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MOSES v. KENNEDY

July 2, 1963

Robert MOSES et al., Plaintiffs,
v.
Robert F. KENNEDY, Attorney General of the United States and J. Edgar Hoover, Director of the Federal Bureau of Investigation of the United States, Defendants



The opinion of the court was delivered by: YOUNGDAHL

This is an action brought by seven Negro residents of Mississippi and one white resident thereof against the Attorney General of the United States and the Director of the Federal Bureau of Investigation, to compel by mandamus certain actions on the part of these defendants, and to declare under the Declaratory Judgment Act certain rights and legal relations between the parties to this action. Defendants have moved to dismiss the complaint on the ground that mandatory relief is not appropriate. The Court will grant defendants' motion on the ground that the complaint fails to state a claim upon which relief can be granted.

 'have been repeatedly requested by plaintiffs and others to perform the statutory duties * * *, but they have refused and failed to do so. * * *

 'Defendants and their agents are in possession of the results of extensive investigations by the Federal Bureau of Investigation and other Federal agencies describing in great detail the incidents set out in (the complaint.) Defendants are therefore able to perform their above statutory duties.' (Complaint, para. 24.)

 Plaintiffs summarize their complaint as follows:

 'This is an action in the nature of mandamus to compel the defendants * * * to perform duties owed to plaintiffs and to the class which they represent, i.e., to protect plaintiffs and their constitutional rights, by the investigation, arrest, and prosecution of offending law enforcement officers of the state of Mississippi and of its political subdivisions, and offending residents of the state of Mississippi acting individually or collectively and/or in concert and conspiracy with said law enforcement officers. By failing and refusing to perform such duties, defendants have in effect sanctioned and perpetuated a consistent pattern on the part of the law enforcement officials of the state of Mississippi and/or private and public citizens thereof inimical to plaintiffs' civil rights and liberties. Declaratory relief is also sought pursuant to 28 U.S.C. 2201.' (para. 2, as amended.)

 This complaint must be dismissed because it seeks remedies which, in the context of the above pleadings, this Court has no power to grant.

 First, plaintiffs seek a court order directing the defendants to direct their agents to arrest, cause to be imprisoned, and institute criminal prosecutions against 'those state and local law enforcement officials and any other persons, public or private, responsible for the deprivations of plaintiffs' rights * * *,' both in the past and in the future. Such actions on the part of defendants, however, are clearly discretionary, and decisions respecting such actions are committed to the Executive branch of the Government, not to the courts. See The Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L. Ed. 196 (1868); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir., 1955); United States v. Woody, 2 F.2d 262 (D.Mont.1924); United States v. Brokaw, 60 F.Supp. 100 (D.Ill.1945); Milliken v. Stone, 16 F.2d 981 (2d Cir., 1927), cert. denied 274 U.S. 748, 74 S. Ct. 764, 71 L. Ed.1331 (1927). The following language states well the reasons for limitations upon judicial power in this area:

 'It by no means follows, however, that the duty to prosecute follows automatically from the presentation of a complaint. The United States Attorney is not a rubber stamp. His problems are not solved by the strict application of an inflexible formula. Rather, their solution calls for the exercise of judgment. * * *

 'There are a number of elements in the equation, and all of them must be carefully considered. Paramount among them is a determination that a prosecution will promote the ends of justice, instill a respect for the law, and advance the cause of ordered liberty. * * *

 'Other considerations are the likelihood of conviction, turning on choice of a strong case to test uncertain law, the degree of criminality, the weight of the evidence, the credibility of witnesses, precedent, policy, the climate of public opinion, timing, and the relative gravity of the offense. In weighing these factors, the prosecutor must apply responsible standards, based, not on loose assumptions, but, on solid evidence balanced in a scale demanding proof beyond a reasonable doubt to overcome the presumption of innocense.' Pugach v. Klein, 193 F.Supp. 630, 634-5 (D.D.C., 1961).

 Such considerations apply to investigations, arrests, and imprisonments, just as much as they do to actual prosecutions.

 Plaintiffs point to language in 42 U.S.C. § 1987 which states that Federal officials are 'authorized and required' to prosecute persons who have violated certain provisions of the Civil Rights Act, and argues that this language makes the above considerations of judgment and discretion inapplicable here. Nothing in the legislative history, however, suggests that this statute should be construed more broadly than any other as far as limitations upon the power of the Judiciary to force the Executive to act are concerned. Indeed, such considerations of judgment and discretion apply with special strength to the area of civil rights, where the Executive Department must be largely free to exercise its considered judgment on questions of whether to proceed by means of prosecution, injunction, varying forms of persuasion, or ...


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