365 F.2d 17 (7th Cir. 1966), 15325, Herschel v. Dyra

Docket Nº:15325.
Citation:365 F.2d 17
Party Name:Austin HERSCHEL, Plaintiff-Appellant, v. Frank J. DYRA and Orlando W. Wilson, Defendants-Appellees.
Case Date:July 18, 1966
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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365 F.2d 17 (7th Cir. 1966)

Austin HERSCHEL, Plaintiff-Appellant,

v.

Frank J. DYRA and Orlando W. Wilson, Defendants-Appellees.

No. 15325.

United States Court of Appeals, Seventh Circuit.

July 18, 1966

John M. Bowlus, Chicago, Ill., for appellant.

Raymond F. Simon, Marvin E. Aspen, Corp. Counsel of City of Chicago, Chicago, Ill., for appellees, Sydney R. Drebin, Asst. Corp. Counsel, of counsel.

Before DUFFY, SCHNACKENBERG and KNOCH, Circuit Judges.

DUFFY, Circuit Judge.

This is an appeal from a District Court order granting defendants' motions to strike the plaintiff's complaint

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and to dismiss this cause of action upon the ground that the complaint failed to state a claim upon which relief could be granted.

On January 1, 1964, plaintiff-appellant was arrested by the defendant Patrick J. Dyra for allegedly violating a City of Chicago ordinance prohibiting the distribution of advertising matter of any kind in a public way or place.

Section 36-28, Municipal Code of Chicago, reads as follows:

'It shall be unlawful for any person to distribute advertising matter of any kind on any public way or public place of the city otherwise than from hand to hand, without tossing or throwing, or to distribute, hand out or scatter on any public way any handbills or dodgers of a size four and one-half inches by six inches or larger, or any other loose sheets of advertising matter which would litter the public ways if allowed to drop thereon; provided that such handbills, dodgers, or loose sheets, if enclosed in envelopes or folded or otherwise handed out in such manner as to avoid the likelihood of falling while being passed out, may be distributed from hand to hand if not tossed or thrown.'

The complaint alleges that on the day of plaintiff's arrest, defendant Dyra was an officer of the Chicago Police Department on traffic duty at the intersection of State and Superior Streets in Chicago. Having noticed plaintiff distributing some kind of printed material or papers, officer Dyra requested a copy from plaintiff, and after having examined it, told plaintiff that he thought its distribution was illegal. Plaintiff responded by saying that he considered his actions to be legal.

Approximately fifteen minutes after this conversation, plaintiff got into his automobile and started to leave the scene. His automobile was immediately curbed by three police cars, and plaintiff was placed under arrest without a warrant by defendant Dyra.

The complaint further alleges that the officers then took plaintiff to the Chicago Avenue police station where he was booked and formally charged with violation of the handbill anti-litter ordinance. The complaint also alleges plaintiff was denied the right to call an attorney until one hour and fifteen minutes from the time he was taken to the station. It seems to be agreed that after slightly more than an hour at the station, plaintiff was released upon posting a cash bond.

On January 13, 1964, the complaint against plaintiff under the anti-litter ordinance came on for hearing in the Municipal Department of the Circuit Court of Cook County. The cause was non-suited on the City of...

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