Fratiello v. Mancuso

• Citation: 653 F. Supp. 775
• Decision Date: 12 February 1987
• Docket Number: Civ. A. No. 84-0615 L.
• Parties: Frederick FRATIELLO, Plaintiff, v. Anthony MANCUSO, Chief of Police for the City of Providence; Detective George Dean; Detective Malcolm Brown; Sargeant Joseph Gleckman; Patrolman Robert Larkin; Patrolman James Rodger; Patrolman Orestes Fleitas; The City of Providence; and Stephen T. Napolitano, City Treasurer for the City of Providence, Defendants.
• Court: U.S. District Court — District of Rhode Island

653 F. Supp. 775

Frederick FRATIELLO, Plaintiff, v. Anthony MANCUSO, Chief of Police for the City of Providence; Detective George Dean; Detective Malcolm Brown; Sargeant Joseph Gleckman; Patrolman Robert Larkin; Patrolman James Rodger; Patrolman Orestes Fleitas; The City of Providence; and Stephen T. Napolitano, City Treasurer for the City of Providence, Defendants.

Civ. A. No. 84-0615 L.

United States District Court, D. Rhode Island, First Division.

February 12, 1987.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Sandra P. Blanding, Warwick, R.I., for plaintiff.

Allison L. Holm, Asst. City Sol., Providence, R.I., for defendants.

OPINION

LAGUEUX, District Judge.

This matter is before the Court pursuant to 28 U.S.C. § 1343 (federal civil rights jurisdiction). Plaintiff Frederick Fratiello, alleging deprivation of his federal constitutional rights, seeks declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202; injunctive relief pursuant to 42 U.S.C. § 1983 and costs and attorney's fees under 42 U.S.C. § 1988. Defendant Colonel Anthony Mancuso is sued individually and in his official capacity as Chief of Police for the City of Providence. Defendants Dean, Brown, Gleckman, Larkin, Rodger and Fleitas were, at all relevant times, members of the Providence Police Department and are sued individually and in their official capacities as agents, servants, and employees of the defendant City of Providence. Defendant Steven T. Napolitano is sued in his official capacity as Treasurer for the City of Providence.

The instant action (a four count complaint) arises out of a series of arrests and threatened arrests, undertaken under color of law, to which plaintiff was allegedly subjected by the above-named members of the Providence Police Department. In Count I of his complaint, plaintiff asserts that such activities were conducted in bad faith, with the intent to harass plaintiff and to interfere with his exercise of his right of free speech as guaranteed by the First and Fourteenth Amendments to the United States Constitution. Count II alleges that the conduct of the police defendants was violative of plaintiff's Fourteenth Amendment right to equal protection of the laws. In Count IV, plaintiff contends that defendant Mancuso failed to adequately train, educate, supervise and discipline the named defendant police officers and detectives. Plaintiff asserts that such failure resulted in denial of his federal constitutional rights as specified in Counts I and II. Additionally, in Count III of his complaint, plaintiff challenges §§ 3-4, 3-5, 16-3(c) and 16-10 of the Code of Ordinances of the City of Providence. Plaintiff contends that the ordinances are unconstitutionally vague and overbroad.

A trial on the merits in this jury-waived action was conducted by this Court in September 1986. Post-trial memoranda have been submitted by the parties and the matter is now in order for decision.

Plaintiff, a mechanical engineering graduate of Columbia University, is the founder of an organization known as the Proletarian Warriors (Warriors). At trial, plaintiff testified that the association's ultimate goal is the overthrow of the capitalist class. The Warriors advocate armed revolution, if necessary, as a means of accomplishing this objective. The organization seeks to disseminate its ideas to the public through the use of leaflets, banners, posters and bullhorns as well as by amplification of recorded music and sponsoring cultural events. On several occasions, such activities have resulted in contacts between plaintiff and members of the Providence Police Department.

For the last several years, plaintiff has sustained himself by doing menial labor, coming out of self-imposed exile every March or April in order to drum up support for the Warriors' annual May Day demonstration. His supporters, at one time, numbered as many as twelve, but in recent times, membership in the Warriors has diminished to only two or three persons. At trial, plaintiff was the only adherent to appear and espouse Proletarian Warrior philosophy.

Plaintiff testified that his first encounter with the Providence Police occurred in April 1982 when he and another member of the Warriors were affixing two-page paper leaflets, measuring approximately eight and one-half by eleven inches, to utility poles on Broad Street. The leaflets, in addition to articulating the organization's objectives and philosophy, invited the reader to attend a Warriors-sponsored International Workers' Day march and rally that was scheduled for May 1, 1982. Plaintiff testified that he and his companion were arrested and ultimately detained at the police station for approximately one-half hour by Detectives Dean and Brown. At the time, both detectives were members of the Providence Police Department's Terrorist and Extremist Suppression Team (TEST). Both plaintiff and Detective Dean testified that the pair was released from custody, without charges having been filed, after a telephone company representative stated that the company did not object to the attachment of leaflets to its utility poles.

Plaintiff's posting activities resulted in contacts with members of the Providence Police Department on several subsequent occasions. Plaintiff testified that on one occasion he and two companions were affixing Warriors leaflets to utility poles on Dexter Street when they were approached by police officers. The officers allegedly inquired as to whether the leaflets were "the communist stuff" and ordered cessation of posting efforts.

In August 1982, plaintiff and another person were engaged in similar activities on Broad Street. Plaintiff testified that he was detained at the scene, by being forced to stand "spread-eagled" against a police cruiser for approximately twenty minutes, by unidentified police officers. After the officers discarded the paste that plaintiff had been using to affix leaflets to utility poles, plaintiff was released but warned not to continue his posting activity.

In March 1983, plaintiff was arrested and charged with violation of § 3-4 of the Code of Ordinances for the City of Providence. Section 3-4 restricts the posting of notices within the occupation line of streets and highways. At the time of his arrest, plaintiff and a companion were again affixing to utility poles on Broad Street eight and one-half by eleven-inch leaflets explaining the Warriors' views. The charge against plaintiff was ultimately dismissed.

In March 1984, plaintiff was affixing leaflets publicizing a musical event to utility poles on Camp Street when he was ordered to cease such efforts by Detective Dean and other police officers. The concert to which the advertisements referred was not sponsored by the Warriors and the leaflets contained no reference to the organization's views or activities.

Plaintiff further testified that on two other occasions, both in March 1985, he was threatened with arrest while engaging in Warriors-related posting. As a result of the series of arrests and threatened arrests to which he was subjected, plaintiff stated that he curtailed his leaflet-posting efforts.

Plaintiff testified that, at sometime prior to May 1, 1984, he had unsuccessfully sought municipal permission to affix leaflets to utility poles. Plaintiff stated that he first telephoned the office of the Commissioner of Public Safety. This office referred plaintiff to the Public Works Department. However, when plaintiff telephoned that division, he was informed that such matters were not within its jurisdiction. Plaintiff testified that he then wrote to the Public Works Committee of the City Council but that the Committee failed to respond to his request. A copy of plaintiff's letter to the Committee was admitted into evidence. However, the Committee Chairman, James Petrosinelli, testified that he had never received any requests, written or otherwise, from plaintiff.

Another encounter between plaintiff and members of the Providence Police Department occurred on April 14, 1982. At approximately 3:00 P.M., plaintiff and three other members of the Warriors, including one person who was carrying a red flag and two others who were distributing leaflets identical to those which plaintiff had posted earlier on Broad Street, marched along Westminster Mall to the intersection of Westminster and Dorrance Streets. There, using a bullhorn, plaintiff began to explain the organization's scheduled International Workers' Day activities to passersby. Plaintiff testified that, almost immediately, a mounted police officer, Patrolman Rodger, ordered him to cease use of the bullhorn. Officer Rodger informed plaintiff that use of such an amplification device without a permit was prohibited. Plaintiff, asserting that no such permit was necessary, refused to comply with the police officer's order. Instead, plaintiff addressed the crowd of onlookers that had gathered, inviting them to observe how fearful the police were of the Warriors' message.

Officer Rodger did not testify at trial. However, a transcript of his deposition testimony of September 13, 1983, with accompanying exhibits, was admitted into evidence without objection. Officer Rodger's testimony provides a different recollection of the events of April 14, 1982. At approximately 3:00 P.M. on that date, Officer Rodger was directing vehicular traffic at the intersection. He testified that plaintiff had been addressing passersby for approximately ten to fifteen minutes before he elected to intercede. Officer Rodger stated that he approached plaintiff only after a pedestrian complained that she was afraid to work her way through the crowd and was, thus, unable to enter a nearby bank.

Initially, Officer Rodger requested that plaintiff lower the volume of his bullhorn. However, plaintiff refused to do so. By this time, students from various secondary schools had disembarked from school buses in the immediate vicinity. Approximately 400 people had gathered...