Lim v. Andrukiewicz

• Citation: 360 F. Supp. 1077
• Decision Date: 11 June 1973
• Docket Number: Civ. A. No. 4940.
• Parties: Lillian LIM et al. v. Stanley P. ANDRUKIEWICZ, Major, Police Department, Providence, Rhode Island, et al., and Richard J. Israel, Attorney General of Rhode Island, Intervenor.
• Court: U.S. District Court — District of Rhode Island

360 F. Supp. 1077

Lillian LIM et al. v. Stanley P. ANDRUKIEWICZ, Major, Police Department, Providence, Rhode Island, et al., and Richard J. Israel, Attorney General of Rhode Island, Intervenor.

Civ. A. No. 4940.

United States District Court, D. Rhode Island.

June 11, 1973.

Stephen J. Fortunato, Jr., Providence, R. I., for plaintiffs.

Ronald H. Glantz, Acting City Sol., Providence, R. I., for defendants.

W. Slater Allen, Jr., Asst. Atty. Gen., Providence, R. I., for intervenor.

Before McENTEE, Circuit Judge, PETTINE, Chief District Judge, and DAY, District Judge.

OPINION

PETTINE, Chief District Judge.

The vexing problem before this Court concerns the constitutionality of police detention without arrest, as authorized by R.I.G.L. Title 12, Chapter 7, Section 1 (1956, 1969 Reenactment), which provides:

"Temporary detention of suspects.— A peace officer may detain any person abroad whom he has reason to suspect is committing, has committed or is about to commit a crime, and may demand of him his name, address, business abroad and whither he is going; and any such person who fails to identify himself and explain his actions to the satisfaction of such peace officer may be further detained and further questioned and investigated by any peace officer; provided, in no case shall the total period of such detention exceed two (2) hours, and such detention shall not be recorded as an arrest in any official record. At the end of any such detention period the person so detained shall be released unless arrested and charged with a crime."

This action seeks a declaration that this statute is unconstitutional, an injunction against the enforcement of such statute against the plaintiffs, and compensatory and punitive damages. Plaintiffs further request an order of this Court directing the defendants to destroy all photographs taken of plaintiffs and records made concerning their observations of and conversations with plaintiffs.

Jurisdiction is premised on 28 U.S.C. § 1343 and 42 U.S.C.A. § 1983. Because the questioned statute is of state wide application, this three judge federal court was convened pursuant to 28 U.S. C. §§ 2281 and 2284.

At noon on May 11, 1972, the plaintiffs, Lillian Lim, Ann DiDomenico and April Robbins together with other persons assembled in front of the United States District Court House in Providence to peacefully express their opposition to the bombing raids in North Vietnam. The demonstration lasted for approximately forty-five minutes. During that time certain members of the group walked about the sidewalk carrying signs and talked to passing pedestrians. For a short period the plaintiff Robbins and several others lay on the court house steps to "dramatize the effects that weapons of war have on people." There is no evidence before the court that these demonstrators were in any way disruptive of the court house business or of the pedestrian or vehicular traffic. In short the demonstration was peaceful and orderly as must have been observed by the several policemen who were posted in the vicinity.

After leaving the area the three plaintiffs went to a nearby restaurant. While there they were accosted by two of the defendants and transported by car to the detective bureau at the Providence police station. They were held approximately forty minutes while questioned about the demonstration and their future plans. The apprehension and questioning was under the direction and control of the defendant, Major Stanley P. Andrukiewicz, who told the plaintiff Robbins that he would be seeing her in the future. The plaintiffs were not at any time given "Miranda warnings." Although plaintiff Robbins requested permission to make a telephone call, she was not allowed to do so.

Two inconsistent arguments have been raised in defense of this statute. First, it is urged that this Court should abstain because a savings construction might be given to this statute by the Rhode Island Supreme Court. In support of abstention defendants cite City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959). Secondly, it is argued that decisional law subsequent to the enactment of the statute has authoritatively interpreted the statute so as to limit its operation to circumstances constitutionally permitting arrest. The interpretive Rhode Island opinions referred to by defendants are Kavanagh v. Stenhouse, 93 R.I. 252, 174 A.2d 560 (1961), app. dismissed 368 U.S. 516, 82 S.Ct. 529, 7 L.Ed.2d 521; Ahern v. Lynch, 99 R.I. 316, 207 A.2d 296 (1965); Barth v. Flad, 99 R.I. 446, 208 A.2d 533 (1965); Berberian v. Smith, 99 R.I. 198, 206 A.2d 531 (1965); and State v. Giragosian, 107 R.I. 657, 270 A.2d 921 (1970).

Plaintiffs merely refer to Kavanagh, supra, which upheld the constitutionality of the challenged statute, and assert that it is settled that the statute permits detention on less than probable cause. This, plaintiffs emphatically argue, cannot be "logically or constitutionally squared with the Fourth and Fourteenth Amendments of the Constitution."

The magnitude and complexity of the constitutional question cannot be treated so blithely. The concept of arrest with all its legal and sociological implications has persistently plagued the courts. Although Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) has eliminated, as determinative, the labels of "arrest" and "detention" in favor of the Fourth Amendment standard of the reasonableness of searches and seizures, there is a treacherous span of uncharted waters before resolution of the issue of the legality of custodial interrogation on a standard falling short of probable cause. See Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969). See also W. LaFave, "Street Encounters" and the Constitution; Terry, Sibron, Peters and Beyond, 67 Mich.L.Rev. 40 (1968); J. Cook, Varieties of Detention and the Fourth Amendment, 10 Ala.L.Rev. 287 (1971).

One mode of analysis of the challenged statute is to view it as composed of two parts. The first part authorizes the police, on reasonable suspicion of a crime, to stop a person and ask certain limited questions. This could be thought of as authorizing "field detention and interrogation." The second part of the statute allows a policeman who is not satisfied with the answers given to further detain and question the person for a two hour period without arresting that person. This "custodial detention and interrogation" usually takes place at the police station.

Plaintiffs have attacked the entire statute on its face, claiming that it authorizes detention of both types on less than probable cause. Therefore, an assessment of plaintiffs' challenge necessarily involves consideration of what standard authorizes field detention, what standard authorizes custodial detention, the relationship of the two parts of the statute, and the severability of the two portions. This inquiry, in turn, must focus on the opinions of the Rhode Island Supreme Court construing and interpreting R.I.G.L. § 12-7-1.

The Rhode Island Supreme Court Decisions

The facts of Kavanagh v. Stenhouse, 93 R.I. 252, 174 A.2d 560 (1961), which sustained the constitutionality of R.I. G.L. § 12-7-1, may be found in the margin below.¹ Plaintiff in Kavanagh had both been questioned at the scene of an accident and brought to the police station for further questioning. In considering the plaintiff's argument that detention and arrest are synonymous in law and that he was falsely arrested, the Court made no distinction between field detention and interrogation and custodial detention and interrogation. Rather, the Court addressed itself to the question of whether the legislature could constitutionally distinguish between detention and arrest. It is highly unclear from Kavanagh whether the distinction made was one without a constitutional difference, that is, whether detention was authorized only on the same probable cause standard used for arrest or whether detention was permissible on a standard less than probable cause.²

In a subsequent case, Ahern v. Lynch, 99 R.I. 316, 207 A.2d 296 (1965), the Court interpreted its holding in Kavanagh as follows:

"In Kavanagh v. Stenhouse, 93 R.I. 252 174 A.2d 560, we held that the state could in a proper exercise of its police power distinguish between arrest and a mere detention for investigation when the detaining officer had `reason to suspect' some criminal act involving the detainee. We further held in that case that `reason to suspect' constitutes a reasonable standard for so detaining a person abroad as is consistent with the constitutional right to be free from arrest without warrant except on the basis of probable cause." 99 R.I. at 319, 207 A.2d at 297 (emphasis added)

If Ahern were the terminal word in the decisional interpretive evolution of the statute at issue, we would think that the "reason to suspect" standard of the first sentence of the statute embodied a probable cause standard as a prerequisite to stopping abroad and making inquiries of a suspect.

Ahern, however, is not the latest word. In State v. Ramsdell, 285 A.2d 399 (R.I.1971), the Court took a different view of Kavanagh:

"The defendant fails to distinguish a detention from an arrest. We have made such a distinction in Kavanagh v. Stenhouse, 93 R.I. 252, 174 A.2d 560 (1961), when we referred to the fact that § 12-7-1 expressly authorizes a peace officer to detain any person found abroad whom the officer reasonably suspects has committed, is committing, or is about to commit a crime and to ask the suspect for his name, address, the reason for his presence abroad and his destination. While this court believes it highly desirable that a citizen's travel upon the streets of our municipalities be unimpeded, we wish to make it clear that there is nothing ipso facto unconstitutional in the police briefly stopping a citizen under circumstances not justifying an arrest for the purpose of a

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