Locke v. Vance

• Citation: 307 F. Supp. 439
• Decision Date: 19 December 1969
• Docket Number: Civ. A. No. 69-H-430.
• Parties: Eugene LOCKE et al., Plaintiffs, v. Carol S. VANCE et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

307 F. Supp. 439

Eugene LOCKE et al., Plaintiffs, v. Carol S. VANCE et al., Defendants.

Civ. A. No. 69-H-430.

United States District Court S. D. Texas, Houston Division.

December 19, 1969.

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Raymon Jordan and Bobby H. Caldwell, Houston, Tex., and Benjamin E. Smith, New Orleans, La., for plaintiffs.

Baker, Botts, Shepherd & Coates, Houston, Tex. (Wm. Harvin, R. G. Gooch and R. Palmer), and Joe S. Moss, Houston, Tex., and Robert Flowers, Asst. Atty. Gen. of Texas, of Austin, Tex., for defendants.

Before THORNBERRY, Circuit Judge, and INGRAHAM and SEALS, District Judges.

INGRAHAM, District Judge:

Plaintiffs, Eugene Locke, Dwight Allen and A.A.B.L., sue the defendants Carol S. Vance, Individually and as District Attorney in and for Harris County, Texas; Philip G. Hoffman, President of the University of Houston; Col. W. B. Bates, A. J. Farfel, Mrs. Gus S. Wortham, Edward D. Manion and William P. Hobby, Jr., in their capacities as members of the Board of Regents of the University of Houston, seeking a preliminary and permanent injunction enjoining the defendants from prosecuting them for violation of Article 466a¹ of the Texas Penal Code, V.A.T.S. Plaintiffs additionally seek a declaratory judgment that Article 466a of the Texas Penal Code is unconstitutional on its face for vagueness and overbreadth and unconstitutional as applied, being used by defendants in bad faith, not to secure valid convictions, but to deter plaintiffs' civil rights efforts in violation of the First and Fourteenth Amendments to the United States Constitution.

This action is maintained both individually and as a class action, the class including the named plaintiffs and the members of the civil rights organization and its adherents for whom they sue. Plaintiffs invoke the jurisdiction of the court pursuant to Title 28 United States Code, Sections 1343(3), 2201, 2202, 2281, 2284, and Title 42 United States Code, Sections 1983 and 1985.

Since plaintiffs pray for injunctive relief from the operation and enforcement of a state statute having a general application and allegedly violative of the Federal Constitution, a three-judge court was convened pursuant to Title 28 United States Code, Section 2281 et seq.

On June 18, 1969, after oral hearing, the court denied plaintiffs' petition for a preliminary injunction.

Defendants moved to dismiss the complaint or, in the alternative, for judgment on the pleadings, asserting that 1) plaintiffs' action is barred by the Anti-Injunction statute, Title 28 United States Code, Section 2283; 2) plaintiffs have failed to show irreparable injury and the absence of an adequate remedy at law; and 3) plaintiffs have failed to raise a substantial constitutional question.

On October 13, 1969, a hearing was held on both the motion to dismiss and the merits of the complaint. The case is now before the court for a determination of both issues. Having heard the evidence presented and having considered the briefs of counsel, the court enters this memorandum, the following to constitute findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

Plaintiffs Eugene Locke and Dwight Allen are members and officers of a black student organization on the University of Houston campus called Afro-Americans for Black Liberation (A.A. B.L.). The circumstances which preceded the filing of this complaint included various forms of protest activities by the plaintiffs in an effort to bring to the attention of the administration, certain reforms which the A.A.B.L. felt necessary to realize their stated objective of:

Elimination of all forms of racial and economic segregation in the state of Texas and to particularly organize students at the University of Houston on social, economic and political levels for the attainment of a richer and fuller academic life for themselves and for all Americans, regardless of race, color, creed or economic status.

Consistent with the above stated objective, the A.A.B.L., on February 7, 1969, presented a list of ten demands to the administration of the University of Houston. The demands included, inter alia, the establishment of a comprehensive department of Afro-American studies at the University of Houston and the hiring of more black administrators and faculty members. A special task force was appointed by Dr. Phillip Hoffman, president of the University of Houston, to consider the demands and make recommendations to the university.

Between February 7 and March 17, 1969, the A.A.B.L. organized rallies on the university campus in support of their demands and conferred both publicly and privately with university officials on the subjects contained therein. During this entire period, the administration displayed restraint and good faith in negotiating with the representatives of the A.A.B.L.

However, president Hoffman did not hesitate, in view of rumored disturbances, to restate university policy of long standing that the administration would not tolerate any major disruption of the educational program or threats to life or property and any student or organization failing to comply with public law subjected themselves to university action and action by public authorities.

Prior to March 17, 1969, the plaintiffs addressed assemblages of persons and spoke openly on the university campus, all without any administration interference or disciplinary action.

On the morning of March 17, 1969, the events of which day gave rise to the instant litigation, Eugene Locke was attacked by three unidentified assailants in a wooded area on the University of Houston campus. As a result of this incident, a rally was organized by Dwight Allen and held at 1:00 p. m. that day in front of the university center. Both Eugene Locke and Dwight Allen addressed the crowd, relating the events of the early morning assault on Mr. Locke and expressing dissatisfaction with the lack of police protection for black students. The rally terminated without incident and the group reassembled at the Traffic and Security Office on the university campus, apparently for the purpose of protesting the lack of action being taken by the Traffic and Security department regarding the assault on Mr. Locke.

The deposition testimony of Sterling Baker, Campus Security Chief, indicates that several members of the group, which numbered approximately 1,000 people by some estimates, made comments to the effect "we are going to take over the building (university center), and get us some free food". Mr. Allen was one of the members of the crowd attributed with making a statement to this effect. Mr. Baker also stated in his deposition that he asked Mr. Locke "not to let those people go over there and tear that building up. He was the one who could stop them, if he would." Shortly after this entreaty by Mr. Baker, the crowd dispersed and gathered again in the university center where shortly thereafter furniture was damaged and windows were broken in the Cougar Den and university bookstore. As a consequence of the plaintiffs organization and participation in the March 17th incident and the ensuing property damage, plaintiffs were charged on April 7, 1969, with violation of Article 466a of the Texas Penal Code.

I

We first turn to defendants' motion to dismiss and for the following reasons, deny the same and proceed to a consideration of the merits.

Defendants, through their motion to dismiss, challenge this court's jurisdiction to hear the cause sued upon, asserting that plaintiffs' action is barred by the Anti-Injunction statute, Title 28 U.S.C. Sec. 2283² and that plaintiffs have failed to show irreparable injury and the absence of an adequate remedy at law. The scope of inquiry in determining whether a question is properly cognizable by a three-judge court is set forth in Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962), where the Court, in a per curiam opinion states:

When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute. 370 U.S. at 715, 82 S.Ct. at 1296.

Assuming, as we must, that the allegations of the complaint are true, plaintiffs' allegation that a vague overbroad penal statute which is susceptible to sweeping and improper application is being selectively enforced against them, thereby stifling their first amendment rights alleges, at least formally, a sufficient basis for equitable relief. It appears clearly settled that a showing of unusual circumstances which have a "chilling effect" on the exercise of first amendment freedoms constitute sufficient irreparable injury to supersede the comity principle embodied in Section 2283. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Moreover, "§ 2283 is not a bar to injunctive relief against those pending criminal cases in which it is alleged and the facts indicate that the prosecution is brought in bad faith with the purpose and effect of suppressing speech." Sheridan v. Garrison, 415 F.2d 699 at 707 (5 CA 1969).

In order to determine whether such unusual circumstances exist so as to entitle a plaintiff to injunctive relief, it is frequently necessary to investigate the merits of the claim itself and the state action complained of. Broyhill v. Morris, 408 F.2d 820 (4 CA 1969); Jackson v. Choate, 404 F.2d 910 (5 CA 1968).

Defendants' last ground for dismissal rests upon the alleged failure of the plaintiffs to raise a substantial constitutional question. A constitutional question is considered insubstantial if it is "obviously without merit or because its unsoundness is so clearly demonstrated by previous decisions of the Supreme Court as to foreclose the...