Lykken v. Vavreck

• Decision Date: 16 November 1973
• Docket Number: No. 4-71 Civ. 269.,4-71 Civ. 269.
• Citation: 366 F. Supp. 585
• Parties: David T. LYKKEN et al., Plaintiffs, v. Edward C. VAVRECK, Esq., Individually and as Assistant City Attorney of the City of Minneapolis, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

366 F. Supp. 585

David T. LYKKEN et al., Plaintiffs, v. Edward C. VAVRECK, Esq., Individually and as Assistant City Attorney of the City of Minneapolis, et al., Defendants.

No. 4-71 Civ. 269.

United States District Court, D. Minnesota, Fourth Division.

November 16, 1973.

Duane W. Krohnke, Minneapolis, Minn., and William I. Kampf, St. Paul, Minn., for plaintiffs; John C. Thomas, St. Paul, Minn., of counsel.

Keith M. Stidd, Minneapolis City Atty., by Raymond H. Hegna, Asst. City Atty., for defendants.

NEVILLE, District Judge.

This is a civil damage action, tried to the court with jury waived, brought under the Civil Rights Law, 42 U.S.C. § 1983, for claimed illegal arrest, an unlawful search and seizure, and the violation of other constitutional rights.

The events that give rise to the case occurred late in the evening on Saturday, May 9, 1970, at the home of three of the plaintiffs, David and Harriet Lykken and their teenage son Jesse. The other plaintiffs were all guests in the Lykken home that evening. The numerous defendants are members of the Minneapolis Police Department who participated, to a greater or lesser extent, in the arrest and transportation to jail of the plaintiffs. Plaintiffs were arrested for operating or being present in a disorderly house in violation of a Minneapolis ordinance.¹ Plaintiff David Lykken also later was charged with selling liquor without a license.² All charges brought in the Municipal Court of the City of Minneapolis subsequently were dismissed without any convictions being obtained. Plaintiffs have brought this joint action for damages.

Plaintiff David Lykken is a professor at the University of Minnesota. The gathering at his home the evening of May 9, 1970, was in the nature of an "open house", intended to raise money on behalf of an ad hoc group entitled "People Against Missiles", which group recently had been formed by several university students for the purpose of organizing opposition to a proposed antiballistic missile installation in or near Nekoma, North Dakota. None of the Lykkens had any direct connection with People Against Missiles; indeed, they apparently were not even acquainted with the group's organizers, plaintiffs Kay Halvorson and Sally Buckley. Through mutual acquaintances, however, it was arranged for the Lykkens, sympathetic to the cause, to make their home available for the May 9th fundraiser.

The idea behind the Saturday evening fundraiser was to have refreshments (beer, coffee, pop) available for those in attendance, which guests would "pay for" in the form of donations to the cause. David Lykken agreed to supply the beer for the fundraiser as his donation, so that any money raised could go to the group's projects and not need be used to defray the expenses of the fundraiser. Accordingly, he bought and had on hand at his home that evening several cases of so-called strong beer, classified under ordinances and statutes as requiring a license for its sale.

The fundraiser was publicized in several ways. Mailing lists of local "peace organizations" were used to mail out postcards. Also, notices were placed in the newsletters of several organizations, informing members of the existence and purposes of People Against Missiles as well as of the fundraiser to be held at the Lykken home. Finally, a mimeographed flyer was distributed at the University of Minnesota. It, too, described the group's purposes as well as inviting the reader to the "party at Harriet and David Lykken's house." In reference to that gathering, the flyer contained the words "donation and cash bar". It appears that all those who actually came to the fundraiser came in response to the post cards or other personal invitation. No one appears, according to the testimony, to have come on account of the flyer, other than the police. On May 7, 1970, a member of the Minneapolis Police Department came across one of these flyers on the University of Minnesota campus. The next day, May 8, 1970, he gave the flyer to defendant Tidgwell, a member of the police department's Morals Squad. Tidgwell subsequently showed the flyer to defendant Prentice, head of the Morals Squad. Prentice, who was in a hurry to (and did) leave town for the weekend, apparently looked at the flyer only briefly and told Tidgwell to handle it in the usual manner. Tidgwell also consulted with Assistant City Attorney Edward C. Vavreck for an opinion as to whether the flyer would justify the issuance of a search warrant. Vavreck examined the flyer, informed Tidgwell that no judge would issue a search warrant based thereon, and told him to handle it in the usual manner. Vavreck had no further connection until after the events described hereinbelow.

Defendant Tidgwell testified at trial that he was not interested in the political views expressed on the flyer, that his attention was attracted to it simply because of the words "cash bar," that by the location given for the party (in one of the better residential areas of Minneapolis) he knew that no liquor license had been issued for the premises, and consequently that if a cash bar were in fact operated it would be illegal. Thus, when advised to handle the situation in the normal manner, he proceeded to do just that, which meant sending an undercover officer to the scene to attempt to make a purchase. If a purchase were accomplished, an arrest could be made for a misdemeanor committed in the presence of a policeman without a warrant. Accordingly, at the Morals Squad briefing on the evening of May 9, 1970, Tidgwell showed the flyer particularly to defendants Haertel and Searles, who were working as a team, and told them how the matter should be handled. Haertel and Searles, who, like Tidgwell, were working in plain clothes and not in uniform, had other assignments for the evening but agreed to stop by the Lykken home as they had time.

At about 10:00 P.M., Haertel arrived at the Lykken home, identified himself by name but without revealing that he was a police officer, and was invited in by David Lykken. His partner, Searles, waited in their patrol car, which was parked some distance away. Inside the Lykken home, the fundraiser had been in progress since about 8:00 P.M. The evidence indicated that there were never more than 25 or 26 people at most in attendance at any one time. They apparently engaged in small-group conversation, discussing the antiballistic missile system, how to protest against it, and about politics in general, including an antiwar march that had taken place that afternoon in which a number of the guests had participated. While there were some university students at the fundraiser, most of the guests were middle-aged adults. David Lykken described the party as quiet, even dull and boring; and there is no evidence to the contrary. There was no music or any loud or raucous activity. Of those who had refreshments, some had coffee or pop, others were drinking beer. No wine or hard liquor was consumed or even available.³ Also in the house were two small baskets for the collection of money. One, in the living room, was labeled "ABM donations"; the other, in the kitchen, near the refrigerator where the refreshments were kept, was labeled "Donations, Beer 50¢, Pop 25¢, Power to the People", or words to that effect. There is evidence that from time to time during the evening, guests placed money in one or both of the baskets, either spontaneously or at the point of obtaining something to drink. Upon entering the house, Haertel went into the kitchen, where the son Jesse Lykken, who was playing cards with some friends, gave him a beer from the refrigerator. No request for money was made, but Haertel gave Jesse Lykken a marked $5.00 bill for the beer and received change from the basket in the kitchen. At some point later in the evening Haertel obtained another bottle of beer and placed an additional $.50 in coin in the basket.

Haertel stayed at the fundraiser for some time, perhaps as long as an hour. During that time, he engaged in conversation about the antiballistic missile system and the activities of People Against Missiles. He eventually left to rejoin his partner Searles. Haertel reported to Searles, and via police radio to Tidgwell, what had transpired in the Lykken home. Tidgwell asked to meet with them personally at a location about one mile from the Lykken home. Haertel and Searles drove to that location, and in the meantime Tidgwell requested several other officers, including defendants Ottoson, Smith, Shanahan, and Danielson, to meet at the same location. At the police "meet", Tidgwell announced the plan for arresting everyone present at the Lykken home: Haertel and Searles were to, and did, return to the fundraiser and attempt to make a further purchase of beer, the other officers were to follow in about ten or fifteen minutes at which time the arrests would be effected.

Haertel then returned to the Lykken home, this time accompanied by Searles, whom he introduced to David Lykken, but again neither of whom identified themselves as policemen. David Lykken gave them beer from the refrigerator, for which they put a marked bill in the basket. Discovering the refrigerator to be low on beer, David Lykken went to the basement where a reserve supply of beer was kept in a second refrigerator, and brought up several bottles to restock the upstairs refrigerator.

The details of the arrests themselves are not completely clear and the subject of some conflict in the evidence. At approximately the time the arrest was announced, policemen knocked and either were let in or let themselves in at both the front and back doors of the Lykken home. Searles then identified himself as a policeman, though Haertel remained "undercover". Either Searles or Tidgwell then announced that everyone was under arrest. Some of the plaintiffs testified that they were never actually told that they were under arrest, but their status must have been obvious from the situation. All...