Raab v. Patacchia

• Decision Date: 04 August 1964
• Docket Number: No. 64-727.,64-727.
• Citation: 232 F. Supp. 71
• Parties: Leon M. RAAB, Plaintiff, v. Dan PATACCHIA, William Botts, Joe Lawless, Robert O. Bailey, Donald E. Olson, Culver City Star News, Eugene L. Mueller, Defendants.
• Court: U.S. District Court — Southern District of California

232 F. Supp. 71

Leon M. RAAB, Plaintiff, v. Dan PATACCHIA, William Botts, Joe Lawless, Robert O. Bailey, Donald E. Olson, Culver City Star News, Eugene L. Mueller, Defendants.

No. 64-727.

United States District Court S. D. California, Central Division.

August 4, 1964.

Burton Marks, Beverly Hills, Cal., for plaintiff.

Lillick, Geary, McHose & Roethke, Los Angeles, Cal., for defendant Culver City Star News.

Donald E. Olson, Culver City, Cal., for defendants Donald E. Olson, Dan Patacchia, Robert O. Bailey and Eugene L. Mueller.

BYRNE, District Judge.

On June 1, 1964, Leon M. Raab, plaintiff, filed a complaint alleging violations of his civil rights 42 U.S.C. § 1983, against various officials of the city of Culver City, California, and against the Culver City Star News. The complaint asked for an injunction and damages.

The facts, stated in a way most favorable to the plaintiff, (as shown by the complaint) are set out in the ensuing paragraphs.

Plaintiff is the president of the Panorama Club, Inc. (Panorama), a corporation with a place of business within Culver City, California. This is a private club not open to the general public. Panorama conducts a game of cards called "Panguingui" for its members. The game is played for money. In short, Panorama is a "private" gambling establishment. When Panorama opened for business it had not bothered to comply with Culver City licensing or zoning ordinances. Furthermore, the operation of such an establishment violated the Culver City anti-gambling ordinance (assuming the ordinance is valid—Culver City Ordinance 523 § 3).

On May 7, 1964, Panorama, apparently feeling that the gambling ordinance would be enforced against it and its members, filed an action in the Superior Court of the State of California in and for the County of Los Angeles Panorama Club, Inc. v. City of Culver City and Eugene L. Mueller, Case No. 838,252. The complaint in that case alleged that the gambling ordinance was preempted by the State of California's gambling statutes Penal Code, §§ 330, 331 and that as a result it was unconstitutional under the California Constitution Art. 11, § 11. Pursuant to this complaint the Superior Court issued a temporary restraining order against Culver City and Mueller. The order restrained them from enforcing Culver City Ordinance 523 § 3 against Panorama pending a hearing on Panorama's motion for a preliminary injunction.

Despite this the Culver City defendants, prompted and encouraged by the Culver City Star News (Defendant News), decided that they would close Panorama, since they considered it execrable. Pursuant to this decision they obtained a warrant for the arrest of plaintiff on the grounds that he was violating the Culver City "licensing and zoning" ordinances and not on grounds that he was violating the gambling ordinance.

The club has a front door which leads to a lobby or reception room only. There is a sign on the front door which indicates that it is a private club open to members only. However, the plaintiff does not say that this door is kept locked, and, I assume, it is not. Another door leads from this reception room to the gaming room. This door is opened by a key card, and even members cannot enter the "private room" until they have signed the registry. It seems that this lobby or reception room is strictly for the purpose of receiving and registering people who are coming to use the "private room". Indeed, considering the great precautions taken with regard to the private room, it is probable that the easy access to the reception room is for the purpose of letting people come in to register for membership or on other non-"private room" business.

At about 4:30 P.M. on the day in question five or six unidentified plainclothes police officers came (or in the complaint's words "rushed") through the door leading from the outside to the reception room of the club. After entering they stated to the club's receptionist: "Stand up, we are police officers, this is a raid." They then ordered him to open the inner door and he complied. The five officers entered the inner room followed by five or six reporters, including a T.V. cameraman, who were in turn followed by some twenty to twenty-five policemen, some of whom were carrying billy clubs. Also, a number of the defendants accompanied the police on this raid. The raid caught about fifty club members, including plaintiff, by surprise. Their "harmless and peaceable social recreation" was thereby interrupted and interfered with. Eleven persons in all were arrested and were taken before the Municipal Court in Culver City where they pleaded not guilty to violations of the zoning and licensing ordinances.

Plaintiff says that the Culver City defendants, incited by slanted editorials in the Defendant News, will use all sorts of stratagems, including undercover agents and arrest warrants, to gain access to the private room of the Panorama Club and interfere with the games being played therein. They will not make any proper demand upon the persons named in the warrants, but will merely conduct illegal raid upon raid. Moreover, the plaintiff states, since there are already cases pending by and against plaintiff and others in the courts of California, it is a violation of equal protection of the laws to keep harassing him and his fellow club members. However, plaintiff does not allege that the zoning or licensing ordinances violate the Constitution of the United States or the California Constitution. Moreover, he does not allege that the gambling ordinance violates the Federal Constitution.

Thus, although plaintiff has not complied with the Culver City zoning and licensing ordinances and although the validity of these ordinances as well as the city gambling ordinance is at issue in cases now pending in the state courts, including prayers for injunctive relief, plaintiff asks this Court to enjoin the defendants from interfering with the privacy of plaintiff and others at their private club and from initiating any further prosecution against them.

All of the defendants, except William Botts and Joe Lawless, filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The moving parties will hereafter be referred to as defendants.

This action is brought under 42 U.S.C. § 1983, which reads as follows:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

It is now well established, at least in this circuit, that the only elements which need to be present in order to establish a claim under this statute are: (1) that the conduct engaged in by the defendants was under color of state law; and (2) that such conduct subjected the plaintiff to the deprivation of rights, privileges, or immunities secured by the Constitution of the United States. Marshall v. Sawyer, 301 F.2d 639 (C.A.9).

Defendants do not claim that their acts were not under color of state law. In fact they could not do so. It is perfectly clear that the police and city officials were acting under color of state law, for any wrongdoing that they are guilty of was made possible by reason of the power vested in them by virtue of state law. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Moreover, although the Defendant News is not a state agency or official it can also be held since it is said that it incited, assisted, and finally participated in the acts alleged to have deprived the plaintiff of his civil rights. See, Baldwin v. Morgan, 251 F.2d 780 (5th Cir. 1958).

That leaves the vital question of whether or not the plaintiff has been deprived of any substantial constitutional rights.

In Monroe v. Pape, supra, the Supreme Court declared that where police officers conducted an unreasonable search and seizure and illegally arrested the plaintiffs they could be held liable under 42 U.S.C. § 1983. Of course, that case presented an outrageous deprivation of the plaintiff's rights. Their home was broken into by thirteen officers in the early morning hours, and was ransacked. The plaintiff parents were required to stand naked in front of their children and the officers. And the plaintiff father was arrested, held on open charges and subsequently released without being charged with any crime whatever. All this was done without an arrest or search warrant.

Since Monroe v. Pape the Court of Appeals for the Ninth Circuit has had many opportunities to interpret the scope of § 1983. It has been generous in its interpretations. In Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962) the plaintiff filed an action alleging various harassments by the police, for the purpose of humiliating and injuring him. He alleged that he was searched in the presence of others without a warrant and not pursuant to a valid arrest, and that he was struck in the private parts by the officers. The court said that this would sustain a cause of action. However, the court found that a count which alleged that plaintiff was searched but did not allege physical injury, lack of authority, or even directly allege humiliation stated no cause of action. And in Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962) the plaintiff was attempting to distribute religious tracts protesting the arrival of Mikoyan in Los Angeles. The police seized him without arresting him, and took the tracts away from him. The court held that he could state a cause of action under the Civil Rights Act, even without alleging that the purpose of the officers was to discriminate against him. Finally, in York v. Story, 324 F.2d...