Blyden v. Hogan, No. 70 Civ. 4878.

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Citation: 320 F. Supp. 513
• Decision Date: 30 November 1970
• Parties: Herbert X. BLYDEN, Jack X. Collins, Herbert Scott X. Deane, Stanley X. King, Plaintiffs, v. Frank HOGAN, individually and as District Attorney of New York County, George McGrath, individually and as New York City Commissioner of Corrections, Milton Batterman, individually and as Warden of the Manhattan House of Detention for Men, Defendants.
• Docket Number: No. 70 Civ. 4878.

320 F. Supp. 513

Herbert X. BLYDEN, Jack X. Collins, Herbert Scott X. Deane, Stanley X. King, Plaintiffs,
v.
Frank HOGAN, individually and as District Attorney of New York County, George McGrath, individually and as New York City Commissioner of Corrections, Milton Batterman, individually and as Warden of the Manhattan House of Detention for Men, Defendants.

No. 70 Civ. 4878.

United States District Court, S. D. New York.

November 30, 1970.

320 F. Supp. 514

Paul G. Chevigny, New York Civil Liberties Union, New York City, for plaintiffs.

Frank S. Hogan, Dist. Atty. of New York County, New York City, for defendant Hogan; Herman Kaufman, New York City, of counsel.

J. Lee Rankin, Corporation Counsel, New York City, for defendants McGrath and Batterman; James Nespole, New York City, of counsel.

LASKER, District Judge.

As an aftermath of the recent riots by prisoners (involving the taking of hostages and destruction of property) at the Manhattan House of Detention and other New York City jails, investigations are being made to determine criminal responsibility. In the course of the investigation by the District Attorney of New York County, his office has requested prisoners, without the presence of their counsel and without prior advice of their right to counsel (the Miranda warnings) to sign a waiver in the following form:

DISTRICT ATTORNEY'S OFFICE

COUNTY OF NEW YORK

Date______

I hereby consent to be taken to the District Attorney's Office, New York County, to be interviewed whenever the District Attorney may deem it necessary, with or without the presence of my attorney.

__________________

Plaintiffs are prisoners at the Manhattan House of Detention, and apparently were inmates at the time of the riots. They bring this civil rights class action under Title 42 U.S.C.A. §§ 1983, 1985, and their jurisdictional correlatives, 28 U.S.C.A. §§ 1343, 2201, for a declaratory judgment that the use of the above waiver is an infringement of their constitutional

320 F. Supp. 515

rights and those of the class they claim to represent (all prisoners at the House of Detention). They move now for a preliminary injunction restraining the use of the waiver form. Although the request for relief is thus broadly stated, it appears from the papers and the statements of plaintiffs' counsel on argument that the more precise relief actually sought is that no prisoner should be asked to sign the waiver except in the presence and with the advice of counsel

It is alleged that the form of waiver has been submitted to "some of the plaintiffs and to other prisoners" for signature, that the forms are signed in the Warden's office, that "it is expected that all plaintiffs, and others in plaintiffs' class, will be given such forms to sign," that plaintiffs and some or all members of plaintiffs' class are "necessarily" targets of the investigation, and that indictments have been presented against prisoners in other jails under defendant McGrath's jurisdiction in Queens and Kings Counties for kidnapping and riot, respectively.

It is claimed that the course of action pursued deprives plaintiffs of their right to counsel under the Sixth Amendment, and of due process and equal protection under the Fourteenth Amendment, because, in contrast to the case of prisoners, persons not in jail whom the District Attorney seeks to question can freely seek counsel and are generally interviewed with counsel present, and that it constitutes a "pattern, practice and policy" of the defendants to deprive plaintiffs of these rights.

As the caption indicates, the action is brought against the District Attorney of New York County, the New York City Commissioner of Corrections, and the Warden of the Manhattan House of Detention for Men.

Defendants contend that the court lacks jurisdiction because the complaint alleges no justiciable controversy, that it states no federal claim "which necessitates this Court to exercise its jurisdiction," and that the proceeding cannot be denominated a class action under Rule 23, F.R.Civ.P.

Facts not in dispute establish that two of the plaintiffs, Deane and Collins, have been asked to sign the waiver. Deane did so; Collins refused and accordingly was not questioned. By order of Justice Postel of the New York Supreme Court (who had no knowledge of the circumstances under which the waiver was signed), Deane and two other inmates who had executed waivers were then taken to the District Attorney's office for questioning in connection with the investigation of the prison riots. At the District Attorney's office, but not before, these inmates were given Miranda warnings. Deane, when questioned, asked to consult his attorney and was sent back to Detention without further questioning. Neither plaintiffs Blyden nor King has been asked to sign a waiver or has been questioned, although Blyden claims that since he, Deane and Collins "have been incarcerated together and are all members of the inmate committee, I have reason to believe that I will be called if the other two named above are called."

JUSTICIABILITY, EXERCISE OF JURISDICTION AND PROPRIETY OF CLASS ACTION

Defendants raise a congerie of related questions as to justiciability, the "necessity" for the court's exercising its jurisdiction, and the propriety here of a class action.

Relying on such cases as Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L. E.2d 989 (1961), and Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943), defendants claim that the issues sought to be raised in this proceeding are not justiciable within the meaning of Article III of the Constitution. But this reliance is misplaced. In Poe, plaintiffs, married women, sued to declare unconstitutional Connecticut laws which they alleged prevented them from securing medical advice as to contraception. Finding that the statute had not been enforced for generations, that no

320 F. Supp. 516

prosecutions were threatened, indeed that there was a clear state policy against prosecution under the statute, and that therefore no imminent harm faced the plaintiffs, the Court declined to issue a declaration as to the statute and dismissed the appeal. As the opinion remarked

"This Court cannot be umpire to debates concerning harmless, empty shadows." Poe v. Ullman, supra, 367 U.S. at 508, 81 S.Ct. at 1758.

Here, however, the request to inmates to sign a waiver of right to counsel and to submit to interrogation by the District Attorney as to a crime certainly committed by one or more members of the proposed class is no "harmless, empty shadow." Furthermore, where "enforcement" is threatened, the Poe Court indicated that its holding did not apply:

"It is clear that the mere existence of a state penal statute would constitute insufficient grounds to support a federal court's adjudication of its constitutionality in proceedings brought against the State's prosecuting officials if real threat of enforcement is wanting." (Emphasis added.) Poe, supra, at 507, 81 S.Ct. at 1758.

As to Tileston, it need only be said that there the Court merely held that a doctor wishing to advise as to contraceptive measures (as distinct from patients seeking that advice) had no standing to attack the same Connecticut statute prohibiting use of contraceptive devices. Clearly, here, if the analogy applies at all, the inmates stand in the shoes of the patients rather than the doctor.

The analysis of Poe and Tileston applies also to the defendants' contention that the cases of Collins and Deane are moot because one refused to sign the proffered waiver and the other requested advice of counsel and was excused. In Poe, the Court analogizes the concepts of "`standing,' `ripeness,' and `mootness'" and states that the determination as to whether a federal court should act to declare unconstitutional a state statute (here a practice) where such matters are asserted depends on whether the issue is raised "at the instance of one who is himself admittedly harmed, or immediately threatened with harm, by the challenged action." The plaintiffs here fall within the category defined, even though some of them have either declined to sign the waiver or been excused after doing so because, as the District Attorney's counsel made clear at the argument on the motion, the...