth Watkins Hulen Grayson: If Your Honor please, I read Tenney versus Brandhove as merely saying there was no intent to change the common law. Now, if you go back to the common law of the judicial immunity don't you find that exception if there's actual corruption?
Earl Warren: Do we? I --
Elizabeth Watkins Hulen Grayson: I think that that would go back to the common law and all Tenney versus Brandhove was saying was that the legislative Congress intended to change the common law.
Earl Warren: So it depends on what the construction of the common law was?
Elizabeth Watkins Hulen Grayson: Yes, sir. I think that is the test as what the construction of the common law was.
Byron R. White: And you suggest that the judicial immunity pleads the common law made an exception to that immunity in cases of the corrupt judge.
Elizabeth Watkins Hulen Grayson: I think that it did. I have never felt that there was any thought of any corruption of this case and have not carefully gone and read that question because there's never --
Hugo L. Black: About ten year (Inaudible), I was in there too. I never had any remote idea that you should get those words that leads to the impression that a legislator making a speech working on the legislative body could be sued by showing that he was corrupt.
Elizabeth Watkins Hulen Grayson: That -- because you will know better than I do. I don't recall that it was discussed --
Hugo L. Black: I am not familiar with anything in it but I said --
Elizabeth Watkins Hulen Grayson: Yes, That's why my impression was that it was not involved and it was not discussed whatsoever.
Hugo L. Black: What they held was that he's immune?
Elizabeth Watkins Hulen Grayson: Absolutely.
Hugo L. Black: At trial, absolutely.
Elizabeth Watkins Hulen Grayson: And even though corruption. I have no fault to find with the Court if they feel that way. I feel -- never felt my finding of Judge Spencer. I mean I just have always thought that if there was actual corruption that the immunity might not go that far.
William J. Brennan, Jr.: Even though it did for legislators at common law?
Elizabeth Watkins Hulen Grayson: No, sir.
William J. Brennan, Jr.: You never thought that it did for judges at common law would also expect --
Elizabeth Watkins Hulen Grayson: No, sir. I would think that any immunity --
William J. Brennan, Jr.: You're leading a little bit on the side of the dissent in (Inaudible) cases.
Elizabeth Watkins Hulen Grayson: In the what? I didn't understand you Mr. Justice.
William J. Brennan, Jr.: I'm talking about my dissent in the opinion on the case. It sounds like you're --
Elizabeth Watkins Hulen Grayson: Leaving that way. But I do say that all the question of corruptness is decide the issue in this case, we don't have to go that far. We don't have to go whether they have actually corrupt, actual corrupt evidence because there was none. There wasn't any evidence of anything except the judge giving his best judgment which I'd like to get to the immunity of the police officers because if there is anyone that I feel have stand here that needs representation and that I would like to do my best to represent, it is the policeman on these trouble times. When he doesn't know what to do, he has to make snap decisions. He has no lawyer running along his side to tell him what the law is and what the facts are whether he's right. He can't remember afterwards, take all his could in this past summer then thousands of arrests where a policeman have arrested people where they have thought at the time that they were justified. Suppose one of those men three years later say well I was acquitted. The policeman doesn't remember he hasn't got down witnesses and get names, get ready for a lawsuit three or four years from now. He doesn't know what the fine points of the law. He has got to use his best judgment in whether or not there is violence about to occur. And that is what we submit. That is the common law immunity of police officers, it just as goes as far back as the immunity of judges. If they have reasonable grounds to believe that there's probable cause about a balance, then under the common law breach of the peace they have a right to make an arrest without a warrant. In other words, probable cause is a complete defense to the police officers who are sued for damages at common law. There is no change under the 1983 --
Potter Stewart: Was it a suit for a false arrest or --
Elizabeth Watkins Hulen Grayson: False arrest, yes.
Potter Stewart: Yes.
William J. Brennan, Jr.: Well, that would be true under Monroe versus Pape too, wasn't it?
Elizabeth Watkins Hulen Grayson: Plainly Monroe versus Pape does not say -- it doesn't say to the contrary. It has nothing to do with this case, because that was a search and seizure case and under the search and seizure case there is no defense of probable cause. They searched the man's house not in good faith and also search it --
William J. Brennan, Jr.: Without a warrant.
Elizabeth Watkins Hulen Grayson: Without a warrant and for false imprisonment case, probable cause on the part of the police officer is a complete defense. In illegal search without a prior arrest, probable cause is no defense whatsoever. When that case was remanded it was only before this Court because the complaint had been dismissed does not state in the cause of action and this Court merely said that it's stated a cause of action and remanded it which I don't make any complaint because it came into nearer to state cause of action than that one -- complete the state of the cause of action than that one did. This cause remanded it and they resulted in the District Court in the jury verdict for the plaintiff and then the defendants of motion judgments notwithstanding brought up that the probable cause for the search and the District Court dismissed it and said that probable cause is no defense whatsoever to an illegal search because of the constitutional provision and that therefore there was no defense whatsoever to that. There has been no change in that common law rule any more than immunity of judges in the -- under 1983.
Potter Stewart: On this point, you disagree with the Court of Appeals, don't you?
Elizabeth Watkins Hulen Grayson: This is the point under which we petition cross-appeal, cross-certiorari on the ground that the Fifth Circuit held that probable cause was a defense to the common law --
Potter Stewart: Not to 1983.
Elizabeth Watkins Hulen Grayson: Not to 1983. In the opinion, they merely said that the rule may be otherwise under 1983 and cited no case which is held that is different under 1983 and yet held that under 1983 probable cause was no defense and because if this when this case goes back we should have it a right to submit in that jury again is or whether or not those police officers because the common law controls and still is effective just as much as to police officers under 1983 that would be to judicial officers. The Monroe said that the 1983 must be read in the light of the common law tort liability. It has not in any way changed the common law of what the tort is that they could be sued for and in this instance it was false imprisonment. I don't think this Court is in any doubt in its thorough brief of false imprisonment is a complete defense of the common law I mean that the probable cause is a complete defense at the common law. All that the Fifth Circuit said to the Court there decision was that inherent in the Monroe holding if the principle was in good faith and relied on the state statute subsequently declared invalid are not valid as the defenses. I do not have time to point out Your Honor that the section breach of peace statute has never been held unconstitutional. Now, this Court at the time this occurred, the rule was then final and which was held constitutional. In Thomas versus State two years after this occurrence, the Supreme Court of Mississippi held it valid. This is unlike Edwards versus South Carolina or Cox versus Louisiana where the Court held that if the statute was vague because it said that breach of the peace could include such things as this rest or this qua of vague general words. In Mississippi and Thomas versus State they held it had, it meant violence that a breach of the peace required violence. And that's what the proof of this case showed that the police officers believe but even if this Court should now hold --
Potter Stewart: I know this case showed there was no violence.
Elizabeth Watkins Hulen Grayson: That violence was imminent. Our statute permits a cause -- a breach of the peace.
Potter Stewart: Yes, not actual violence, just a possibility of violence, imminent violence.
Elizabeth Watkins Hulen Grayson: Under such circumstances, now the breach of the peace are valid as our court interpreted it can maybe can occur is the language of the statute but even if this Court should now six years later or five years later hold the statute unconstitutional, which I don't think it will that's not even pled, they didn't that it's unconstitutional statute. The rule in Mississippi and the rule of most places is that unconstitutional law is a nullity cannot be applied to work hardship to oppose liability on a public officer who in the performance of his duty was acting in good faith in reliance on the validity of the statute before any court has decided it in valid. Mississippi follows that rule. Most of the fact if not all of the rules note that as an exception that a public officer cannot be held. There's a difference between the Ham case where you say a conviction can be handed down and the -- the opposite here where you can't impose liability on someone which were illegal when they did it and then come along six years later, saying we're going to make that, that there was constitutional statute then but we're going to make it illegal now. I do not have time to go into the point on petition that planned that that is not just a defense, the planning to come and not just to anticipate and they might be arrested but planning to come. That is not a mere defense like assumption of written (Inaudible) opposing counsel would have you believe, it's inherent in the talk itself there is no false imprisonment if there was consent just as there no (Inaudible) if there was consent, there's no assault if there's consent. There are certain torts that whenever there is consent, there are no tort to begin with so it's different from a defense. I would like to urge--
Earl Warren: You may complete the statement --
Elizabeth Watkins Hulen Grayson: I urge the Court to give this case serious consideration because of its importance in the future litigation of the thousands of cases in the federal court and on the effect, it will have on the police force all over the country if they are subject to sue and subject to money damages with little pay in families and they are subject upon to suits for damages. It can have a disastrous effect on protection of the public.
William J. Brennan, Jr.: Mrs. Grayson, may ask this last question.
Elizabeth Watkins Hulen Grayson: Yes, Your Honor.
William J. Brennan, Jr.: Are you asking us to reconsider Monroe and Pape?
Elizabeth Watkins Hulen Grayson: Oh no sir. I said, our position is that there has nothing to do with this case whatsoever.
William J. Brennan, Jr.: Well the Court of Appeals relied heavily on Monroe.
Elizabeth Watkins Hulen Grayson: Yes sir and I think they thoroughly misunderstood it. It was a search and seizure case by probable cause had no -- there's no defense whatsoever.
William J. Brennan, Jr.: Well, as I -- as I read their opinion they rely on Monroe and Pape in saying that good faith is irrelevant.
Elizabeth Watkins Hulen Grayson: Yes.
William J. Brennan, Jr.: If in fact the color of the state statute would say tort was valid.
Elizabeth Watkins Hulen Grayson: They say it's inherent in Monroe versus Pape that the good faith under the state's statute come on excess under 1983 only was immaterial. Monroe versus Pape didn't even deal with acting under state statute in good faith believing it was to be valid. There they were acting without any -- on contrary to the state statute.
William J. Brennan, Jr.: Well your answer to me is that you don't want us to reconsider it just to say that the Fifth Circuit misapplied the holding.
Elizabeth Watkins Hulen Grayson: Misapplied. It didn't have anything to do with acting under a state statute which would later declare unconstitutional. They were acting without statute because contrary to the state statute.
Potter Stewart: And by definition the search and seizure under Monroe against Pape could only be illegal if there was no probable cause and there was therefore a finding when damages are found that there was no probable cause that took that defense away, is that your point?
Elizabeth Watkins Hulen Grayson: Yes.
Hugo L. Black: Would you mind -- Excuse me.
Elizabeth Watkins Hulen Grayson: Yes, Mr. Black.
Hugo L. Black: Would you mind telling me in the Senate just what is the question the state presents in its petition for certiorari?
Elizabeth Watkins Hulen Grayson: Well, the state is not here. You mean the petitioner, the one error of the court below in saying that the probable cause is not a defense to false imprisonment under 1983. They said it was a defense under the common law. But they held it was not a defense under 1983 with we submit with no justification presented.
Potter Stewart: Well, the police --
William J. Brennan, Jr.: In other words, if this is to go back, would you try against the officer? As I read the Court of Appeals, the only factual issue is going to be consented invitation?
Elizabeth Watkins Hulen Grayson: Yes.
William J. Brennan, Jr.: And you suggest that there has to be an addition of perhaps a reversal and affirmance of the District Court where the grounds that the issue of probable cause was properly in the case and was properly submitted to the jury.
Elizabeth Watkins Hulen Grayson: Yes, we submit it to a new jury.
William J. Brennan, Jr.: If there is to be a new trial?
Elizabeth Watkins Hulen Grayson: On the new trial.
Byron R. White: Well are you given under your position there has to be a new trial because there were errors of evidence?
Elizabeth Watkins Hulen Grayson: Well, we in our brief we have said that felt the Fifth Circuit differed on error erred in saying that those were errors in the evidence but I have not have time to argue. They were just small matters of evidence.