Baker v. Bindner, Civ. A. No. 5648.

• Court: U.S. District Court — Western District of Kentucky
• Citation: 274 F. Supp. 658
• Docket Number: Civ. A. No. 5648.
• Parties: Robert BAKER et al., Plaintiffs, v. William E. BINDNER, Chief of Police of the City of Louisville, Kentucky et al., Defendants.
• Decision Date: 13 October 1967

274 F. Supp. 658

Robert BAKER et al., Plaintiffs,
v.
William E. BINDNER, Chief of Police of the City of Louisville, Kentucky et al., Defendants.

Civ. A. No. 5648.

United States District Court W. D. Kentucky, Louisville Division.

October 13, 1967.

274 F. Supp. 659

Neville M. Tucker, Charles J. Lunderman, Jr., Danial T. Taylor, III, Louisville, Ky., Jack Greenberg, Melvyn Zarr, New York City, Morton Stavis, Dennis J. Roberts, Newark, N. J., William M. Kunstler, Arthur Kinoy, New York City, for plaintiffs.

Eugene H. Alvey, E. P. Sawyer, Robert Matthews, Atty. Gen., Commonwealth of Kentucky, Frankfort, Ky., J. Leonard Walker, Scott Miller, Jr., Ralph H. Logan, Louisville, Ky., for defendants.

Joseph B. Helm, James Hickey, Louisville, Ky., for Amicus Curiae—representing American Civil Liberties Union.

OPINION

JAMES F. GORDON, District Judge.

The plaintiffs, individually and by class representation, bring this action against the defendants, individually and as City of Louisville and Commonwealth of Kentucky officials, the thrust of the complaint and the complaint as amended being doubled edged in nature, i.e., for declaratory judgment relief as to the constitutionality of certain city ordinances, state statutes and a circuit court restraining order on the one hand, and injunctive relief against the enforcement of such against the plaintiffs and their class; enforcement allegedly designed and carried forth by defendants with the specific purpose and resultant effect of suppressing plaintiffs' peaceable protest against alleged racial discrimination in the sale and rental of housing in the city of Louisville, Kentucky.

Plaintiffs assert the jurisdiction of the Court arises under Title 28 U.S.C. §§ 1343(3), (4), 2201, 2202; Title 42 U.S. C. §§ 1981, 1982, 1983 and 1985; and the First and Fourteenth Amendments to the Constitution of the United States. Further, that this is a proper cause for determination by a 3-Judge court pursuant to 28 U.S.C. §§ 2281, 2284.

Without unduly burdening this opinion with a recitation of the day by day occurrences, suffice it to say, evidence developed at an extensive factual hearing before this Court discloses generally that, beginning in the early spring of 1967 and continuing for months thereafter, the plaintiffs initiated and participated in a series of walks or marches (sometimes called "demonstrations"), all in and about the city of Louisville, Kentucky, designed to bring to the attention of the community and the officials of the city the conditions which the plaintiffs deemed unacceptable to them, that is, alleged discrimination in the sale and rental of housing and subsequent failure in their efforts to secure passage of an open housing ordinance before the Board of Aldermen.

Soon following commencement of plaintiffs' activities, individuals and at least one other organization, dedicated to the maintenance of the status quo in the housing and rental picture, began to likewise assemble at the locations of the anticipated "demonstrations" of the plaintiffs, and to taunt and heckle the open housing advocates. These persons became known as the "hecklers".

Entered then the police, to stand as a buffer between these diverse groups in an effort to prevent actual confrontation, which was feared by the enforcement officers would result in public disturbance and disorder. Arrests resulted, made primarily from the plaintiffs'

274 F. Supp. 660

group, for the violation of the ordinances and statutes herein under attack and hereinafter dealt with. Further, as the fires of passion were fanned, these law enforcement officials (some of the defendants herein) obtained from The Honorable Marvin Sternberg, Judge of the Jefferson County Circuit Court (also a named defendant), a restraining order (here also under attack), the effect of which order was to enjoin the plaintiffs from their demonstration activities, except at designated times, and only after advance notice to the police of the place of assembly, and further limiting the number of plaintiffs in each "demonstrating" group, and requiring specification of the route of plaintiffs' anticipated march. Subsequently, by stipulation, Judge Sternberg's order was somewhat relaxed as to its restrictions

From all of the evidence heard this Court reaches the following factual conclusions. We do not find the activities of the plaintiffs and their class to be "hard core", and by like token we do not find the defendants to have been guilty of selective enforcement of the laws against these plaintiffs so as to frighten or coerce them. The proof establishes no pattern of selective arrest aimed at the plaintiffs as against all other persons. The enforcement activity in these circumstances does not appear to us to have been dedicated to a halting of the demonstrations, but rather to a separation of the adversaries and to the protection of all concerned, including the general public. In this connection for instance, the only time the tear gas was used by the police it was not used against the plaintiffs, but against the "hecklers" and the spectators who had assembled to taunt them. Further, we refer to the fact that only in one slight reference in the proof was there a breath of any evidence, and it of no substantial consequence, of discourtesy on the part of the police, and nothing was offered approaching a charge of police brutality or their use of unreasonable force. An examination of the instances of when arrests were made reflects to our satisfaction that such were, for the most part, made only when either dictated by reasonable protective necessity to forestall confrontation and then such were made from both groups of individuals in the controversy; or were made in those instances when the plaintiffs, in support of their belief of their nonviolent principle, invited arrest by the police; or were made only after reasonable police requests were refused.

Accordingly, we feel that the plaintiffs have failed by the proof to support their allegation that the police, faced with the choice between constitutional guarantees and actual control of the populus, they (the police) chose suppression of constitutional rights rather than other avenues of control. We find no unconstitutional use of an otherwise constitutional statute. Very frankly, we as a Court are at a loss to determine what the police could have done, or left undone, under the circumstances, with which plaintiffs would have found no fault.

Thus it is apparent that, in the judgment of this Court, the plaintiffs, in all fairness and practicality, have no legitimate complaint in this situation could we but find that all of the ordinances and statutes affecting freedom of expression in this ligitation were constitutional. This we are unable to do as we find certain of them vague and overbroad, and of possible sweeping application.

Though, as heretofore stated, we do not find the defendants herein to have so used the unconstitutional statutes and ordinances in a manner which might be termed deliberately to suppress the constitutional rights of the plaintiffs and their class; such statutes and ordinances, being readily susceptible of such use, should, in our opinion, be struck down as unconstitutional.

Any unconstitutional statute, attempting to regulate First Amendment rights, which has been invoked, or as here, in reasonable anticipation of future events will be invoked, against a member of society, does, in and of itself, result in a suppression of constitutional rights, i. e., "chilling effect". Accordingly,

274 F. Supp. 661

we find ourselves unable to invoke the abstention doctrine as urged upon us by the defendants, and therefore take jurisdiction of this case under the authority expressed in Dombrowski v. Pfister, 380 U.S. 479, 489, 85 S.Ct. 1116, 1122, 14 L.Ed.2d 22 (1965), wherein the Supreme Court said

"We hold the abstention doctrine is inappropriate for cases such as the present one where, unlike Douglas v. City of Jeannette, 319 U.S. 157, 63 S. Ct. 877, 87 L.Ed. 1324, statutes are justifiably attacked on their face as abridging free expression, or as applied for the purpose of discouraging protected activities."

We therefore grant these plaintiffs declaratory judgment relief as to the constitutionally defective ordinances and statutes hereinafter discussed. We take judicial notice of them and their content as they are set forth in the complaint (not being denied in the answer).

Turning first to Kentucky Revised Statute 432.020, which provides as follows:

432.020 Criminal Syndicalism.

Any person who commits, aids or counsels any crime, physical violence, destruction of property, intimidation, terrorism or other unlawful act or method to accomplish any political end or to bring about political revolution shall be confined in the penitentiary for not more than twenty-one years, or fined not more than ten thousand dollars, or both.

It can be seen from the foregoing that it would be a criminal offense for a person to "counsel" an unlawful method to accomplish a political end. In Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), the Supreme Court when confronted with a state statute prohibiting persons from "advising" about the doctrine of...