Livingston v. Garmire, 69-1151-Civ.

Citation308 F. Supp. 472
Decision Date16 January 1970
Docket NumberNo. 69-1151-Civ.,69-1151-Civ.
PartiesMarvin LIVINGSTON, Stanley Walker, through his next friend and mother, Amy Walker, and Edward Powell, as individuals, and as a class for all those similarly situated, Plaintiffs, v. Bernard GARMIRE, as Chief of Police of the City of Miami, and William Porter, as Prosecuting Attorney for the Municipal Court of the City of Miami, Defendants.
CourtU.S. District Court — Southern District of Florida

C. Michael Abbott, Miami, Fla., E. O. P. I. Legal Services, for plaintiffs.

Allan H. Rothstein, City Atty., S. R. Sterbenz, Asst. City Atty., Miami, Fla., for defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT

EATON, District Judge.

This is a class action brought by the plaintiffs under Rule 23(b) (2), Fed.R. Civ.P. The individual plaintiffs currently face prosecution before the Municipal Court of the City of Miami, Florida. Defendants are Bernard Garmire, the City's Chief of Police, and William Porter, the Prosecuting Attorney for the Municipal Court. The individually named plaintiffs sue as representatives of the class of all black citizens who now or in the future face prosecution in the Municipal Court of the City of Miami for disorderly conduct under subsections (a) and (f) of § 38-10, Miami City Code, commonly known as the "disorderly conduct" ordinance.

The amended complaint alleges that subsections (a) and (f) of the disorderly conduct ordinance are unconstitutional on their face, contrary to the guarantees of the First, Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States. It alleges that subsections (a) and (f) have a "chilling effect upon" and abridge plaintiffs' freedom of speech; deny them their right of privacy; and are palpably vague and overbroad, thus depriving plaintiffs of due process of law, while giving the defendants unbridled discretion to arrest at will whomsoever they please.

Plaintiffs specify in their complaint that in the month of July, 1969, the defendant Garmire, through his agents, made 153 arrests for disorderly conduct and that 82% were under subsections (a) and (f). They say that in August, 138 arrests were made for disorderly conduct, 91% of which were under subsections (a) and (f). In the month in which the three named plaintiffs were arrested and charged under the disorderly conduct ordinance, it is alleged that 69% of the arrests were under subsections (a) and (f).

Despite the prayers in the "wherefore" clause that this Court should enter declaratory judgment declaring the entire disorderly conduct ordinance unconstitutional, or, in the alternative, subsections (a) and (f) of the ordinance unconstitutional, the Court will limit itself to declarations and to injunctive orders having to do with subsections (a) and (f). This is so because no plaintiff has been arrested, nor is prosecution threatened, for conduct or speech violative of any section of the ordinance save subsections (a) and (f), and because it is alleged that enforcement of those two particular subsections discriminates against the class.

This opinion will discuss the unconstitutionality of subsection (a). An opinion to follow within ten days will deal with subsection (f).

Subsection (a) of § 38-10, Miami City Code, reads as follows:

"Any person in the city shall be deemed guilty of disorderly conduct who:
(a) Shall make, aid, countenance or assist in making any improper noise, riot, disturbance, breach of the peace or a diversion tending to a breach of the peace."

This Court has jurisdiction of this cause on the basis of both general federal question jurisdiction, 28 U.S.C. § 1331, and special federal jurisdiction of cases seeking relief for certain specified wrongs, 28 U.S.C. § 1343.

Defendants urge that one of the doctrines of federal abstention is applicable here and should be utilized in order to allow the state courts of Florida to adjudicate the questions presented to this Court. Defendants point out that the individual plaintiffs currently face prosecution in the Municipal Court for violations of the challenged subsections of the ordinance; that the plaintiffs may assert their constitutional attack in the Municipal Court; that a ruling by the Municipal Court would be appealable through the state court system; and that the final state court ruling is subject to review by the Supreme Court of the United States.

On the question of federal forbearance we look to the opinion written by Judge Will for a three judge district court in the case of Landry v. Daley, 280 F.Supp. 938 (N.D.Ill.E.D.1968). Under the general heading "The question of federal forbearance," we find that the language of 1, 2, beginning on page 946 of that case, is applicable here. Therefore, rather than repeat those pertinent observations, we accept them as our own and incorporate them by reference. Moreover, the class alleged by plaintiffs in the instant case includes members who do not now face prosecution. The subsections in dispute are challenged on grounds of overbreadth and vagueness. In Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), the Supreme Court of the United States directed that under such circumstances a federal court has a duty to adjudicate the federal claims which are before it and to render declaratory relief one way or the other.

In Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), the Supreme Court of the United States dispelled any notion that federalism requires automatic deference to state courts. The Court wrote: "The allegations in this complaint depict a situation in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights." There the Supreme Court said that "A substantial loss or impairment of freedoms of expression will occur if appellants must await the state court's disposition and ultimate review in this Court of any adverse determination." The same is true in our case.1

In addition to the directives handed down to this Court by the Supreme Court of the United States in Zwickler and Dombrowski, a study of Florida Court of Appeals decisions and Supreme Court of Florida decisions interpreting statutes and ordinances similar to the subsections before this Court leads us to the conclusion that we should not abstain.

The first step toward the determination of the constitutionality or unconstitutionality of subsection (a) is to determine how the Florida appellate courts have construed ordinances or sections of ordinances which bear close similarity to subsection (a). Those constructions are as binding upon us as though the precise words had been written into the subsection. The interpretations by the state courts of last resort are binding upon questions of state law.

Thirty years ago the Supreme Court of Florida, in State ex rel. Green v. Capehart, 138 Fla. 492, 189 So. 708 (1939), considered the question of the constitutionality of a Hollywood, Florida, ordinance, a portion of which included the exact language of subsection (a) of the Miami ordinance here under attack. Though reversing on other grounds, the Supreme Court of Florida disposed of the constitutional challenge preemptorially with these words: "We think the Ordinance is valid."

In Matteson v. City of Eustis, 140 Fla. 591, 190 So. 558 (1939), that Court, at least by implication, held that a City of Eustis ordinance under which a citizen had been charged with disturbing the peace and quiet of the City of Eustis in that he "did make or cause to be made loud, unusual, and offensive noise and disturbance," was not violative of the Fifth Amendment to the Constitution of the United States.

In the City of St. Petersburg v. Calbeck, 114 So.2d 316 (2 Dist.Fla.App. 1959), the Court quashed the judgment of a Circuit Court which had held unconstitutional an ordinance similar to the ordinance in State ex rel. Green v. Capehart. The Second District Court of Appeal of Florida accepted the following definition of a breach of the peace: "In general terms a breach of the peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence or tending to provoke or excite others to breach the peace, or, as sometimes said, it includes violation of any law enacted to preserve peace and good order."2

In that case, the Florida court also accepted a construction of "disorderly conduct" which read as follows: "The term disorderly conduct has been construed as embracing all such acts and conduct as are of a nature to corrupt the public morals or outrage the sense of public decency, whether committed by words or acts." It gave its blessing to the proposition that the utterance of "abusive or profane language, and loud, disturbing, and obnoxious noises" might be regarded as breach of the peace or disorderly conduct. It agreed with language from McQuillan on Municipal Corporations, 3rd ed. section 24.99, which reads as follows: "It is not possible to define comprehensibly `disorderly conduct' any more than it is possible to define comprehensibly misdemeanors, nuisances, police power or insulting words; each case turns upon its facts, to be judicially determined."

After further proceedings in the Circuit Court, the Circuit Judge, not to be outdone, again reversed3 the conviction of the Calbecks, but on different grounds. The Circuit Court held that the conduct of the Calbecks prior to their arrest did not constitute disorderly conduct and, therefore, that the Calbecks' subsequent resistance to the arresting officers was not improper. The controversy went back to the Second District Court of Appeal in City of St. Petersburg v. Calbeck, Fla.App., 121 So. 2d 814 (1960). That Court again quashed the judgment of the Circuit Court. The Court held that the arrests were valid and that there was sufficient evidence to sustain the conviction before the municipal court. In deciding the question of the validity of the arrest, the Second District...

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9 cases
  • Livingston v. Garmire, 29463.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 10, 1971
    ...summary judgment, the district court entered an order declaring subsection (a) unconstitutional in its entirety.5 See Livingston v. Garmire, S.D.Fla.1970, 308 F.Supp. 472. In a separate later opinion6 the court also declared unconstitutional that part of subsection (f) proscribing the use o......
  • South Florida Free Beaches v. City of Miami, Fla., Civ. A. No. 82-1071-Civ-CA.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 3, 1982
    ...in this state because of their vagueness and overbreadth. Pritikin v. Thurman, 311 F.Supp. 1400 (S.D.Fla.1970); Livingston v. Garmire, 308 F.Supp. 472 (S.D.Fla.1970), aff'd., 437 F.2d 1050 (5th Cir.), vacated on other grounds, 442 F.2d 1322 (5th Cir. 1971).5 Likewise, in Ashton v. Kentucky,......
  • Severson v. Duff, Civ. A. No. 70-322-Civ-J.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • December 29, 1970
    ...declared unconstitutional by Florida federal district courts, Pritikin v. Thurman, 311 F.Supp. 1400 (S.D.Fla. 1970); Livingston v. Garmire, 308 F. Supp. 472 (S.D.Fla.1970). See also, University Committee to End War in Vietnam v. Gunn, 289 F.Supp. 469 (W.D. Tex.1968) (3-judge court) (per cur......
  • Fuller, In re, 40639
    • United States
    • United States State Supreme Court of Florida
    • November 10, 1971
    ...Le Flore v. Robinson, 434 F.2d 933 (5th Cir., 1970); Pritikin v. Thurman, 311 F.Supp. 1400 (S.D.Fla.1970), and Livingston v. Garmire, 308 F.Supp. 472 (S.D.Fla.1970). Appellant further contends the language in the statute proscribing '* * * such acts as * * * affect the peace and quiet of pe......
  • Request a trial to view additional results

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