Barnett v. D'ARTOIS, Civ. A. No. 16890.
| Decision Date | 20 September 1971 |
| Docket Number | Civ. A. No. 16890. |
| Citation | 331 F. Supp. 1310 |
| Parties | C. Pim BARNETT et al. v. George D'ARTOIS, Commissioner of Public Safety of the City of Shreveport, et al. |
| Court | U.S. District Court — Western District of Louisiana |
George M. Strickler, Jr., Elie, Bronstein & Strickler, New Orleans, La., Henry C. Walker IV, Gerhardt & Walker, Shreveport, La., Debra Millenson, New Orleans, La., Lawyers Constitutional Defense Committee, C. William Gerhardt, Gerhardt & Walker, Shreveport, La., Stanley A. Halpin, Jr., New Orleans, La., for plaintiffs.
John Gallagher, Roland J. Achee, Ray A. Barlow, Shreveport, La., for defendants.
OPINION
Our jurisdiction in this action rests upon 28 U.S.C. § 1343(3). Plaintiffs, under Rule 23 F.R.Civ.P., bring this as a class action1 under the Civil Rights Act (42 U.S.C. § 1983) to temporarily restrain and preliminarily and permanently enjoin defendants from interfering with the peaceful use of public parks of Shreveport.
Additionally, declaratory relief (28 U.S.C. § 2201) is sought, holding that Ordinance No. 73 of the City of Shreveport is unconstitutional both on its face and as applied in violation of rights guaranteed by the First and Fourteenth Amendments to the United States Constitution.2
After two amendments to the complaint, permitted by Rule 15(a) and (b), F.R.Civ.P., the present posture of plaintiff's complaint further requests that defendant D'Artois be required to return all photographs and identifications of members of plaintiffs' class taken on June 2, 1971, at Columbia Park in Shreveport.
Alarmed by the ever increasing traffic in heroin, marijuana, and other dangerous drugs (LSD) in Shreveport, the Mayor (Honorable L. Calhoun Allen) and Commissioner of Public Safety (Honorable George D'Artois), together with narcotics officers and Louisiana Police undercover agents, met to discuss means of interdicting this criminal activity.
After several weeks spent with plaintiffs' group, Officers Fussell and Warrington participated in "making" approximately 30 drug cases: a case is made by actually purchasing illegal drugs from a pusher. Their assiduous efforts may have netted more of the people involved in Shreveport's illicit drug traffic, but information revealed that the confidences they painstakingly acquired soon were to be lost. Alerted that their agents' cover was in danger, police officials decided to request warrants and execute them at Columbia Park, a local City Park where the majority of cases of drug transfers had occurred. Thirty-eight warrants were prepared, some being for "John Does" and "Jane Does" because of difficulty in obtaining names without the undercover men creating suspicion.3
June 2, police officers converged on Columbia Park (a rather small recreation area) and sealed off avenues of escape.4 Sexton testified: (Tr. 249.) This planned raid, with warrants issued on probable cause, soon turned into a police round-up. The males were pat-frisked, everyone was photographed, and, then, detained in the pavilion for approximately two hours. Some motorists and pedestrians passing Columbia Park on Columbia Street were stopped and the long-hairs among them were directed to the pavilion where they were photographed and identification was requested. Tom Metcalf was typical of the group which was not in the Park originally. On his way to work, at the Sound City recording studio, long-haired Metcalf circled Columbia Park to see if any of his friends were there: (Tr. 93.)5
George D'Artois, Commissioner of Public Safety, and one of the undercover agents were present at all times during the detention of the young people in the Park and those brought from the street. The photographs and identifications of those people who were not prosecuted are locked in the files of the Division of Special Investigation of the Shreveport Police Department.
Sunday, June 6, was advertised by pamphlets distributed by the "hippie" community and an underground newspaper as a day on which a rally would be held in Betty Virginia Park to peacefully and silently protest the treatment received by the young people a few days before.6
Unaware of any restrictions on use of the City's parks, approximately 100 "hippies" congregated. Despite at first remaining in small groups and causing little concern to anyone, the City officials demanded that the group disperse only a short while after they had gathered at the Park. When so instructed by the Mayor and the Commissioner of Public Safety, the group first sat down, then left once Mrs. Elizabeth Clay promised to obtain a temporary restraining order which would enable them to "return the following Sunday to the Park without fear of being harrassed by the police." (Tr. 41.)
A temporary restraining order could not legally be obtained from this Court in time and the efforts of plaintiffs' attorney to get a permit from the Director of Parks and Recreation, Fred McGaha, were unproductive; he refused "because the request asked for a group meeting where political activities and political discussions would be made and the use of band instruments that would, in my opinion, upset the other people that were in the Park." The authority upon which this decision was made and to which the Mayor and Commissioner later adverted is Shreveport City Ordinance No. 73.7
Plaintiffs undaunted by lack of a permit, the unconventionally attired, long-haired group returned to Betty Virginia Park June 13; and, desiring to appear to be as innocuous as possible, at first kept to themselves in small groups and warned away drug abusers by printed "No Holding" placards.8 After two hours of frisbee-throwing and rapping in peaceful assembly, the police again on the instructions of Allen and D'Artois, noting that they were congregating in sizeable groups, and beginning to set up loud "rock band" instruments, ordered the group, along with a few family picnickers, to disband and vacate the Park. This evacuation was ordered after a short-lived fight drew a small crowd of spectators. Reliable intelligence information had been obtained that "outsiders" and arms were to be brought in. D'Artois' experience had convinced him that the situation was "explosive" and, after conferring with Allen, the order to leave was issued. We find these defendants, misled by their intelligence information, misgauged the effect of this flare-up; more importantly, the order also was bottomed on their thought that the rally was an illegal use of the Park. (Tr. 88.)
After Betty Virginia Park was cleared on the 13th, some of those present marched to Columbia Park where they were denied entrance and then proceeded to Gilbert Park which they found closed to them also. Assuming D'Artois' assessment of the events which transpired on June 13 was accurate and the situation indeed was explosive, this does not excuse closing the Park to the "hippies" on June 6. As noted, the June 13 order was based in large measure upon Ordinance 73.
The delicate interests involved and the pressing nature of the issues have convinced us that a decision should be rendered as soon as possible. There has been no time for either side to submit post-hearing briefs, and, because of this, we have undertaken an extensive in-depth review of the pertinent authorities.
We find plaintiffs' requests for restraining orders and injunctions have been rendered moot by the testimony of D'Artois and Allen:
Hippies have been permitted to return to the parks and will not be harassed in their use of them. We in no way hereby curtail the laudable efforts of police agents who, in enforcing constitutional laws, viz., narcotic laws, have arrested alleged drug pushers and abusers on reliable information of undercover agents or informants. These efforts when constitutionally carried out assist society in protecting itself and in protecting naive young people against themselves; but, when unconstitutionally done, is of no help to that worthy goal because prosecution may not be maintained and law enforcement receives a "black eye." We do not question for one moment the worthy motives of Shreveport's officials, and, indeed, urge them to press even harder to combat the drug menace, which has been growing, not only locally, but nation-wide, in recent years, almost by leaps and bounds.
At this point the case diverges into two distinct issues: the facial...
To continue reading
Request your trial
-
Sullivan v. Murphy
...24, 430 F.2d at 491 & n. 24. 69 See United States v. Edmons, 432 F.2d 577 (2d Cir., 1970) (per Friendly, J.) ; Barnett v. D'Artois, 331 F.Supp. 1310, 1318-1319 (W.D.La., 1971). Cf. Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 70 139 U.S.App.D.C. at 117-118, 430 F.2d at 490-491......
-
SIXTEENTH, ETC. v. City and County of Denver
...F.2d 1078 (1973) (voiding a Park Service regulation prohibiting the unlicensed sale of newspapers in park areas). In Barnett v. D'Artois, 331 F.Supp. 1310 (W.D.La.1971), a city ordinance absolutely prohibited any political speech or assembly in the city's park. In striking down that ordinan......
-
Baker v. State
...appellant was barefooted, had long hair, and was shabbily dressed does not constitute probable cause to arrest. See Barnett v. D'Artois, 331 F.Supp. 1310 (W.D.La.1971); Hughes v. Rizzo, 282 F.Supp. 881 (E.D.Pa.1968). Nor do the overall circumstances presented furnish the state with a valid ......