Barber v. Kinsella

• Decision Date: 24 November 1967
• Docket Number: Civ. No. 12184.
• Court: U.S. District Court — District of Connecticut
• Parties: John BARBER, George Foster-Bey, King L. Davis, Christine Rutherford, Johnie Smith, and Joseph D. Williams, Plaintiffs, and Ronald M. Weaver, Intervening Plaintiff. v. George B. KINSELLA, Mayor of Hartford, Elisha C. Freedman, City Manager of Hartford, John J. Kerrigan, Chief of Police of Hartford, Benjamin Goldstein, Captain of the Hartford Police, Daniel E. Lynch, Chief Prosecutor of the 14th Circuit Court, and John D. LaBelle, State's Attorney for Hartford County, Defendants.

277 F. Supp. 72

John BARBER, George Foster-Bey, King L. Davis, Christine Rutherford, Johnie Smith, and Joseph D. Williams, Plaintiffs and Ronald M. Weaver, Intervening Plaintiff. v. George B. KINSELLA, Mayor of Hartford, Elisha C. Freedman, City Manager of Hartford, John J. Kerrigan, Chief of Police of Hartford, Benjamin Goldstein, Captain of the Hartford Police, Daniel E. Lynch, Chief Prosecutor of the 14th Circuit Court, and John D. LaBelle, State's Attorney for Hartford County, Defendants.

Civ. No. 12184.

United States District Court D. Connecticut.

November 24, 1967.

George D. Stoughton, Asst. State's Atty., Hartford, Conn., for John D. LaBelle.

Mark Gassner, Hartford, Conn., Robert L. Carter, Lewis M. Steel, Richard F. Bellman, New York City, for plaintiffs and intervening plaintiff.

Howard H. Orenstein, Sydney, T. Schulman, Hartford, Conn., for George Foster-Bey.

Peter L. Costas, Hartford, Conn., for Connecticut Civil Liberties Union.

Richard M. Cosgrove, Leo C. Mazotas, Hartford, Conn., for George B. Kinsella, Elisha C. Freedman, John J. Kerrigan, and Benjamin Goldstein.

Francis M. McDonald, Waterbury, Conn. and John Rose, Jr., New Haven, Conn., for Daniel Lynch.

John D. LaBelle, State's Atty., Hartford, Conn., pro se.

Before SMITH, Circuit Judge, and BLUMENFELD and CLARIE, District Judges.

MEMORANDUM OF DECISION ON MOTION FOR TEMPORARY RESTRAINING ORDER

J. JOSEPH SMITH, Circuit Judge:

This is a civil action before a 28 U.S.C. § 2281 three-judge court in which the plaintiffs allege unconstitutionality and unconstitutionally discriminatory application of Sections 53-44¹ and 53-174² of the Conn. General Statutes, and Sections 32-4³ and 32-5⁴ of the Municipal Code of the City of Hartford, with a consequent "chilling" effect upon the exercise of First Amendment rights by the classes whom the plaintiffs represent — in general, Negro citizens of Hartford.

Plaintiffs are Negro citizens of Hartford, and most of them are active participants in or leaders of the Black Caucus, a "loosely structured civil rights organization in Hartford." They all sue on behalf of themselves, all members and supporters of the Black Caucus, and all Negro residents of Hartford similarly situated, classes too numerous to bring before the court. Plaintiff George Foster-Bey also sued on behalf of all members of the Hartford Branch of the NAACP. Foster-Bey has been permitted to withdraw as a party plaintiff and intervenor Ronald M. Weaver to intervene on behalf of the same class. The action is brought pursuant to Rule 23, Fed.Rules Civ. Proc.; plaintiffs say they will fairly and adequately protect the interest of each class which they represent.

The defendants are George B. Kinsella, Mayor of Hartford; Elisha C. Freedman, City Manager of Hartford; John J. Kerrigan, Chief of Police of Hartford; Benjamin Goldstein, Captain of the Hartford Police; Daniel E. Lynch, Chief Prosecutor for the 14th Circuit Court of Connecticut; and John D. LaBelle, State's Attorney for Hartford County. Each defendant is sued individually and in his official capacity; Kerrigan and Goldstein are also sued as representatives of the class of police officers of Hartford, a class too numerous to bring before the court.

Plaintiffs allege that defendants, under color of Connecticut statutes and Hartford ordinances, have entered into a plan of joint action to subject the plaintiffs to the deprivation of Constitutional rights, privileges and immunities; that pursuant to this plan the defendants have prosecuted and intend to continue prosecuting plaintiffs, etc. under the named statutes and ordinances; that defendants or some of them have attempted to institute prosecution of plaintiffs, etc. by alleging that they had violated the statutes and ordinances, or some of them, and that these acts were initiated by police officers under the control of defendants or some of them, and were without any basis in fact.

In this action, plaintiffs seek injunction against the enforcement of Sections 53-44 ("Inciting Injury to Persons or Property") and 53-174 ("Breach of the Peace. Intimidation. Libel") of the Connecticut General Statutes, and of Sections 32-4 and 32-5 of the Municipal Code of the City of Hartford, declaration of the invalidity of the sections as repugnant to the Constitution of the United States and related relief.

Intervenor Ronald M. Weaver moves for a temporary restraining order, enjoining defendants, the Hartford Mayor, City Manager, Chief of Police, Police Captain Goldstein, the chief prosecutor of the state 14th Circuit Court and the State's Attorney for Hartford County, from continuing to incarcerate him under the inciting to injury and breach of the peace sections of the statutes.

Assuming without deciding at this stage of the action that this court has jurisdiction under 42 U.S.C. § 1983 to enjoin the prosecution already begun of Weaver in the state courts in spite of the prohibition of 28 U.S.C. § 2283 against federal injunctions of state court proceedings,⁵ we hold that Sections 53-44 and 53-174 of the Conn.Gen.Stats. are not unconstitutional on their face, and that they have not been shown to have been unconstitutionally discriminatorily applied in Weaver's case.

Weaver was arrested on September 19, 1967 for violation of Sections 53-44 and 53-174 of the Connecticut General Statutes. Bail was set at $25,000, later reduced to $2,000 in the 14th Circuit Court. He is held pending trial in default of bail.

Following complaints against the Hartford police for conduct alleged to discriminate against Negro citizens, a protest march of about 100 people was organized on September 18, 1967 by a group known as the Black Caucus, including most of the plaintiffs, to march from the Negro section in the North End of Hartford to a white section in the South End, ostensibly to protest housing discrimination. A group of 300 or 350 whites gathered in the South End on a sidewalk along the proposed line of march. This group was reported to be armed, although the police did not observe any arms in their possession.

Police accompanied the marching group. In the course of the march, although Barber attempted to form the marchers in two orderly lines, bottles and stones were thrown, striking two of the officers and one civilian seated in a car. A line of officers attempted to halt the marchers, and Barber was arrested for breach of the peace for attempting to lead the marchers through the police line. He was placed under bond of $25,000, which was reduced in Circuit Court to $2,000 without surety and he was released September 21 on his own recognizance pending trial.

The following evening, September 19, 1967, stores were being broken into and looting taking place in the North End of Hartford. A number of police were in the area. At about 9 o'clock, near the corner of Wooster and Canton Streets in the North End, a small crowd gathered and were addressed by plaintiffs Weaver and Foster-Bey, who advised the crowd that they had a right to be there, that the police could do nothing about it, but must give them protection. Weaver called on the crowd to follow him. During the speeches bricks, bottles and stones were thrown at police officers, one of whom was struck on the head by a brick. The officers took shelter behind their cruisers, then dispersed under the attack and retreated to Main and Canton Streets, a block from Wooster and Canton.

Weaver and Foster-Bey led the crowd up Canton, beckoning them on. Missiles were being thrown from the group. Weaver and Foster-Bey proceeded to Main and Canton, the crowd stopping some 15 or 20 feet behind them. Weaver and Foster-Bey were arrested for inciting to riot and breach of peace. Bond was set for Foster-Bey at $25,000, reduced by the Circuit Court to $5,000, and he was released two days after arrest on his own recognizance in the amount of $2,000. The inciting to riot charge against Foster-Bey was nolled.

In the opinion of some of those active in the Black Caucus and the NAACP, the arrests have discouraged support for the organizations and participation in demonstrations. However, the proof at the hearing on the motion does not indicate that there was any substantial discouragement, either up to the time of the arrests or thereafter. Demonstrations have continued, with no further arrests, and have received police protection, including open housing demonstration marches, one to the South End.

Intervening plaintiff Weaver is the only plaintiff who was not released without cash bail. His police record, considered by the Circuit Court in requiring bail, shows a number of arrests and convictions, and two rearrests for failure to appear while on bail.

It is Weaver's contention that the statutes invoked against him are unconstitutional on their face, that the application of them to him is discriminatory and that the application of the statutes and ordinances (also claimed to be unconstitutional on their face) has been in a manner to chill the First Amendment rights of Weaver and others to free speech. See Dombrowski v. Pfister, supra, n. 5.

The first claim we must reject. Section 53-44 has recently been upheld as constitutional by this court in Turner v. LaBelle, 251 F.Supp. 443 (D.Conn. 1966) and Section 53-174 in an earlier case, Watch Tower Bible and Tract Society v. City of Bristol, 24 F.Supp. 57 (D.Conn.), affirmed per curiam 305 U.S. 572, 59 S.Ct. 246, 83 L.Ed. 361 (1938).

Weaver urges a reconsideration of the question, and claims support in the opinions in three recent three-judge District Court civil rights cases: Ware v. Nichols, 266 F.Supp. 564 (N.D.Miss.1967); Carmichael v. Allen, 267 F.Supp. 985 (N.D. Ga.1967); and Baker v. Bindner, 274 F.Supp. 658 (W.D.Ky. Oct. 13, 1967).

The plaintiffs in Ware v. Nichols were Negro citizens of Mississippi, who had been arrested and charged with violating the Mississippi Criminal Syndicalism Act; they asked for and received a summary judgment declaring the Act...