Hearn v. Hudson

• Citation: 549 F. Supp. 949
• Decision Date: 23 April 1982
• Docket Number: Civ. A. No. 78-0248-R.
• Court: U.S. District Court — Western District of Virginia
• Parties: Robert L. HEARN, Plaintiff, v. W. Alvin HUDSON, etc., et al., Defendants.

549 F. Supp. 949

Robert L. HEARN, Plaintiff, v. W. Alvin HUDSON, etc., et al., Defendants.

Civ. A. No. 78-0248-R.

United States District Court, W.D. Virginia, Roanoke Division.

April 23, 1982.

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V. Anne Edenfield, Legal Aid of Roanoke Valley, Roanoke, Va., for plaintiff.

Linwood T. Wells, Jr., Asst. Atty. Gen., Richmond, Va., William M. Hackworth, Asst. Atty. Gen., Roanoke, Va., Donald Caldwell, Commonwealth's Atty., Roanoke, Va., for defendant.

OPINION

TURK, Chief Judge.

This § 1983 action arises from the arrest and incarceration of plaintiff Robert L. Hearn on May 31, 1978. Plaintiff Hearn seeks declaratory, injunctive, and monetary relief for numerous violations of his civil rights allegedly committed on that day by the City of Roanoke, Virginia, the City Sheriff, three of the Sheriff's deputies, the Chief of the Roanoke City Police Department, two Roanoke City policemen, and two Roanoke City magistrates.¹ The case is now before the court on motions for dismissal and cross motions for summary judgment. Many, but as shall become clear not all, of the material facts in this matter are not in dispute.

Plaintiff Hearn premises five separate claims on the events of May 31, 1978. Stated briefly, he urges first that the now-repealed breach-of-the-peace ordinance pursuant to which he was arrested is unconstitutionally vague and overbroad and that his arrest was therefore unlawful; he seeks a declaration of the ordinance's unconstitutionality, monetary damages from the arresting officers and the City of Roanoke, as well as expungement of any record of the arrest. Second, he contends that his rights were violated when the policemen arrested him and took him into custody instead of simply issuing him a summons and releasing him upon his promise to appear in court. Third, he urges that the manner in which the Roanoke City magistrates set his bail bond violated his rights. Fourth, he claims that he was unlawfully prevented from completing any telephone calls while confined at the Roanoke City Jail. Finally, he contends that jail personnel, in accordance with a policy of the City of Roanoke, were deliberately indifferent to his serious medical needs. Plaintiff alleges that he has an epileptic condition and claims that as a result of defendants' refusal to heed his requests for medical assistance, he experienced numerous epileptic seizures in his jail cell while awaiting the posting of his bail bond.

The following chain of events underlies these claims.

On May 31, 1978, plaintiff was arrested at his home by defendants C.B. Felty and R.A. Bower, both of whom are officers of the Roanoke Police Department. Felty and Bower had with them an arrest warrant charging plaintiff with breach of the peace, in violation of a local ordinance, former Roanoke, Va., Code Tit. 23, Ch. 4, § 1. This ordinance was repealed on December 3, 1979.²

The incident which seems to have precipitated the charge against plaintiff evidently was his threatening to harm some neighborhood children who, contrary to plaintiff's wishes, had been playing in his yard. (Hearn Dep. 76-77). A neighbor swore out a criminal complaint before defendant Bobby D. Casey, who is a Roanoke City magistrate. Magistrate Casey, finding probable cause to believe that a violation of the ordinance had occurred, issued the warrant for plaintiff's arrest.

When Magistrate Casey issued the warrant, he apparently wrote on it the figure of $200.00 in a space designated "bond required."³ After executing the warrant in accordance with its mandate, that is, by arresting the plaintiff, Officers Felty and Bower brought the plaintiff before defendant John A. Stinson, another Roanoke City magistrate. It is alleged that Magistrate Stinson failed to inquire — as he was required so to do⁴ — into plaintiff's individual circumstances to determine the amount or terms of his bail. Plaintiff asserts that the Roanoke city magistrates routinely set the amount of bail at the time the warrant is issued; later, when the arrested suspect is brought before the magistrate for a bail hearing, the predetermined amount of cash bail bond, as already written on the warrant, allegedly is followed mechanically. Plaintiff asserts that there was no inquiry into his individual circumstances or into means of assuring his presence for trial less restrictive than cash bail bond.

Unable to post the $200 cash bond required in his case, plaintiff was taken to the Roanoke City Jail. There is some dispute concerning the facts underlying plaintiff's claim that jail officials repeatedly denied his requests to place a telephone call.⁵ There is also some dispute as to the facts concerning plaintiff's claimed epileptic seizures and medical needs in the city jail.

In all, plaintiff was in police custody for about twelve hours. A friend posted his bail bond. The breach-of-the-peace charge was dismissed without ever coming to trial.

I.

One aspect of plaintiff's attack upon the breach-of-the-peace ordinance requires little discussion. The repeal of the ordinance of course has rendered moot plaintiff's prayer for a declaration of its invalidity. See Allee v. Medrano, 416 U.S. 802, 818, 94 S.Ct. 2191, 2202, 40 L.Ed.2d 566 (1974); 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3533 at 276 (1975).⁶ Plaintiff's damage claim, however, was not mooted by the repeal of the ordinance. 13 C. Wright, A. Miller & E. Cooper, supra at 272-73 (1975).

Nevertheless, the court has concluded that plaintiff is not entitled to recover damages from any of the defendants in this case on the claim that the arrest was unlawful because undertaken pursuant to an unconstitutionally vague or overbroad statute. As will be shown herein, the enforcement of a concededly vague or overbroad statute does not itself result in any injury compensable under § 1983 when the activity that triggered enforcement is without constitutional protection.

A.

It is of course well settled that damages may be awarded under § 1983 for deprivations of constitutional rights.⁷ It is now clear that the availability of damages awards under § 1983 is governed by principles of compensation. The Supreme Court has expressly disapproved the notion that those who violate constitutional rights should be held strictly liable to their victims, regardless of whether the constitutional violation caused the injury. Carey v. Piphus, 435 U.S. 247, 254-57, 98 S.Ct. 1042, 1047-49, 55 L.Ed.2d 252 (1978). Similarly, the Court has not accepted the suggestion that the plaintiff's injuries in cases of deprivations of constitutional rights should be presumed. Id. Rather, the Court has concluded that:

The basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights .... Rights, constitutional and otherwise, do not exist in a vacuum. Their purpose is to protect persons from injuries to particular interests, and their contours are shaped by the interests they protect.

435 U.S. 254, 98 S.Ct. at 1047. Thus, damages may be awarded a plaintiff under § 1983 to the extent necessary to compensate him for the injury he experienced with respect to a protected interest. Obviously, where no interest protected by the asserted right is injured, a damages award would not be appropriate.

B.

The first branch of plaintiff's claim to damages in connection with the allegedly unlawful arrest proceeds, as noted earlier, on the contention that the ordinance he was charged with violating is fatally overbroad and thus offends the First Amendment. Even if this ordinance were held to be unconstitutionally overbroad, however, the court concludes that plaintiff would not be entitled to recover damages under the circumstances disclosed here.

To be sure, injuries to interests protected by the First Amendment are compensable.⁸ But only when a plaintiff's own interests in free expression have been injured can he maintain a damages action based on the First Amendment.⁹ And, of course, to be compensable the injury must be to an interest within the scope of First Amendment protection.

In the instant case the plaintiff does not claim that his own personal interests in freedom of expression have been injured. His First Amendment claim is simply that the ordinance is so broadly drafted that it "sweeps protected speech and activity within its ban." Relying on overbreadth analysis, plaintiff seeks to assert the rights of hypothetical third persons to whom the ordinance might conceivably be applied in a manner that might violate, not his, but their rights.¹⁰

In its realization that "the First Amendment needs breathing space," Broadrick v. Oklahoma, 413 U.S. 601, 611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973), the Supreme Court has entertained claims of facial overbreadth as an exception to the usual rules of standing. "Litigants ... are permitted to challenge an overbroad statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." 413 U.S. at 612, 93 S.Ct. at 2916. It is the chilling effect that the overbroad statute has on others' protected activities that warrants the courts' hearing the constitutional attack upon it.¹¹

As this court views the matter, the principles underlying overbreadth adjudication do not provide any basis for fashioning a compensatory remedy in a civil action. In classic overbreadth analysis courts may disregard entirely the particular activity of the person challenging the statute; whether his own activity was actually within the zone of First Amendment protection is totally irrelevant to the question of overbreadth. He will be permitted — for the sake of those who presumably feel the chilling effect of the overly broad statute on their freedom of expression —...