The U.S. Court of Appeals here yesterday ruled that $100 each in damages was too little to compensate 27 Quakers who were illegally arrested on the sidewalk in front of the White House in April, 1971.
The ruling was the third time in a week that a federal court here has wrestled with the unusual concept of the amount of damages that should be awarded to persons whose constitutional rights have been violated.
Last week, the appeals court ruled that $7,500 was too much to pay to each of 1,200 demonstrators illegally arrested at the U.S. Capitol in 1971.
A U.S. District Court judge ruled last week that three former top government officials - including former President Richard M. Nixon - should pay only $1 each of five members of a family whose telephone was illegally wiretapped under their orders.
Yesterday's ruling involved a prayer vigil held by the Quakers "to hold Richard Nixon in the light" in the hope that the government's war policies in Vietnam would be changed. Although the demonstrators had a permit, they were arrested approximately 2 1/2 hours after the demonstration started.
U.S. District Judge Oliver Gasch ruled that the arrests were illegal, and ordered the government to pay $2,765 in damages to the 27 persons who filed the suit. The extra $64 was awarded to one demonstrator who filed a claim for lost wages.
In ordering a new hearing on the issue of damages, U.S. Circuit Judge Harold Leventhal said compensation for denial of First Amendment rights "should not be extravagant," but "should not be approached in a niggardly spirit."
Gasch had awarded only "limited damages" to the Quakers because one of their stated purposes for the demonstration was to attract publicity.
In his original ruling, Gasch said he was "unable to find that plaintiffs were greatly aggrieved because the light of publicity which they were seeking to have shine on their demonstration shone more brightly than they had anticipated."
Judge Leventhal, writing for a unanimous three-judge court, said Gasch's decision was wrong for numerous reasons.
"First, and perhaps foremost, is the conception that the recovery should be 'limited' because the plaintiffs were participating in a demonstration," Leventhal said. "It is one thing to court publicity for a group vigil or meeting, an entirely propper exercise of First Amendment rights. It is quite another to be subject in addition to publicity of an individual arrest."
Leventhal also said Gasch was wrong when he ruled that minimal damages were necessary since many of those arrested decided to stay in jail rather than post collateral.
"Their stoicism in being willing to suffer more after does not mean that they suffered less previously," Leventhal said.
Pointing out that the plaintiffs were strip-searched and held in crowded conditions after their arrests, Leventhal said the issue of damages "calls for more sensitive treatment" by the lower court.
In a separate opinion, U.S. Circuit Judge Malcolm R. Wilkey said the appeals court ruling appears to set a figure of between $100 and $10,000 as the appropriate price to pay for the loss of First Amendment rights. Wilkey said he reached that conclusion since the court had found that $100 was not enough and since the plaintiffs themselves had claimed only $10,000.
Although agreeing with Leventhal's result, Wilkey said the demonstration should have foreseen the fact they might be arrested since "police will make human errors."
Wilkey also suggested that since the demonstration was a collective effort, the judge should decide on a flat sum to pay the group as a whole.
"Looking at the wrong done as a collective wrong, the total amount should be sufficiently sizable to discourage repetition of such illegal police action in the future, without being of such horrendous size as to shock the public - taxpaying - conscience" Wilkey added.