GALELLA v. ONASSIS

United States Court of Appeals,

Second Circuit.

Decided Sept. 13, 1973.

Rehearing and Rehearing En Banc Denied Nov. 13, 1973.

J. JOSEPH SMITH, Circuit Judge:

Donald Galella, a free-lance photographer, appeals from a summary judgment dismissing his complaint against three Secret Service agents for false arrest, malicious prosecution and interference with trade (S.D.N.Y., Edward C. McLean, Judge), [FN1] the dismissal after trial of his identical complaint against Jacqueline Onassis and the grant of injunctive relief to defendant Onassis on her counterclaim and to the intervenor, the United States, on its intervening complaint and a third judgment retaxing transcript costs to plaintiff (S.D.N.Y., Irving Ben Cooper, Judge), 353 F.Supp. 196 (1972). In addition to numerous alleged procedural errors, Galella raises the First Amendment as an absolute shield against liability to any sanctions. The judgments dismissing the complaints are affirmed; the grant of injunctive relief is affirmed as herein modified. Taxation of costs against the plaintiff is affirmed in part, reversed in part.

FN1. "MEMORANDUM DECISIONS BY

THE COURT

70 Civ. 4348

The nature of this controversy between plaintiff, a professional photographer, and defendant Jacqueline Onassis, the widow of President Kennedy is briefly described in my memorandum on motion No . 79 decided herewith.

The present motion is made by defendants Walsh, Kalafatis and Connelly to dismiss the action against them for failure to state a claim. They have supported their motion by affidavits. I will treat it as a motion for summary judgment.

The moving defendants are Special Agents of the United States Secret Service. The Secret Service is charged by statute with the responsibility for protecting the persons of minor children of a former president until they reach the age of 16. 18 U.S.C. ' 3056. These defendants were assigned to protect the children of President Kennedy, Caroline and John Jr., neither of whom is sixteen. They were acting in that capacity throughout the period involved in this action.

It is well settled that a government employee is immune from suit for acts done in the course of his official duties within the scope of his employment. Barr v. Mateo [Matteo] 360 U.S. 564 [79 S.Ct. 1335, 3 L.Ed.2d 1434] (1959); Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949); Ove Gustavsson Contracting Co. v. Floete, 299 F.2d 655 (2d Cir. 1962).

The question is whether these defendants were acting within the scope of their employment in performing the acts of which plaintiff complains. I have no doubt that they were. The fact that plaintiff feels aggrieved by their acts is immaterial. Doubtless this is a factual question but plaintiff's affidavits in opposition to this motion do not raise a triable issue on this aspect of the case. For sound policy reasons explained at length in the decisions on the subject, these agents, under the circumstances of this case are immune from suit and may not be called upon to defend themselves against plaintiff's extravagant claims.

The decision of the Supreme Court in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics [403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619] (June 21, 1971) relied upon by plaintiff does not, in my opinion, require the denial of this motion. Not only were the facts of that case very different from those here, but more important, the Supreme Court expressly stated that it was not passing upon the question of immunity from liability by virtue of their official position. 39 U.S. Law Week at 4824.

The motion is granted. The action is dismissed as against John Walsh, James Kalafatis and John Connelly.

/s/ EDWARD McLEAN

USDJ

Dated: July 2, 1971"

 

Galella is a free-lance photographer specializing in the making and sale of photographs of well-known persons. Defendant Onassis is the widow of the late President, John F. Kennedy, mother of the two Kennedy children, John and Caroline, and is the wife of Aristotle Onassis, widely known shipping figure and reputed multimillionaire. John Walsh, James Kalafatis and John Connelly are U. S. Secret Service agents assigned to the duty of protecting the Kennedy children under 18 U.S.C. ' 3056, which provides for protection of the children of deceased presidents up to the age of 16.

Galella fancies himself as a "paparazzo" (literally a kind of annoying insect, perhaps roughly equivalent to the English "gadfly.") Paparazzi make themselves as visible to the public and obnoxious to their photographic subjects as possible to aid in the advertisement and wide sale of their works. [FN2]

FN2. The newspapers report a recent incident in which one Marlon Brando, annoyed by Galella, punched Galella, breaking Galella's jaw and infecting Brando's hand.

 

Some examples of Galella's conduct brought out at trial are illustrative. Galella took pictures of John Kennedy riding his bicycle in Central Park across the way from his home. He jumped out into the boy's path, causing the agents concern for John's safety. The agents' reaction and interrogation of Galella led to Galella's arrest and his action against the agents; Galella on other occasions interrupted Caroline at tennis, and invaded the children's private schools. At one time he came uncomfortably close in a power boat to Mrs. Onassis swimming. He often jumped and postured around while taking pictures of her party notably at a theater opening but also on numerous other occasions. He followed a practice of bribing apartment house, restaurant and nightclub doormen as well as romancing a family servant to keep him advised of the movements of the family.

After detention and arrest following complaint by the Secret Service agents protecting Mrs. Onassis' son and his acquittal in the state court, Galella filed suit in state court against the agents and Mrs. Onassis. Galella claimed that under orders from Mrs. Onassis, the three agents had falsely arrested and maliciously prosecuted him, and that this incident in addition to several others described in the complaint constituted an unlawful interference with his trade.

Mrs. Onassis answered denying any role in the arrest or any part in the claimed interference with his attempts to photograph her, and counterclaimed for damages [FN3] and injunctive relief, charging that Galella had invaded her privacy, assaulted and battered her, intentionally inflicted emotional distress and engaged in a campaign of harassment.

FN3. The damage claim was later dropped and a claim for violation of New York Civil Rights Act '' 50, 51 (McKinney's Consol.Laws, c. 6 1948) added.

 

The action was removed under 28 U.S.C. ' 1442(a) to the United States District Court. On a motion for summary judgment, Galella's claim against the Secret Service agents was dismissed, the court finding that the agents were acting within the scope of their authority and thus were immune from prosecution. At the same time, the government intervened requesting injunctive relief from the activities of Galella which obstructed the Secret Service's ability to protect Mrs. Onassis' children. [FN4] Galella's motion to remand the case to state court, just prior to trial, was denied.

FN4. The Secret Service is responsible for protecting the children of former presidents until the age of 16. 18 U.S.C. ' 3056.

 

Certain incidents of photographic coverage by Galella, subsequent to an agreement among the parties for Galella not to so engage, resulted in the issuance of a temporary restraining order to prevent further harassment of Mrs. Onassis and the children. Galella was enjoined from "harassing, alarming, startling, tormenting, touching the person of the defendant . . . or her children . . . and from blocking their movements in the public places and thoroughfares, invading their immediate zone of privacy by means of physical movements, gestures or with photographic equipment and from performing any act reasonably calculated to place the lives and safety of the defendant . . . and her children in jeopardy." Within two months, Galella was charged with violation of the temporary restraining order; a new order was signed which required that the photographer keep 100 yards from the Onassis apartment and 50 yards from the person of the defendant and her children. Surveillance was also prohibited.

Upon notice of consolidation of the preliminary injunction hearing and trial for permanent injunction, plaintiff moved for a jury trial-nine months after answer was served, and to remand to state court. The first motion was denied as untimely, the second on grounds of judicial economy. Just prior to trial Galella deposed Mrs. Onassis. Under protective orde