Mcintosh v. White

• Decision Date: 19 March 1984
• Docket Number: No. LR-C-82-153.,LR-C-82-153.
• Citation: 582 F. Supp. 1244
• Parties: Robert "Say" McINTOSH, Plaintiff, v. Frank WHITE, Individually and as Governor of the State of Arkansas, Arkansas Republican Party — Frank White Election Committee, Curtis Finch, Jr., Individually and as Campaign Chairman of the Frank White Re-Election Committee, Arkansas State Police; Tommy Goodwin, Individually and as Director of the Arkansas State Police, North Little Rock City Police Department, Bill Younts, Individually and as Chief of North Little Rock Police Department, John Doe, and Richard Roe, etc., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

582 F. Supp. 1244

Robert "Say" McINTOSH, Plaintiff, v. Frank WHITE, Individually and as Governor of the State of Arkansas, Arkansas Republican Party — Frank White Election Committee, Curtis Finch, Jr., Individually and as Campaign Chairman of the Frank White Re-Election Committee, Arkansas State Police; Tommy Goodwin, Individually and as Director of the Arkansas State Police, North Little Rock City Police Department, Bill Younts, Individually and as Chief of North Little Rock Police Department, John Doe, and Richard Roe, etc., Defendants.

No. LR-C-82-153.

United States District Court, E.D. Arkansas, W.D.

March 19, 1984.

COPYRIGHT MATERIAL OMITTED

Horace A. Walker, Little Rock, Ark., for plaintiff.

Mary Stallcup, Asst. Atty. Gen., State of Ark., Little Rock, Ark., for defendants.

James M. McHaney, Little Rock, Ark., for Curtis Finch, Jr.

Walter Paulson, Jr., Little Rock, Ark., for Frank White.

Jim Hamilton, City Atty., No. Little Rock, Ark., for North Little Rock Police.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HENRY WOODS, District Judge.

FINDINGS OF FACT

1. The plaintiff, Robert "Say" McIntosh is a United States citizen and a resident of Little Rock, Pulaski County, Arkansas. He is a member of the black race.

2. Defendant Frank White was during the time frame relevant to this lawsuit Governor of the State of Arkansas and titular head of the Arkansas Republican Party. In February, 1982 he was a candidate for reelection.

3. Defendant Curtis Finch, Jr. was at all times material to this action chairman of the Frank White Re-Election Campaign Committee. He was charged with the executive control of the Frank White Re-Election Campaign Committee and thereby exercised the executive authority over its fund-raising activities. He is a citizen of Arkansas and holds no public office in the State of Arkansas.

4. Defendants Jerry Reinold and Barney Phillips are police officers of the Arkansas State Police and as such are charged with the responsibility for enforcement of the criminal laws of the State of Arkansas.

5. A Governor Frank White Appreciation Luncheon was scheduled to be held at the Little Rock Convention Center at noon on February 26, 1982. The Little Rock Convention Center is owned and operated by the City of Little Rock.

6. The Center is comprised of several exhibit halls and other areas which are available for rent for the conduct of public or private functions, and it is a regularly accepted practice to charge admission prices for the functions held therein and to exclude persons who have not paid an admission price.

7. The City of Little Rock does not involve itself in private functions nor does it require organizations holding private functions in the Center to hold them open to the public.

8. The Governor Frank White Appreciation Luncheon was designed as a fund raiser and was organized and financed by the Frank White Re-Election Campaign Committee and the Republican Party. The luncheon was open to those supporters of Mr. White who were willing to make a $125.00 campaign contribution in return for a ticket to the luncheon.

9. Vice President George Bush appeared as the featured speaker at the luncheon.

10. The luncheon was in all respects a private function, and admission was limited to ticket holders only.

11. On February 25, 1982 Reverend Daniel Bowman, accompanied by Mr. Robert "Say" McIntosh, purchased a ticket from the Campaign Committee, paying for the ticket in cash. It is not clear on whose behalf the ticket was purchased, but Mr. McIntosh and Rev. Bowman stated that they both contributed toward the purchase price.

12. On that same day Mr. McIntosh sent a letter to then Governor Frank White in which he stated that Mr. McIntosh intended to speak at the luncheon and requested that Governor White inform him whether he should speak before or after the Vice President.

13. A previous series of written and published statements indicated that Mr. McIntosh was both personally and politically opposed to Mr. White and to his candidacy for governor.

14. Finch was concerned over the purchase of a ticket with an amount tendered in cash, which could not be accepted in their belief because the amount exceeded that authorized by law for cash contributions under the Political Practices Act, Ark. Stat.Ann. § 3-1116. In view of plaintiff's past history, Finch was also concerned that plaintiff would disrupt a meeting at which the Vice President was the featured speaker.

15. The Secret Service had similar concerns and called in Mr. McIntosh and secured an agreement that he would not approach the head table where the Vice President would be seated and would not interrupt the latter's speech. McIntosh left the definite impression with the Secret Service agent that he planned to speak at the meeting but would speak from his seat.

16. At approximately 11:00 a.m. Mr. McIntosh came to the Convention Center and sought admission to the luncheon. Mr. Curtis Finch, accompanied by Sergeants Reinold and Phillips, members of the State Police and of the Governor's security force, met Mr. McIntosh at the door. Mr. Finch informed Mr. McIntosh that his ticket had been purchased in cash, in violation of the Political Practices Act, and that he would not be admitted to the function. Mr. Finch repeatedly tendered a refund and explained to Mr. McIntosh that he would not be allowed to enter the luncheon and asked him to leave the premises.

17. Mr. McIntosh on each occasion when asked to accept a refund refused and stated that he intended to enter the luncheon. Sergeant Reinold then identified himself and Sergeant Phillips and told Mr. McIntosh that the luncheon was a private function, that Mr. Finch would not accept his ticket, and that Mr. McIntosh was therefore requested to leave and would be required to do so.

18. When Mr. McIntosh refused to leave, Sergeant Reinold informed him that he would be arrested for creating a disturbance if he failed to leave the premises. Mr. McIntosh replied, "Well, take me to jail."

19. Mr. McIntosh was thereupon arrested at 11:27 A.M., according to the State Police Radio Log, and escorted out of the building by Sergeants Reinold and Phillips. As he was leaving via the escalator, he yelled to the entering ticket holders, "You peckerwoods, I shall return."

20. The officers took Mr. McIntosh to the North Little Rock jail because the Little Rock jail policy prohibited acceptance of prisoners from outside law enforcement officers. He arrived there at 11:36, according to the State Police Radio Log.

21. At the North Little Rock jail, Mr. McIntosh was charged with disorderly conduct, questioned, booked and released on his own recognizance at 1:16 P.M., according to the records of the North Little Rock Police Department. There was no inordinate delay in booking and releasing plaintiff. The short delay was caused by two other individuals being booked ahead of him and the unfamiliarity of the State Police officers with the paper work required by the North Little Rock Police Department.

22. There is no credible evidence that any of the actions by any of the defendants taken against Mr. McIntosh were based upon his race. There were 25-40 blacks in attendance at the luncheon.

23. The actions taken by Mr. Curtis Finch were in his capacity as a private citizen, serving as Chairman of the Frank White Re-Election Campaign Committee.

24. The actions taken by Sergeants Reinold and Phillips, while they were acting in their capacities as officers of the Arkansas State Police, were taken reasonably and in a good faith effort to perform their duties as law enforcement officers.

25. Sergeants Reinold and Phillips arrested Mr. McIntosh because they believed in good faith that he had committed the misdemeanor of disorderly conduct in their presence, both by refusing to leave the premises and by refusing to comply with a lawful order of a law enforcement officer.

26. There is no evidence that any action taken by Sergeants Reinold or Phillips were based upon Mr. McIntosh's race.

27. The Court finds no evidence, either direct or circumstantial, indicating that these police officers conspired with any other person to prevent Mr. McIntosh from attending the luncheon, nor were they told in advance to arrest Mr. McIntosh. From the evidence, it appears that they were warned that Mr. McIntosh would present himself and demand entry for the purpose of disrupting the luncheon, but that they were not to arrest him unless he violated the law.

CONCLUSIONS OF LAW

1. At the close of plaintiff's evidence, the Court dismissed the complaint as to Governor White, State Police Superintendent Tommy Goodwin, and North Little Rock Chief of Police Robert Younts. The plaintiff's proof failed to connect those individuals with this episode in any manner. Governor White did receive communications from the plaintiff, but there is no testimony that he ordered plaintiff's arrest or was present when he was arrested. The Court has jurisdiction of the various causes of action under the statutes alleged, including the First, Fourth, Fifth, Thirteenth and Fourteenth Amendments to the United States Constitution. 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988. The Court has jurisdiction over the common-law claims under its pendent jurisdiction because the two claims derive from a common nucleus of operative facts and the plaintiff would ordinarily be expected to try his claims in one proceeding. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

2. The plaintiff's claims under 42 U.S.C. § 1983 must be based upon proof that the actions of the defendants deprived him of a right secured by the Constitution or laws of the United States, while that defendant was acting under color of state law. Davis v. Paul, 505 F.2d 1180 (6th Cir.), reversed on other grounds 424 U.S. 693 (1974). The statute does not reach purely private conduct. See, e.g., Braden v. Texas A & M University Systems, 636 F.2d 90 (5th Cir.198...