Shifrin v. Wilson

Decision Date12 May 1976
Docket NumberCiv. A. No. 74-259.
Citation412 F. Supp. 1282
PartiesAvraham SHIFRIN et al., Plaintiffs, v. Jerry WILSON et al., Defendants and Third-Party Plaintiffs, v. Raphael PERL, Third-Party Defendant.
CourtU.S. District Court — District of Columbia





Stephen M. Truitt, Leonard S. Spector, James H. Stark, Washington, D. C., for plaintiffs; Ralph J. Temple, Washington, D. C., of counsel.

C. Francis Murphy, Corp. Counsel, John A. Earnest, Thomas R. Nedrich, Asst. Corp. Counsels, Washington, D. C., for defendants.


CHARLES R. RICHEY, District Judge.

I. Background

The instant action is brought by plaintiffs Avraham Shifrin, a citizen of the State of Israel, and Abraham Bloom, who was, at the time of the filing of the amended complaint in this case, Chairman of the Washington Area Peace Action Coalition and a member of the Executive Committee of the Washington Area Impeachment Coalition. Defendants are the District of Columbia, the Corporation Counsel for the District, certain assistants to the Corporation Counsel, the Chief of Police for the District, and three other members of the Metropolitan Police Department. As more fully explained below, the case is currently before the Court on a variety of cross-motions for summary judgment as to certain defendants and related aspects of the case.

The incident which gave rise to the case at bar took place in the District of Columbia nearly three years ago: plaintiff Shifrin had planned to deliver a public address in front of the Russian Embassy on February 9, 1973, but his presentation was curtailed when members of the Metropolitan Police Department arrested him for violation of Article II, § 3 of the Police Regulations of the District of Columbia, which requires that a permit be obtained from the Chief of Police in order to deliver any speech in a public space in the District. As a result of this incident, plaintiffs Shifrin and Bloom brought this suit seeking: a) a declaration that the regulation in question is unconstitutional, and b) related injunctive relief. Plaintiff Shifrin also seeks money damages for the alleged deprivation by defendants of his first, fourth and fifth amendment rights. Jurisdiction in this case is provided by 28 U.S.C. § 1331(a).1

The essential facts are as follows: On February 9, 1973, at approximately 4:00 p. m., plaintiff Shifrin went to the Soviet Embassy near Sixteenth and M Streets N. W., in the District of Columbia for the purpose of delivering an address to persons assembled in front of the Embassy. Shifrin planned to speak on the topic of the conditions in Soviet prison camps, in several of which he had been incarcerated for ten years. Also present at the Embassy at that time was a detail of officers from the Metropolitan Police Department (MPD) under the command of defendant Captain J. C. Connor. The detail had been dispatched to the scene to monitor the anticipated activities. Before Shifrin began to speak, defendant Connor informed him and his attorney Raphael Perl that Mr. Shifrin could not give a speech without a permit as required by Article II, § 3 of the police regulations.2 Connor handed a copy of the regulation in question to Shifrin and Perl, and further discussion ensued. Shifrin eventually decided to ignore Connor's admonition and attempted to deliver his speech. As a result he was placed under arrest, escorted to a nearby scout car without incident and taken to the Second Police District, where, within about one hour, he was processed and released upon posting of ten dollars collateral. On March 20, 1973, the Office of the Corporation Counsel of the District of Columbia dropped all charges against Shifrin. The next day, March 21, 1973, the Corporation Counsel issued a legal opinion in which Article II, § 3 was found to be too broad to withstand first amendment challenge.

The issuance of the opinion of the Corporation Counsel was the culmination of another series of events which is also important to the case at bar. This chain of events began on December 8, 1971, when, in the case of A Quaker Action Group v. Wilson, C.A. No. 70-2915 (D.D.C.), Judge Gesell held Article VI, §§ 1 and 3 of the police regulations to be unconstitutional. Based on the reasoning in Judge Gesell's opinion, a conclusion was reached among attorneys in the office of the General Counsel of the MPD that the regulation at issue in the instant case (hereinafter, the "speech regulation") was also likely to be held unconstitutional, if challenged. Accordingly, on May 1, 1972, the Deputy General Counsel of the MPD, Kenneth Crosson, requested an opinion from the defendant Corporation Counsel as to the constitutionality of the speech regulation. The request was originally routed to Assistant Corporation Counsel Gilbert Gimble; then, before Gimble had done any work on the request, it was rerouted in September of 1972 to Assistant Corporation Counsel David Eisenberg. The latter did not perform any work on the request until early March, 1973. Upon completing a draft of an opinion shortly thereafter, Eisenberg forwarded the draft to defendant Murphy, the Corporation Counsel, on March 14, 1973. Murphy revised the opinion and issued it, as previously mentioned, on March 21, 1973. On April 10, 1973, defendant Police Chief Jerry Wilson issued an MPD circular instructing all officers that, in accordance with the Corporation Counsel's opinion, the speech regulation was no longer to be enforced.

As mentioned above, both plaintiffs seek declaratory and injunctive relief with respect to the speech regulation, and plaintiff Shifrin also seeks damages for deprivation of his first, fourth and fifth amendment rights. The gravamen of Shifrin's complaint against the MPD officers is that they either knew or had a responsibility to know that the speech regulation was, under a long line of judicial precedent, unconstitutional, and that the arrest of Shifrin pursuant to the regulation was therefore unlawful and a deprivation of his constitutional rights. Shifrin's complaint against defendant Wilson is that he failed to use his powers to prevent enforcement of the regulation while the request for an opinion from the Corporation Counsel was pending, and he likewise failed to expedite the issuance of the opinion, all despite the fact that he knew the regulation was likely to be viewed as unconstitutional by the Corporation Counsel. Shifrin alleges that these failures led directly to his arrest and, therefore, a deprivation of his constitutional rights. Shifrin's complaint against defendant Murphy and members of his office is that their negligence in the conduct of their duties caused an unreasonable delay from the time an opinion on the speech regulation was first requested (May, 1972) until the time that it was issued (March, 1973). That negligence, according to Shifrin, also led directly to a deprivation of his constitutional rights. Finally, Shifrin charges the District of Columbia with direct liability for the alleged deprivation of his constitutional rights because of its failure to properly supervise its employees, and with vicarious liability for the wrongs of its employees.

In the motions currently before the Court, plaintiffs have moved for summary judgment against the District on their claim for declaratory judgment and injunctive relief and for partial summary judgment against defendants Wilson, Murphy, and the District on the issue of the liability of each for the alleged unlawful deprivation of Shifrin's constitutional rights. Defendants have moved for summary judgment in favor of defendants Connor, Wilson, Murphy, and the District. For the reasons which follow, this Court grants declaratory relief, denies injunctive relief, and denies all motions for summary judgment.

II. The Constitutional Issues

The linchpin of plaintiffs' action is their contention that the speech regulation in question is clearly unconstitutional under a long line of Supreme Court authority. Before turning to the merits of that contention, this Court must consider several preliminary matters.

A. There is no necessity for a three-judge court.

Under 28 U.S.C. § 2281, a three-judge court must be convened when a litigant challenges on constitutional grounds and seeks injunctive relief against enforcement of a state statute or an administrative order issued pursuant to such a statute. Under 28 U.S.C. § 2282, a three-judge court is also required for a challenge to an act of Congress on constitutional grounds in which injunctive relief against the enforcement of the act is sought. While none of the parties have requested a three-judge court in this case, in which a speech regulation is challenged on constitutional grounds and an injunction against its enforcement is requested, it is nonetheless the Court's duty to consider whether 28 U.S.C. § 2281 or 28 U.S.C. § 2282 applies, since the three-judge court acts are jurisdictional. McLucas v. DeChamplain, 421 U.S. 21, 28, 95 S.Ct. 1365, 1370, 43 L.Ed.2d 699, 707 (1975).

In order to determine whether a three-judge court is required in the instant case, it is first necessary to determine whether the District of Columbia police regulation at issue was promulgated pursuant to a "state" statute or to an act of Congress. The distinction is important, for, while an administrative order of statewide effect promulgated pursuant to a state statute is subject to 28 U.S.C. § 2281,3 an order promulgated pursuant to an act of Congress is not subject to the three-judge court requirement of 28 U.S.C. § 2282 unless the constitutional challenge to such an order also goes to the validity of the act itself. National Student Association v. Hershey, 134 U.S.App.D.C. 56, 412 F.2d 1103, 1124 n. 56 (1969); Hoffman v. Department of H. U. D., 519 F.2d 1160, 1163-64 (5th Cir. 1975); see generally William Jameson & Co....

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