Derby v. Town of Hartford, Civ. No. 83-107.

• Decision Date: 20 November 1984
• Docket Number: Civ. No. 83-107.
• Citation: 599 F. Supp. 130
• Parties: Elizabeth DERBY v. TOWN OF HARTFORD.
• Court: U.S. District Court — District of Vermont

599 F. Supp. 130

Elizabeth DERBY v. TOWN OF HARTFORD.

Civ. No. 83-107.

United States District Court, D. Vermont.

November 20, 1984.

Elliot M. Burg, South Royalton Legal Clinic, South Royalton, Vt., for plaintiff.

Anthony B. Lamb, Paul, Frank & Collins, Inc., Burlington, Vt., for defendant.

MEMORANDUM OF DECISION

HOLDEN, Senior District Judge.

The plaintiff, Elizabeth Derby, has released her claim for compensatory damages but continues her action against the defendant, Town of Hartford, Vermont, pursuant to 42 U.S.C. § 1983 ("Section 1983") seeking a declaratory judgment that the Town of Hartford's loitering ordinance is unconstitutional both on its face and as applied to the plaintiff.¹

Both sides have moved for summary judgment on the constitutionality of the ordinance. For the reasons which follow, the court grants the plaintiff's motion for summary judgment. The defendant's motion for summary judgment must be denied.

Background Facts

On May 18, 1982, the Town of Hartford's Board of Selectmen enacted a loitering ordinance, which is reproduced in the margin.²

It appears in the record that the Hartford ordinance was enacted to combat the problem of people "lingering" in front of downtown business establishments, causing store owners to complain. Deposition of Ralph W. Lehman, Town Manager, at 4-5. Police officers deposed in connection with this litigation reported complaints voiced by downtown merchants of abusive language, blocked sidewalks and scuffling, obscene language and littering, drug use, and loud music after dark. Deposition of Michael Griffis, at 3-4; deposition of Henry Dupuis, at 7; deposition of Stephen Mairs, at 3. Yet the appearance of the troublemakers was of concern of the Selectmen as well.

An attempt to relocate these "lingerers" was unsuccessful, and complaints continued to mount. Finally, the challenged ordinance was adopted, aimed at the people that the downtown merchants disliked. Deposition of Jerome Gunsalus, at 56.

On the night of July 13, 1982, plaintiff left her apartment in White River Junction, Vermont to take a walk. Her doctor had recommended that she walk frequently as therapy for a health condition. On her walks, plaintiff would often stop to rest on account of shortness of breath and pain stemming from a hip injury. Early in the morning on July 14, 1982, plaintiff was resting on the steps of the First Interstate Bank in White River Junction.

Hartford Police Officer Jerome Gunsalus observed the plaintiff as she sat on the bank's steps. The officer considered the plaintiff to be violating the law because "she remained in one place, was what she was doing. That constituted loitering." Deposition of Jerome Gunsalus, at 20. When Officer Gunsalus instructed the plaintiff to move on, she refused. At this point, Gunsalus radioed his shift supervisor, Sergeant Rielly. On his arrival, Officer Rielly warned plaintiff that "if she didn't move along she would be cited for loitering." Id. at 21. Again, plaintiff refused to move and was taken to the local police station. Id. at 21-22.

At defendant's police station, plaintiff was booked for loitering and was issued a citation. Subsequently, the charges against plaintiff were dropped by order of the Hartford Police Chief Guarino because the 60-day waiting period had not passed before the ordinance became effective. Upon being advised that the citation was defective, Officer Gunsalus went to the plaintiff's residence, retrieved the citation and destroyed it. Id. at 39.

Discussion

Subject Matter Jurisdiction

Although neither party questions the court's jurisdiction to grant declaratory relief concerning the constitutionality of a local ordinance in the face of a stipulation of dismissal of plaintiff's claim for money damages, it is the court's duty to determine whether subject matter jurisdiction exists. City of Kenosha v. Bruno, 412 U.S. 507, 511, 93 S.Ct. 2222, 2225, 37 L.Ed.2d 109 (1973), citing Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908).

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which provides a remedy in law or equity for deprivations of "any rights, privileges, or immunities secured by the Constitution and laws."³ In 1978, the United States Supreme Court held that local governing bodies can be sued directly under Section 1983 for monetary, declaratory, or injunctive relief where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978).

Pursuant to Article III of the U.S. Constitution, the jurisdictional issue to be decided is whether an actual case or controversy exists sufficient to confer subject matter jurisdiction on this court. More specifically, the issue is whether a genuine threat of enforcement exists under the loitering ordinance in question. The court finds some guidance in the case of Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). There, the complainant and others were warned to stop distributing handbills on the sidewalk of a shopping center protesting American involvement in Vietnam. The complainant departed to avoid arrest. However, his companion continued and was arrested and charged with criminal trespass. The plaintiff and others instituted suit under Section 1983 for declaratory and injunctive relief claiming that Georgia's criminal trespass statute was being applied in violation of their constitutional rights. The district court dismissed the action finding no actual controversy. The United States Court of Appeals for the Fifth Circuit affirmed.

The Supreme Court reversed and remanded, holding that the case did present an actual controversy under Article III of the Constitution and under the Federal Declaratory Judgment Act. The Court found that the alleged threats of prosecution were not imaginary or speculative and that petitioner was not required to expose himself to actual arrest or prosecution in order to present a constitutional challenge to an enactment which he contends deters the exercise of his constitutional rights. Steffel v. Thompson, supra, 415 U.S. at 458-460, 94 S.Ct. at 1215-16. The Court remanded the case for consideration of whether the controversy remained substantial in light of the country's reduced involvement in the Vietnam War, which had been the target of the petitioners' handbills.

The Court's concluding statements are instructive:

The solitary individual who suffers a deprivation of his constitutional rights is no less deserving of redress than one who suffers together with others.

We therefore hold that, regardless of whether injunctive relief may be appropriate, federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.

Id. at 474-75, 94 S.Ct. at 1223-24 (footnotes omitted). See also Ellis v. Dyson, 421 U.S. 426, 434, 95 S.Ct. 1691, 1696, 44 L.Ed.2d 274 (1975) ("A genuine threat must be demonstrated if a case or controversy, within the meaning of Art. III of the Constitution and of the Declaratory Judgment Act, may be said to exist").

The United States Supreme Court has frequently reiterated the basic test for determining the existence of an actual controversy sufficient to support the exercise of federal jurisdiction.

Basically, the question in each case is whether ... there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). See also Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972); Evers v. Dwyer, 358 U.S. 202, 203, 79 S.Ct. 178, 179, 3 L.Ed.2d 222 (1958) (per curiam).

Applying these principles to the Derby case leads to the conclusion that the court has jurisdiction to reach the merits of the plaintiff's complaint for declaratory relief. Plaintiff's affidavit in support of summary judgment states that since her arrest, she has been afraid to go out for walks for fear of being arrested or harassed by the police. Affidavit of Elizabeth Derby, at 1. The plaintiff asserts that she takes fewer walks, does not walk after dark, moves on if an officer comes by when she is resting, and otherwise attempts to seek rest when she is in the company of friends. Id. at 1-2. Plaintiff further asserts that in the future, she intends to engage in the conduct for which she was arrested on July 14, 1982 and for which she would have been prosecuted had there not been a technical defect in the loitering ordinance.

The court finds that the plaintiff has altered her behavior due to the existence of the defendant's loitering ordinance out of fear of future arrests. It was not disputed at oral argument on the pending motions that the Hartford Police Department intends to enforce the loitering ordinance should the court rule in the defendant's favor. The court holds that an actual controversy exists sufficient to confer subject matter jurisdiction on the court. Accordingly, the constitutionality of the challenged ordinance must be confronted by the court.

Merits

By motion filed July 11, 1984, the plaintiff has moved the court for summary judgment on the grounds that the Hartford loitering ordinance challenged in this lawsuit is unconstitutionally vague and overbroad. Plaintiff requests that the court declare the ordinance unconstitutional and void.

In opposition, the defendant moves for summary judgment in its favor on the issue of facial constitutionality. In...