UNIVERSITY COMMITTEE TO END WAR IN VIET NAM v. Gunn

• Decision Date: 31 May 1968
• Docket Number: Civ. A. No. 67-63-W.
• Citation: UNIVERSITY COMMITTEE TO END WAR IN VIET NAM v. Gunn, 289 F.Supp. 469 (W.D. Tex. 1968)
• Parties: UNIVERSITY COMMITTEE TO END the WAR IN VIET NAM, James M. Damon, John E. Morby and Zigmunt W. Smigaj, Jr., v. Lester GUNN, Sheriff of Bell County, Texas; A. M. Turland, Justice of the Peace, Bell County, Texas, Precinct No. 4; John T. Cox, County Attorney, Bell County, Texas.
• Court: U.S. District Court — Western District of Texas

289 F. Supp. 469

UNIVERSITY COMMITTEE TO END the WAR IN VIET NAM, James M. Damon, John E. Morby and Zigmunt W. Smigaj, Jr., v.Lester GUNN, Sheriff of Bell County, Texas; A. M. Turland, Justice of the Peace, Bell County, Texas, Precinct No. 4; John T. Cox, CountyAttorney, Bell County, Texas.

Civ. A. No. 67-63-W.

United States District Court W. D. Texas, Waco Division.

April 10, 1968.

On Motion for New Trial May 31, 1968.

Sam Houston Clinton, Jr., Austin, Tex., for plaintiffs.

Howard Fender, Asst. Atty. Gen. of Texas, Austin, Tex., for defendants.

Before THORNBERRY, Circuit Judge, SPEARS, Chief Judge and ROBERTS, District Judge.

PER CURIAM:

The University Committee to End the War in Viet Nam is an un-incorporated voluntary association composed of young men and women who are residents of Austin, Texas, and its environs.The purpose of the University Committee is to protest the conduct of the war in Viet Nam by means of discussions, publications, demonstrations, and non-violent direct action, in an attempt to bring the war in Viet Nam to a quick non-military end.The individual plaintiffs include both members of the University Committee and persons sympathetic to its purposes who participate in its affairs.The defendants are duly elected officials of Bell County, Texas.

During Monday, December 11, 1967, and the morning of Tuesday, December 12, 1967, various news media in the Central Texas area reported that The President of the United States was to appear and speak at a dedicatory program at Central Texas College.Central Texas College is situated near Killeen, Bell County, Texas.Killeen is a city of some 30,000 population and serves nearby Fort Hood, a large United States military establishment, reported to be the largest United States armored post.Fort Hood has a population of about 35,000 soldiers and an equal number of civilian dependents.From Fort Hood military members of armed units of the United States Army are transferred to Viet Nam and from Viet Nam many veterans of military service there are transferred to Fort Hood.The President of the United States was also scheduled to make an inspection of Fort Hood on December 12, 1967.Accompanying the President and his official party on the occasion of his appearance at Central Texas College was the usual corps of so-called White House press correspondents, and other representatives of the news media including television commentators and cameramen.Some 25,000 military personnel, their dependents, and civilians from in and around the central Texas area were assembled to hear the President of the United States and other speakers on the dedicatory program.

The evidence indicates that the members of the University Committee learned of the President's scheduled appearance on the morning of December 12, about three hours before the program was to begin.As many Committee members and interested parties as possible were notified, and several carloads of persons desiring to attend the President's speech drove to Killeen.The President had begun speaking when the group, which included the individual plaintiffs, arrived at the turnoff to the college.They parked the car some distance from the speaking area at the college.After choosing placards and signs, the group began walking in the direction of the college.The first people that the group met were friendly, waving and taking pictures of the group with their signs.They then came upon the main speaking grounds which were filled with soldiers in uniform and civilians.¹

The group soon was surrounded by soldiers, some friendly, some hostile.Several of the group were attacked by soldiers, who snatched away the placards and physically struck several persons in the group.At that point, several military police seized members of the group and carried them out of the crowd.They were taken to sheriff's deputies.After being handcuffed and frisked, three were taken to the Killeen, Bell County Jail.Apparently there was some disagreement as to whether the incident had occurred on property lying in Coryell County or on property within Bell County.When the decision was reached that the incident was within the jurisdiction of the Bell County authorities, complaints were filed against the three men, charging the offense of disturbing the peace.Although the maximum punishment under the Texas "Disturbing the Peace"statute, Vernon'sAnn.Tex.Pen.Code, Art. 474(1952) is a fine of $200., the Bell County Justice of the Peace set bail for each of the men at $500.

This suit, seeking interlocutory and permanent injunctions and a declaratory judgment, was filed on December 21, 1967.Subsequently, on February 13, 1968, the criminal charges in Bell County were dismissed, on the County Attorney's motion; the reason recited for the dismissal was that the alleged offenses had occurred on a federal enclave, to which criminal jurisdiction had been ceded by the State of Texas.

I

The dismissal of the criminal charges in Bell County caused the defendants in the present action to move this Court to dismiss this action for lack of jurisdiction.Defendants contend that the case is now moot for the reason that "no useful purpose could now be served by the granting of an injunction to prevent the prosecution of these suits because same no longer exists."It appears, in other words, that defendants' motion to dismiss is addressed to that part of the plaintiffs' complaint which seeks an injunction against the prosecution of the criminal charges in Bell County.We are clear that that part of plaintiffs' prayer is no longer before us.But we cannot fail to understand that, just as in Dombrowski v. Pfister, 380 U.S. 479, 483-492, 85 S.Ct. 1116, 14 L. Ed.2d 22(1965)andZwickler v. Koota, 389 U.S. 241, 253-254, 88 S.Ct. 391, 19 L.Ed.2d 444(1967), more is involved where the prayer for relief also requests a declaratory judgment that the statute under which the criminal charges were brought is unconstitutional on its face for being overly broad.The dispositive question at this point then is whether the additional prayer defeats the defendants' argument that this Court is presently without jurisdiction to determine the merits of the case.

Any discussion of plaintiffs' standing in this regard must begin with a consideration of Dombrowski v. Pfister, supra.In that casethe appellants brought suit for injunctive and declaratory relief to restrain the prosecution or threatening of prosecution under Louisiana's Subversive Activities law, which they alleged violated their rights of free expression.A three-judge court dismissed the complaint, holding that there was involved a proper case for abstention pending possible future narrowing of the statestatute by state courts.The Supreme Court reversed, holding the abstention doctrine (i. e. waiting for a state court to clarify the statestatute) inapplicable.The following language bears on our determination:

When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical.For in such cases, the statutes lend themselves too readily to denial of those rights.The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases.* * * For `the threat of sanctions may deter * * * almost as potently as the actual application of sanctions.* * *' Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights.* * For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.* * * We have fashioned this exception to the usual rules governing standing * * * because of the `* * * danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.'(Emphasis added.)

380 U.S. at 486-487, 85 S.Ct. at 1120-1121.The Court then drew its conclusion, containing the now famous metaphor: "The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure."380 U.S. at 487, 85 S. Ct. at 1121.Indeed the Court went even further: "So long as the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one.Even the prospect of ultimate failure of such prosecutions by no means dispels their chilling effect on protected expression."380 U.S. at 494, 85 S.Ct. at 1125.

The same kind of notion had been voiced earlier by the Fifth Circuit in Baldwin v. Morgan, 251 F.2d 780(5th Cir.1958).There a group of Negroes had brought a class action for injunction and declaratory relief against compulsory segregation in railroad waiting rooms.State charges had been filed against the Negroes but were dismissed because only the offending railroad or bus line could be criminally punished under the law.The Fifth Circuit held that the fact that criminal charges had been dismissed as against these particular plaintiffs did not bar the federal action:

When the criminal proceeding was closed, it did not automatically take with it the charge made in this cause that state agencies, pretending to act for the state and exerting the power of their respective offices were, under the threat of arrest or other means, depriving Negroes of the right to be free of discrimination in railway public waiting rooms on account of race or color.

251 F.2d at 787.

More recently, in Carmichael v. Allen, 267 F.Supp. 985(N.D.Ga.1967), a three-judge court had occasion to consider the mootness contention.Among other charges against the appellant was one charging...