Yaffe v. Powers, No. 71-1269.

• Citation: 454 F.2d 1362
• Decision Date: 26 January 1972
• Docket Number: No. 71-1269.
• Parties: Erna YAFFE and James Hornsby, Plaintiffs-Appellants, v. James E. POWERS, as Chief of Police of the Fall River Police Department and Ronald Andrade, as a Police Officer in the Fall River Police Department, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

454 F.2d 1362 (1972)

Erna YAFFE and James Hornsby, Plaintiffs-Appellants, v. James E. POWERS, as Chief of Police of the Fall River Police Department and Ronald Andrade, as a Police Officer in the Fall River Police Department, Defendants-Appellees.

No. 71-1269.

United States Court of Appeals, First Circuit.

Heard December 8, 1971.

Decided January 26, 1972.

Matthew H. Feinberg, Boston, Mass., with whom John Reinstein, Cambridge, Mass., Ronald F. Kehoe, C. Michael Malm, and Hausserman, Davison & Shattuck, Boston, Mass., were on brief, for appellants.

James P. McGuire, Fall River, Mass., with whom McGuire & Collias, Fall River, Mass., was on brief, for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

On May 5, 1970, some two hundred citizens attended a memorial service, commencing at the campus of Bristol Community College and terminating at the post office in Fall River, Massachusetts, to protest United States military action in Cambodia and Ohio National Guard action at Kent State University. Prior to this gathering, Fall River authorities had been concerned over the activities of a "Regional Action Group" which they feared to be organizing a violent demonstration along with activists who had taken part in recent riots in other Massachusetts cities. In order to keep track of "the extent of infiltration and participation by known violent activists of the Regional Action Group into the conduct of the . . . memorial services", the Fall River police department sent a police photographer, not in uniform, to take pictures of the activities at the campus and post office.

Plaintiff Yaffe, invited by the sponsors to speak as a substitute for her husband who was then running for Congress, and plaintiff Hornsby, a clergyman and member of the Fall River school committee, were among those present who were included in one or more photographs taken. One or more photographs of Hornsby was purportedly displayed in a public area of the Fall River police station for several weeks. A police photograph of a speaker, an alleged member of the Regional Action Group, at the memorial service, and three onlookers, including plaintiff Yaffe, was allegedly given to the Providence Journal and published in connection with a story on "Fall River Radicals", based on defendant Andrade's testimony before the Senate Subcommittee on Internal Security. The testimony related to surveillance of the Regional Action Group prior to a planned march on May 1, 1970—which was called off at the last minute.

The plaintiffs brought suit against the Fall River police chief and Sergeant Andrade, alleging that surreptitious police photography, surveillance, the keeping of notes, and the maintaining and circulating of photographs and dossiers on participants at meetings such as that held on May 5, 1970, harass the plaintiffs and deter others from participating in public meetings held to express unconventional views. Plaintiffs seek a declaratory judgment that such surveillance, photographing, maintaining files, and circulating the contents thereof have violated their constitutional rights, and an injunction restraining defendants from taking such actions except "where such actions are necessary for the apprehension of persons who will be charged with specifically defined crimes."

The present appeal follows plaintiffs' unsuccessful attempt before the district court to represent as a class "all other individuals who wish to . . . engage, in the City of Fall River, in peaceful political discussion . . . without surveillance and photographing by defendants . . . without becoming the subject of dossiers, reports and files maintained by the defendants, and without any publication by defendants to other persons of the contents of any such dossiers . . . ." Plaintiffs, so conceiving their class, immediately sought to initiate extremely broad discovery, encompassing not only any police department file item relating to them as individuals and all notes relating to the May 5, 1970, meeting, but all files, memoranda, notes, etc. "relating in any manner to political protests, demonstrations, rallies or meetings and other so-called `subversive activities' carried on in the Fall River area during 1969 and 1970 . . . excepting therefrom matter relating directly to the prosecution of any person who has been charged with a crime, which charge has resulted in a criminal conviction or is still pending." Both the determination of the class and the scope of the discovery order were the subject of a memorandum and order, prepared by the magistrate and approved by the district court. The court found that the requirements of Rule 23, F.R.Civ.P., had not been fulfilled and ordered discovery accordingly limited to matters directly relating to the named plaintiffs.

We have asked for and received briefing on the issue of the appealability of a district court's refusal to recognize a class. Plaintiffs concede that the order was not "final" within the meaning of 28 U.S.C. § 1291 and that there was no certification by the court under 28 U.S.C. § 1292(b), but assert that the district court's action is nonetheless appealable under 28 U.S.C. § 1292(a) (1) as an order "granting, continuing, modifying, refusing or dissolving injunctions . . . ." Although the district court did not specifically act with reference to the injunctive relief claimed in the complaint, the substantial effect of its order denying leave to proceed as a class is to narrow considerably the scope of any possible injunctive relief in the event plaintiffs ultimately prevail on the merits. Even if defendants are prohibited from recording, collecting and disseminating information on the named plaintiffs, as well as on others who may be persuaded to intervene, the assumed chilling effect of the continued surveillance of non-parties would reduce the class of persons willing to engage in public exchange of views on controversial subjects to those named in the complaint. Had the district court declined to determine a class provisionally, reserving final decision until more facts were presented, see Rule 23(c) (1), the case would be in a different posture insofar as appealability is concerned. As it is, we hold the district court's order appealable as a denial of the broad injunctive relief sought and proceed to a review of the order on its merits. Brunson v. Board of Trustees, 311 F.2d 107 (4th Cir. 1962), cert. denied, 373 U. S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690 (1963). Cf. Spangler v. United States, 415 F.2d 1242, 1246-1247 (9th Cir. 1969); Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 825-826 (2d Cir.), cert. denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). See also Note, Interlocutory Appeal from Orders Striking Class Action Allegations, 70 Col.L.Rev. 1292 (1970).

In passing on plaintiffs' application for certification of a class, the district court assumed that "all of the requirements of Rule 23 of the Federal Rules of Civil Procedure must be met before an action can be classified as a class action." From this erroneous premise, the court then proceeded to identify three requirements which it felt had not been sufficiently satisfied. First, the court stated that the class which plaintiffs hoped to represent had not been adequately defined. In reaching this conclusion the court compared the class allegation in the complaint, where the relevant class was defined as those "who wish . . . to engage, in the City of Fall River" in various forms of public protest, with that in plaintiffs' supporting memorandum of law, where the putative class we defined as those persons "in the Fall River community who have been similarly subject to police surveillance . . . ." This variance, according to the court, left the class inadequately defined since "it is not uncommon" for "the majority of the people attending rallies, indeed if not all" to come from outside the host community. Second, the court felt that as to such an amorphous group of persons there was no assurance of predominating questions of law or fact. The court took judicial notice that "professional demonstrators", variously described as "persons who engage in the business of promoting demonstrations or who attend demonstrations for the sake of creating disturbances", often attend mass rallies and as to those persons there would be different questions of fact and different defenses available to the police. Finally, and as a consequence of the two difficulties noted above, the court doubted that a class action was superior to other available methods for the fair and efficient adjudication of the controversy.

It is quite understandable that courts, when called on as here to order wide-open discovery in the name of recently refurbished class actions in the relatively new civil rights field, might well take a jaundiced look at the nature and scope...