Herschel v. Dyra

Decision Date05 December 1966
Docket NumberNo. 15325.,15325.
Citation365 F.2d 17
PartiesAustin HERSCHEL, Plaintiff-Appellant, v. Frank J. DYRA and Orlando W. Wilson, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

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.

Certiorari Denied December 5, 1966. See 87 S.Ct. 513.

DUFFY, Circuit Judge.

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

The material which plaintiff had been distributing just prior to his arrest consisted of copies of an allegedly unanswered letter which he had written the Cardinal Archbishop of Chicago. The letter was critical of the stand of the Cardinal and other members of the Catholic Clergy on certain public issues. Among other things, plaintiff referred to the Legion of Decency pledge in the Catholic Church, and urged a racial brotherhood or non-discrimination pledge under the same circumstances.

According to the reproduction in the appendix, the letter which plaintiff was passing out was quite lengthy, containing approximately one thousand words. It was not claimed that material distributed by plaintiff came within the exceptions stated in the ordinance as to material folded or enclosed in envelopes.

In Count 1 of the complaint herein, plaintiff seeks $125,000 in damages from defendant Dyra. He claims to be entitled to damages because he was deprived of rights, privileges and immunities secured by the Constitution of the United States, and particularly the First, Sixth and Fourteenth Amendments thereof. He asserts Dyra was acting under color of state law. Jurisdiction is claimed under Title 42 U.S.Code, § 1983 and 28 U.S.Code § 1343(3) and (4).

In Count II, plaintiff requests the Court to order Orlando W. Wilson, Superintendent of the Chicago Police Department, to expunge all records in control of the Department pertaining to plaintiff's January 1, 1964 arrest. Plaintiff seeks further an order from the Court declaring that plaintiff's arrest was void ab initio.

As to Count I, defendant Dyra argues that even assuming plaintiff did not violate the handbill anti-litter ordinance in handing out copies of his letter, and that his arrest was therefore erroneous, the bare allegation of a single false arrest is, in itself, an insufficient basis to show a violation of 42 U.S.C. § 1983.1

Although it is pointed out that plaintiff's complaint does not allege that Dyra acted with malice, spite, vindictiveness or with an intent to deprive plaintiff of any civil right, it is clear that plaintiff's complaint does allege more than a simple innocent false arrest.

Plaintiff charges that the police officers, including defendant Dyra, were acting under color of state law at the time of his arrest; that the distribution of his letter was a right secured to him under the First Amendment to the United States Constitution; that prior to arrest, the letter was shown to defendant Dyra and to the other officers; that there were in effect at the time of arrest, opinions of the corporation counsel of the City of Chicago informing the Chicago police that the anti-litter handbill ordinance did not cover pamphlets expressing purely political, social, religious or economic views; that plaintiff was denied, for a time, the right to call an attorney and that he was forced to make a court appearance after his arrest. The plaintiff then alleges a variety of damages which he claims to have suffered.

In Smith v. Cremins, 9 Cir., 308 F.2d 187, 98 A.L.R.2d 1154 (1962), the complaint charged that plaintiff had gone to the Los Angeles airport to distribute a religious tract, and while on a public sidewalk he was seized by police officers who took the tracts from him, destroying some and keeping others. Plaintiff was detained for only ten minutes. He was not arrested and no charges were filed against him. In reversing a dismissal of the complaint, the Ninth Circuit stated:

"Since it is not disputed that appellees acted `under color of State law,\' the municipal ordinances and code section upon which appellees rely are irrelevant. If appellees\' conduct deprived appellant of federal constitutional rights, it would be no defense
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  • Thom v. New York Stock Exchange, 69 Civ. 4092
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 18, 1969
    ...333 U.S. 834, 68 S.Ct. 609, 92 L.Ed. 1118, rehearing denied, 333 U.S. 858, 68 S.Ct. 732, 92 L.Ed. 1138 (1948); cf. Herschel v. Dyra, 365 F.2d 17 (7th Cir.), cert. denied sub nom. Herschel v. Wilson, 385 U.S. 973, 87 S.Ct. 513, 17 L.Ed. 2d 436 (1966). Campbell v. Adams, 206 Misc. 673, 133 N.......
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    ...order. 43 See Annot., 83 A.L.R. 127 (1933); 21 AM.JUR.2d Criminal Law § 369 (1965); 6 C.J.S. Arrest § 17c(2) (1937). 44 See Herschel v. Dyra, 7 Cir., 365 F.2d 17, cert. denied, 385 U.S. 973, 87 S.Ct. 513, 17 L.Ed.2d 436 (1966); Kolb v. O'Connor, 14 Ill.App.2d 81, 142 N.E.2d 818 45 See Unite......
  • Johnson v. Quander, Civ.A. 04-448(RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 21, 2005
    ...of all persons arrested, and the execution of that policy does not violate [a] plaintiff's right to privacy." Herschel v. Dyra, 365 F.2d 17, 20 (7th Cir.1966); see also United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir.1977) ("Retaining and preserving arrest records [including fingerpri......
  • Doe v. Webster, 77-2011
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 17, 1979
    ...(1957), and even absent a specific statute, such procedures are usually held to be within the authority of the police. Herschel v. Dyra, 365 F.2d 17, 20 (7th Cir.) cert. denied, 385 U.S. 973, 87 S.Ct. 513, 17 L.Ed.2d 436 (1966); Note, Retention and Dissemination of Arrest Records: Judicial ......
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