PARKER, District Judge:
This proceeding presents troublesome questions of standing and prosecutorial discretion. They arise in connection with a citizen's death from gunshot wounds while in custody of Arkansas law enforcement officers. The plaintiffs allege that Federal officials failed to conduct an affirmative and exhaustive investigation of the incident and that they acted arbitrarily, capriciously and in a racially discriminatory manner to determine if the citizen's constitutionally guaranteed and other rights provided by Federal law had been violated.
At this point the defendants present two challenges to the litigation: a motion for change of venue and a motion to dismiss. For the reasons detailed below, the Court concludes that these initial challenges should be denied and that this proceeding should advance to trial.
The plaintiffs are the National Association for the Advancement of Colored People (NAACP), Mrs. Russ, widow of Carnell Russ and the Russ minor children.
The defendants are Edward Levi, the Attorney General of the United States, Clarence Kelley, the Director of the Federal Bureau of Investigation (FBI or Bureau) and certain FBI agents assigned to the Little Rock, Arkansas, office.
Jurisdiction is asserted under 28 U.S.C. § 1343(4) together with the Fifth, Thirteenth and Fourteenth Amendments and the Civil Rights Acts (42 U.S.C. §§ 1981 and 1985). Also, 28 U.S.C. § 1361 in conjunction with 18 U.S.C. § 242, 28 U.S.C. § 509 and the Civil Rights Acts (42 U.S.C. § 1981) are invoked as grounds for jurisdiction.
In an amended complaint seeking declaratory, injunctive and other equitable relief, plaintiffs assert violations of the constitutional and civil rights of Carnell Russ, deceased, a citizen of Arkansas. They seek this Court's aid compelling the defendants to undertake a thorough and meaningful investigation into his fatal shooting. The shooting took place at the Lincoln County Courthouse, Star City, Arkansas, while Russ was in the custody of Arkansas law enforcement officers.
A motion to transfer the proceedings to the Eastern District of Arkansas has been filed by the defendants. They also move to dismiss the complaint and assert: that the plaintiffs lack standing to bring this suit; that they have failed to state a claim upon which relief can be granted; that the Court lacks jurisdiction over the subject matter of the complaint; and, that the doctrine of sovereign immunity shields the defendants from this litigation.
On May 31, 1971, Carnell Russ, a 24 year old black, while operating his motor vehicle on an Arkansas highway, was arrested for an alleged speeding violation by Jerry Mac Green, a white state trooper. Russ was accompanied by his wife, their minor children and an adult cousin. The trooper directed him to the County Courthouse. Russ complied and upon arrival, parked his vehicle and was escorted into the Courthouse by the arresting trooper and two other white law enforcement officers, Charles Ratliff and Norman Draper.
Minutes later, Russ returned to the vehicle where his family awaited. He requested and received from his wife sufficient money to post the necessary collateral. He then joined the three officers who were close by observing his actions. The four retraced their steps with Russ again in custody.
A short time thereafter, Mrs. Russ first observed two of the officers leave and minutes later an ambulance depart from the rear of the Courthouse area where her husband had just entered in the officers' custody. She later learned that Mr. Russ, while under detention, had been shot in the center of his forehead by Ratliff and then transported to a hospital. Green and Draper were the sole witnesses to the shooting. Her husband died from the gunshot wound within hours.
The Governor of Arkansas ordered an immediate investigation of the incident by the State Police. In less than one week Ratliff was indicted for voluntary manslaughter. Plaintiffs allege that minutes or transcripts of the grand jury proceedings were not maintained. Ratliff was tried in January, 1972. The jurors' deliberations consumed less than 15 minutes and in that period they selected a foreperson, reviewed and considered the evidence and returned a verdict of "not guilty". Ratliff's weapon was not offered in evidence during his criminal trial. There was no evidence or testimony that Carnell Russ possessed or had access to a weapon while in custody. Indeed, the testimony was to the contrary.
The shooting triggered the attention of both the national and Arkansas branches of the NAACP. Immediately, those organizations embarked upon a campaign importuning the Justice Department to undertake an independent investigation to determine whether Federal laws had been violated in any manner. Several months following the acquittal of the state trooper, Assistant Attorney General David L. Norman of the Civil Rights Division of the Justice Department wrote to the General Counsel of the NAACP:
After careful examination of the [Ratliff trial] transcript, as well as materials previously submitted by the Federal Bureau of Investigation, this Division has determined that this incident lacks prosecutive merit under federal criminal civil rights statutes. Therefore, we are closing our file.
The plaintiffs allege that subsequent events and disclosures led them to believe that the Department's investigation was superficial, less than thorough and meaningless. The substance of their claim is that the FBI abdicated its responsibility and in effect applied a "whitewash" to the incident; that the Bureau deferred to and relied principally upon a report of the Criminal Investigation Division of the Arkansas State Police; and that the policy to rely solely on the state and local criminal justice system for vindication of a citizen's rights was unreasonable, improper, arbitrary and without a rational basis. Fairly read, the complaint alleges that the defendants acted in an arbitrary, capricious and discriminatory manner by failing to investigate the Russ shooting to determine if his constitutional rights and Federal statutes had been violated by Arkansas law enforcement authorities.
THE VENUE MOTION
The defendants urge the transfer of this litigation to the Eastern District of Arkansas to accommodate the parties and witnesses and to serve the interests of justice. They contend that the majority of the parties are Arkansas residents; most of the witnesses likely to be called are resident of that State; that most of the significant and underlying events, the death, the grand jury investigation of the death, and the subsequent indictment and trial of the state troopers, all took place in Arkansas. Further, they point out that several related and companion civil cases stemming from Russ' death were filed, considered and tried in the Eastern District of Arkansas.
In turn, the plaintiffs argue that the central issue in this litigation involves a denial and deprivation of constitutional and civil rights and the focus is on the official actions and decisions of a Federal government agency -- the Department of Justice and specifically, the Office of the Attorney General and the Federal Bureau of Investigation. The administrators and officials responsible for the final agency action are headquartered in this jurisdiction. The data, reports and memoranda relating to the investigation conducted by the FBI and the Justice Department, if not located here, could certainly be made available with a minimum of delay and difficulty. The final decision of the Department of Justice closing the books on this matter was made in Washington, D.C.
While all of the data and evidence supporting the final decision were conceivably accumulated in Arkansas, a final review and determination was made by Federal officials stationed in this jurisdiction. See: Starnes v. McGuire, 168 U.S.App.D.C. 4, 512 F.2d 918 (1974). Nor is there any suggestion in defendants' memorandum that an agency representative or witness would be harassed, inconvenienced, disadvantaged or that any unusual and unnecessary problems would arise in the absence of a transfer. Indeed, it would appear that the Russ plaintiffs would be more adversely affected than the defendants.
The plaintiffs have made what is presumed to be a considered and deliberate choice of forums. Their choice is entitled to serious consideration and should not be disturbed absent a strong showing that their chosen forum is completely inappropriate and inconvenient, a matter which this Court must resolve by an exercise of its discretion. Norwood v. Kirkpatrick, 349 U.S. 29, 31, 75 S. Ct. 544, 99 L. Ed. 789 (1955); Hoffman v. Goberman, 420 F.2d 423, 426-428 (3rd Cir. 1970). The defendants have not made such a showing. Their motion is denied.
THE MOTION TO DISMISS
The Question of Standing
For more than the last 50 years the NAACP has participated as party plaintiff, as intervenor and as amicus curiae in a variety and ever increasing amount of civil rights litigation. On behalf of its membership and black minorities it has achieved a reputation in both state and Federal courts as an organization with a special interest in the preservation and protection of their civil and constitutional rights. In 1963, Justice William J. Brennan recognized the standing of the NAACP to assert the rights of its members and remarked that the organization engages in litigation
. . . [as] a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country.