Koen v. Long

• Decision Date: 04 August 1969
• Docket Number: No. 68 C 429(1).,68 C 429(1).
• Citation: 302 F. Supp. 1383
• Parties: Charles KOEN, Percy Green, Richard P. Koch and Joel Allen v. Isaac A. LONG et al.
• Court: U.S. District Court — Eastern District of Missouri

302 F. Supp. 1383

Charles KOEN, Percy Green, Richard P. Koch and Joel Allen v.Isaac A. LONG et al.

No. 68 C 429(1).

United States District Court E. D. Missouri, E. D.

August 4, 1969.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert B. Curtis, and Samuel H. Liberman, St. Louis, Mo., for plaintiffs.

Lashly, Caruthers, Rava, Hyndman & Rutherford, Murphy & Schlapprezzi, St. Louis, Mo., and James I. Bucher, Asst. Prosecuting Atty., City of St. Louis, St. Louis, Mo., for defendants.

MEMORANDUM OPINION AND ORDER

HARPER, Chief Judge.

The plaintiffs herein have instituted this action seeking certain injunctive and declaratory relief against an alleged scheme, plan or conspiracy to deprive them and members of their class of their civil rights under color of law, and in addition attack the constitutionality of three ordinances of the City of St. Louis.Jurisdiction is based upon the provisions of 28 U.S.C.A. § 1343.The action is maintained under 42 U.S.C.A. §§ 1981,1983and1985.

Plaintiff, Charles Koen, was at the time of this litigation "Prime Minister" of a voluntary association of Negro-Americans known as the "Black Liberators".The complaint describes the organization as one with a "militant outlook".Plaintiff, Percy Green, is and at all relevant times has been the chairman of ACTION, a voluntary association of both whites and Negroes whose stated primary purpose according to the complaint has been the economic improvement of members of the Negro race primarily through the elimination of racial discrimination in hiring and employment practices, although the evidence presented at the trial of this matter indicates it is a militant group sponsoring and participating in purported civil rights activities far beyond the pleaded purpose.Plaintiff, Richard P. Koch, is a member of a loose-knit organization commonly known as Students for a Democratic Society (SDS), and holds the office of "Coordinator" within the membership of the Washington University chapter of that organization.From the pleadings and evidence it is not entirely clear as to what the precise outlook or aims of that chapter of SDS are.Plaintiff, Joel Allen, was at the time of filing a member and officer of an organization called McCarthy for President, and at the same time was a member of SDS.

These four individuals sue in their own behalf and "pursuant to Rule 23 of the Federal Rules of Civil Procedure as a class action, on behalf of other citizens who, like plaintiffs, belong to organizations which it is alleged are unpopular with defendants, and who have participated and wish to continue participating by speech and conduct in activities which are controversial and unpopular with defendants but nevertheless lawful * * *."

The defendants, Long, Harrison, Walsh, Gates, Cervantes, Sanders and Rogers, constitute the past and present Board of Police Commissioners of the City of St. Louis, and under the provisions of § 84.010 et seq., RSMo 1959, V. A.M.S. are charged with governing the police department of the City of St. Louis.Defendant, Curtis Bronstrom, is the Chief of Police of the City of St. Louis.Defendant, Fredrick J. Grimes, is a lieutenant in said police force, presently stationed in the Ninth District of the City of St. Louis.Defendant, Thomas Shannon, is the prosecuting attorney for the City of St. Louis, and in such capacity is charged with the duty and power to prosecute violations of state misdemeanor statutes which occur within the city, § 56.490and§ 479.100 RSMo 1959, V.A.M.S. Defendant, Gary Gaertner, is the city counselor for the city, and under the ordinances and charter thereof is responsible for the prosecution of violations of the ordinances of the city.Defendant, George W. Cady, is a judge of the City Court of St. Louis, presently presiding in CourtNo. 1.Defendant, Richard Brown, is a judge of the Court of Criminal Corrections which has jurisdiction involving state misdemeanors and is the appellate court for appeals from judgments of the City Courts.

The essence of the complaint with respect to injunctive relief is found in the fourth paragraph.That paragraph with its sub-parts charges a concerted and conspiratorial plan and scheme to deprive plaintiffs of certain specified rights as follows:

"Defendants, * * * and others with whom they have acted in concert and conspired, have deprived, and unless enjoined by this court will continue to deprive, plaintiffs * * * of their constitutionally guaranteed rights to * * * and engage in other lawful activity which is unpopular with defendants.This deprivation has been accomplished in the course of a deliberate, concerted and continuing harassment under color of law including the following actions:

"a. * * *

"b. * * *."

Following said allegations and specific examples of the activities involved, in paragraphs 6 and 7the plaintiffs allege certain agency relationship and again urge conspiracy with the existence of a pattern and practice designed to intimidate and harass.

The second thrust of the complaint deals with the alleged unconstitutionality of three ordinances of the City: § 762.030, Public Disturbance of the Peace;§ 763.010, Unlawful Assembly; and § 765.010, Loitering.

Finally, plaintiffs allege irreparable injury and the lack of an adequate remedy at law, seeking to thus invoke federal equitable and declaratory powers.

A hearing on the requested preliminary injunction was held on October 18, 1968, and was continued on the 21st and 22nd of that month, and after receiving evidence there presented and upon oral argument of counsel, this court in an oral opinion refused to issue the preliminary injunction.On March 3, 1969, the final hearing on the permanent injunction and upon the merits of the declaratory relief was held and additional evidence was adduced.Upon request of parties time was granted within which to file briefs, which both sides have done.

The evidence presented by the plaintiffs was as broad as their complaint.It consisted basically of testimony concerning 17 arrests over a three-year period, 1966 to March, 1969; 4 other incidents; police search practices and other forms of alleged intimidation; and the procedures employed in City CourtNo. 1.The evidence lends itself to a breakdown into three major categories: Arrests and claimed police search practices together with other claimed illegal harassing actions; procedures and conduct at and before trials in City CourtNo. 1; and plaintiffs' attack on the three ordinances heretofore mentioned.

Before considering the evidence presented in these areas generally, several preliminary matters are raised by the defendants.First, all of the defendants, jointly, attack the maintenance of this suit as a proper class action under Rule 23,Federal Rules of Civil Procedure.Rule 23, insofar as applicable, provides:

"(A) One or more members of a class may sue * * * on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims * * * of the representative parties are typical of the claims * * of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."

As stated by the Advisory Committee, one of the purposes of the 1966amendments of this rule was to enable the institution of a class action "where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration."28 U.S.C.A. Rule 23,1967 Supp.Of course, the elimination of the pre-existing three types of categories also was designed to clearly place all class actions within the purview of the rules of res judicata.

In support of the propriety of the class action as alleged, plaintiffs cite many cases: Lankford v. Schmidt, D.C., 240 F.Supp. 550, aff'd4 Cir., 364 F.2d 197;Green v. Department of Public Welfare, etc., D.C., 270 F.Supp. 173;Cypress v. Newport News General Hospital Association, 4 Cir., 375 F.2d 648.In each of these cases the allowed class was both large and to a certain extent indefinite and incapable of specific enumeration.However, in each of these cases it was perfectly clear what the membership of the class was, and certainly the class involved did not depend on the state of mind of the particular individual.

In Chaffee v. Johnson, D.C., 229 F. Supp. 445, aff'd5 Cir., 352 F.2d 514, cert. den.384 U.S. 956, 86 S.Ct. 1582, 16 L.Ed.2d 553, the court stated:

"* * * The complaint described the alleged class as all persons who are workers for the end of discrimination and segregation in Mississippi, for the encouragement of the exercise by Negroes in Mississippi of their right to vote and to register to vote, and for the exercise and preservation of civil rights generally in Mississippi.Clearly this is not a proper class action.The vague and indefinite description of the purported class depends upon the state of mind of a particular individual, rendering it difficult, if not impossible, to determine whether any given individual is within or without the alleged class.The members of a class must be capable of definite identification as being either in or out of it."

The deficiency here urged by the defendants is precisely this one stated in Chaffee.Such a defect is even more pronounced here where membership in the class is dependent both upon the state of mind of the particular individual involved and upon the state of mind of the particular defendant involved in a situation in which it is perfectly apparent that the defendant's individual opinions as to any given organization may differ.

In the opinion of the court nothing in the 1966amendments to Rule 23 was designed to allow the inclusion of the type of class here described.With the clear applicability of res judicata to all class actions, the ability to identify any given person as a member of the class takes on an even greater...