Cassidy v. Ceci

• Decision Date: 02 December 1970
• Docket Number: No. 70-C-139.,70-C-139.
• Citation: 320 F. Supp. 223
• Parties: Kevin CASSIDY, Arthur Patrick Doyle, Jeffrey Riordan Hinich, Michael Francis McDermott, Gilbert R. Arroya, individually and on behalf of all others similarly situated, Plaintiffs, v. Honorable Louis J. CECI, individually and as County Judge, Branch 3, Milwaukee County, Wisconsin, E. Michael McCann, individually and as District Attorney, Milwaukee County, Wisconsin, Harold A. Breier, individually and as Chief of Police, City of Milwaukee, Wisconsin, their Agents, Assistants, Successors, Employees, Attorneys, and all those acting in Concert or Cooperation with them or at their Direction or under their Control, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

320 F. Supp. 223

Kevin CASSIDY, Arthur Patrick Doyle, Jeffrey Riordan Hinich, Michael Francis McDermott, Gilbert R. Arroya, individually and on behalf of all others similarly situated, Plaintiffs, v. Honorable Louis J. CECI, individually and as County Judge, Branch 3, Milwaukee County, Wisconsin, E. Michael McCann, individually and as District Attorney, Milwaukee County, Wisconsin, Harold A. Breier, individually and as Chief of Police, City of Milwaukee, Wisconsin, their Agents, Assistants, Successors, Employees, Attorneys, and all those acting in Concert or Cooperation with them or at their Direction or under their Control, Defendants.

No. 70-C-139.

United States District Court, E. D. Wisconsin.

December 2, 1970.

Patricia D. McMahon, Michael J. Zimmer, William M. Coffey, Sander N. Karp, D. Winthrop Hass, Attys., Wis. Civil Liberties Union, Milwaukee, Wis., for plaintiffs.

Robert W. Warren, Atty. Gen., by Jeffrey B. Bartell, Asst. Atty. Gen., Madison, Wis., for Honorable Louis J. Ceci.

John J. Fleming, City Atty., by Patrick Madden and Thomas Hayes, Asst. City Attys., Milwaukee, Wis., for Harold A. Breier.

Michael D. Guolee, Asst. Dist. Atty., Milwaukee, Wis., for E. Michael McCann, Dist. Atty.

Before FAIRCHILD, Circuit Judge, REYNOLDS and GORDON, District Judges.

MYRON L. GORDON, District Judge.

This is an action for declaratory and injunctive relief in which the plaintiffs challenge the constitutionality of § 947.06, Wis.Stats. At a pretrial conference held on May 1, 1970, the parties agreed that this three-judge court should resolve the issue of the statute's facial invalidity. Briefs were submitted and oral arguments of counsel were heard on October 29, 1970. The defendant Breier moved to dismiss the complaint, but that motion was withdrawn at the aforesaid pretrial conference. Another defendant, Judge Ceci, has asked for dismissal principally on the ground that he is protected by judicial immunity, and we have determined that his motion must be denied. By an order of this court dated August 9, 1970, the state of Wisconsin was granted permission to intervene as a party defendant upon its application.

Although the defendants have urged that we abstain from entertaining this action, we hold that this question was resolved against abstention in Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967).

The complaint avers that the plaintiffs and other persons, numbering in all approximately 200, marched in an orderly and peaceful manner along a public sidewalk in Milwaukee after having participated in a peaceful assembly at the Milwaukee War Memorial. It is alleged that the marchers were prevented from continuing their orderly march by a "cordon" of about 15 Milwaukee police officers. It is also charged in the complaint that at approximately 5:00 P.M. on February 20, 1970, the marchers were arrested on various charges, including that of "unlawful assembly". The plaintiffs in the instant case were subsequently charged with a violation of § 947.06 which provides as follows:

"Section 947.06 Unlawful assemblies and their suppression. (1) Sheriffs, their under-sheriffs and deputies, constables, marshals and policemen have a duty to suppress unlawful assemblies within their jurisdiction. For that reason they may order all persons who are part of an assembly to disperse. An `unlawful assembly' is an assembly which consists of 3 or more persons and which causes such a disturbance of public order that it is reasonable to believe that the assembly will cause injury to persons or damage to property unless it is immediately dispersed.

"(2) An `unlawful assembly' includes an assembly of persons who assemble for the purpose of blocking or obstructing the lawful use by any other person, or persons of any private or public thoroughfares, property or of any positions of access or exit to or from any private or public building, or dwelling place, or any portion thereof and which assembly does in fact so block or obstruct the lawful use by any other person, or persons of any such private or public thoroughfares, property or any position of access or exit to or from any private or public building, or dwelling place, or any portion thereof.

"(3) Whoever intentionally fails or refuses to withdraw from an unlawful assembly which he knows has been ordered to disperse shall be guilty of a misdemeanor and may be fined not more than $500 or imprisoned not more than one year in the county jail or both."

We are asked to decide whether the statute in question is facially vague, uncertain and overbroad. The plaintiffs contend that the statute, on its face, is susceptible to improper and overbroad invasions of constitutionally protected first amendment rights.

In support of their claim that the statute is overbroad, the plaintiffs point to a number of cases where protected rights were found to be violated by state action. Our examination of the challenged statute persuades us that it does not fall within the proscription of such decisions as Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969); Wright v. Georgia, 373 U.S. 284, 83 S. Ct. 1240, 10 L.Ed.2d 349 (1963); or Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949).

The statute, in our view, is not vague or indefinite, but fairly apprises those required to comply with it what it "commands or forbids". Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939).

The plaintiffs also complain that the statute grants police officers too wide a discretion in deciding whether to make an arrest. We find that the enactment with reasonable clarity delimits the officers' discretion in that it authorizes an arrest only where "it is reasonable to believe" that the disturbance will cause injury. This is akin to the "probable cause" standard which generally applies in warrantless arrests. This distinguishes the case at bar from the situation before the court in Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965) and Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965).

The plaintiffs maintain that insofar as the statute does not specify the extent of the injury which can trigger an arrest, it permits an arrest to be made where the amount of damage is insignificant. While it is true that the language of the law itself does not spell out any required degree of injury or damage, this does not invalidate the act. If an arrest were bottomed upon a trivial amount of damage, a successful prosecution could not be had under the statute; however, it does not follow that the statute is unconstitutional in failing to be definitive in this regard. A statute which is otherwise valid upon its face is not rendered invalid by the mere fact that it is possible for an inept constable to misuse it; we would then have an improper application, not an unconstitutional statute. Thus, as we read this statute, it does not authorize "selective" or unlawful enforcement, and should the latter occur, it is not the fault of the statute itself. Cf. Bachellar v. Maryland, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970).

The plaintiffs argue that the statute authorizes an officer to arrest one who is personally peaceful and orderly, but whose unorthodox views are irritating to onlookers. Counsel for both the plaintiffs and the defendants, as well as the members of this court, are all agreed that if the people who have attempted to assemble are peaceful, they may not lawfully be penalized when outsiders are activated to cause a disturbance by reason of their intense hostility to the unpopular attitudes espoused by those in the assembly. Edwards v. South Carolina, 372 U.S. 229, 238, 83 S. Ct. 680, 9 L.Ed.2d 697 (1963). We agree with defendants' counsel that the provisions of § 947.06, reasonably construed, do not authorize the arrest of a member of an assembly if a disturbance occurs that is caused by onlookers and not by members of the assembly; a similar interpretation applies to damage that is caused by persons who are not members of the assembly.

The statute defines an unlawful assembly as one "which causes such a disturbance of public order that it is reasonable to believe that the assembly will cause injury to persons or damage to property * * *." (emphasis added). We conclude that this statute adequately evidences a design to penalize the members of assemblies only when it is their own conduct which causes a disturbance or damage, as distinguished from a disturbance or damage that is caused by militant onlookers.

Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 (1951) and Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) do not serve to invalidate the statute at bar....