Reed v. Giarrusso, 71-2676.

• Decision Date: 22 August 1972
• Docket Number: No. 71-2676.,71-2676.
• Citation: 462 F.2d 706
• Parties: John W. REED et al., Plaintiffs-Appellants, Grant Cooper et al., Intervenors-Appellants, v. Clarence GIARRUSSO et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

462 F.2d 706 (1972)

John W. REED et al., Plaintiffs-Appellants, Grant Cooper et al., Intervenors-Appellants, v. Clarence GIARRUSSO et al., Defendants-Appellees.

No. 71-2676.

United States Court of Appeals, Fifth Circuit.

June 26, 1972.

Rehearing Denied August 22, 1972.

John W. Reed, pro se; Robert Glass, New Orleans, La., for appellants.

Phillip S. Brooks, Asst. City Atty., New Orleans, La., Charles R. Maloney, New Orleans, La., for defendants-appellees.

Before WISDOM, GOLDBERG, and CLARK, Circuit Judges.

WISDOM, Circuit Judge.

The plaintiffs-appellants challenge the constitutionality of various New Orleans municipal ordinances. Jurisdiction of this Court is based on 28 U.S.C. § 1292(a)(1). The plaintiffs assert the violation of their civil rights under Section 1983. The district court, relying on Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and Boyle v. Landry, 1971, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696, dismissed the suit on the ground that the litigants lacked standing. The allegations of the complaint, accepted as true, bring the plaintiffs within the standing requirements defined in Younger v. Harris. See 401 U.S. at 41-42, 91 S.Ct. 746. The district court failed to separate the question of standing to sue from the question of the right to federal relief. We reverse and remand the cause to the district court for a hearing on the merits.

The bizarre aspect of this case is that one of the plaintiffs, John Reed, appears to have been arrested for talking with a client's witness and others while the witness was being interrogated by a police officer in the corridor of a courthouse. Reed is an attorney employed by the New Orleans Legal Assistance Corporation, a federally funded legal services program. On May 29, 1970, he was in the hallway of the New Orleans Municipal Courts Building waiting for the commencement of a trial. Reed observed Ronald Nunez, a member of the New Orleans Police Department and the charging officer in the impending case against his client, approach a group of five persons, including Reed's client, a witness for Reed's client, and plaintiffs-appellants Jones, Cook, and Cloud. Officer Nunez pulled a plastic bush-comb from Cloud's pocket and began questioning Cloud about the comb. Bush-combs are large combs commonly used by black men and women to groom Afro hairstyles. Reed approached the group and inquired as to the nature of the interrogation. A discussion followed, and Officer Nunez arrested Reed and three members of the group, Jones, Cook, and Cloud. Reed was charged with obstructing a police officer in violation of New Orleans Municipal Ordinance 49-6.¹ Jones, Cook, and Cloud were each charged with carrying a dangerous weapon in violation of New Orleans Municipal Ordinance 67-2.² The "dangerous weapons" were bush-combs. This is not as bizarre as it might seem, in that some of these combs are of metal, the teeth of which might be sharpened, and others are made of a hard plastic which could cause raking wounds. But this is true of many useful toilet accessories, including the not-forgotten hatpin.

On June 23, 1970, while prosecutions against them were pending in New Orleans Municipal Court, Reed, Jones, Cook, and Cloud filed class actions in the United States District Court for the Eastern District of Louisiana, against the Superintendent of Police for the City of New Orleans, the City Attorney for the City of New Orleans, and Officer Nunez. The complaint alleged that the municipal ordinances under which Reed, Jones, Cook, and Cloud were being prosecuted are unconstitutional on their face and as applied.³ They alleged that the arrests were part of a "pattern and practice" of "intimidation, humiliation, harassment and unlawful arrest . . . done in utter bad faith for the purpose of and with the effect of punishing the plaintiffs and members of their class for the exercise of rights secured to them by . . . the Constitution of the United States". The plaintiffs asked for injunctive relief against present and future arrests and prosecutions under the ordinances, declaratory relief, and damages.

During September and October of 1970, the charges against Reed, Jones, Cook, and Cloud in New Orleans Municipal Court were dropped by the City Attorney. The plaintiffs amended their complaint to reflect this fact. In the amended complaint, Reed alleged: "because he . . . is an attorney for the New Orleans Legal Assistance Corporation, his clients are most often poor individuals who are members of the New Orleans black community. He often has occasion to be with, talk with and travel with his clients in the community. . . . Plaintiff Reed, both as an attorney on behalf of his clients, and as a private citizen, intends to continue to peacefully and legally speak to, suggest to and criticize members of the New Orleans Police Department who are acting illegally and/or unconstitutionally in the performance of their official duties". Jones, Cook, and Cloud alleged that "as black citizens of the City of New Orleans, they intend to continue to carry the combs". Thus, all were in "fear of future arrests or threats of arrest, and prosecutions in the New Orleans Municipal Court" under the challenged ordinances.

Meanwhile, on November 19, 1970, intervenor-appellant Grant Cooper, a minor, was arrested while picketing in the plaza in front of the New Orleans Police Administration Building. Cooper was arrested by Officers Weysham and Bethany for carrying a dangerous weapon, a metal pipe eighteen inches in length, in violation of New Orleans Municipal Ordinance 67-2 (see footnote 2), and for disturbing the peace in violation of New Orleans Municipal Ordinance 42-22.⁴

While the prosecutions were pending against him, Cooper filed a motion to intervene in the federal court suit previously filed by Reed, Jones, Cook, and Cloud. The motion was granted on December 16, 1970. Cooper's complaint in intervention also challenged the constitutionality of the New Orleans Municipal Ordinances on their face and as applied. He alleged that the arrests and prosecution under the ordinances were "malicious, without probable cause, in bad faith, and for the purpose and with the effect of, interfering with protected First Amendment activities, and with no ultimate chance of success in prosecution". Cooper asked for injunctive relief, declaratory relief, and damages.

On March 3, 1971, the charges in New Orleans Municipal Court against Cooper were dismissed for failure of Officers Weysham and Bethany to appear as witnesses. On March 26, 1971, Cooper amended his complaint in federal court to reflect this fact. He alleged that he "intends to continue to participate in peaceful demonstrations critical of the New Orleans Police Department, and in other political demonstrations in New Orleans, as he has done in the past. He also intends to carry various inherently innocent objects on his person to these demonstrations, which objects, although not `dangerous weapons' under Louisiana State law, `could be used as . . . dangerous weapons' within the meaning of Municipal Code, Section 67-2." As a result, Cooper alleged that he "fears future arrest, or threat of arrest and prosecution in the New Orleans Municipal Courts, under Sections 42-22 and 67-2 of the New Orleans Municipal Code, for his intended course of future conduct." On the same day, Officers Weysham and Bethany filed new charges⁵ against Cooper under New Orleans Municipal Ordinances 42-22 (see footnote 4) and 67-3.⁶ These charges are presently pending in New Orleans Municipal Court.

The defendants filed a motion to dismiss the federal suit, and, on May 21, 1971, the district court granted the motion and dismissed the suit as to injunctive and declaratory relief. The claims for damages are still pending in the district court.

The district court, citing Younger v. Harris and Boyle v. Landry,⁷ dismissed the suit because the plaintiffs lacked standing to maintain the suit.⁸ We hold that they possess the requisite standing to maintain this suit.

As to Reed, Jones, Cook, and Cloud, prosecutions were pending against them at the time the federal suit was filed. Later, the charges were dropped. We must determine whether, at the time of the hearing below, the plaintiffs possessed the requisite standing. See Younger v. Harris, supra; Zwickler v. Koota, 1967, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444; Golden v. Zwickler, 1969, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113. At that time they had been arrested under the ordinances, and prosecutions had been commenced. Although the prosecutions were dropped, there is nothing in the record to indicate that this was done because the arrests and prosecutions were deviations from the policies and practices of the New Orleans Police Department or because corrective measures had been taken to insure that similar arrests and prosecutions would not occur. In fact, the affidavits submitted to the district court indicate that similar arrests and prosecutions under the ordinances are currently occurring and will occur in the future. The complaint alleging that the plaintiffs will continue to engage in the conduct which led to their arrest and prosecution earlier, when viewed in the context of previous arrests, current arrests, and the future promise of arrests, make reasonable their fear of "future arrest, or threat of arrest, and prosecution". As a result, the plaintiffs, assuming that their allegations are true, as we must for purposes of reviewing a motion to dismiss, have standing to maintain the present suit.

In Younger v. Harris, supra, the Supreme Court held that Dan, Hirsch, and Broslawsky did not have standing to challenge the California statute at issue in that case. The Court said:

Appellee Harris has been indicted, and was actually being prosecuted by California for a violation of its Criminal Syndicalism Act at the time this suit was filed. He thus has an acute, live controversy with the State and its

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