Vick v. Schiro, Civ. A. No. 68-1206.

• Decision Date: 24 January 1969
• Docket Number: Civ. A. No. 68-1206.
• Citation: 296 F. Supp. 173
• Parties: Kendall L. VICK and Mark A. Young, a Minor, Represented by his Mother and Next Friend, Marjorie Mae Sylvester, Plaintiffs, v. Victor H. SCHIRO, Mayor of the City of New Orleans, Alvin J. Liska, City Attorney for the City of New Orleans, and Joseph I. Giarrusso, Superintendent of Police for the City of New Orleans, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

296 F. Supp. 173

Kendall L. VICK and Mark A. Young, a Minor, Represented by his Mother and Next Friend, Marjorie Mae Sylvester, Plaintiffs, v. Victor H. SCHIRO, Mayor of the City of New Orleans, Alvin J. Liska, City Attorney for the City of New Orleans, and Joseph I. Giarrusso, Superintendent of Police for the City of New Orleans, Defendants.

Civ. A. No. 68-1206.

United States District Court E. D. Louisiana, New Orleans Division.

January 24, 1969.

Benjamin E. Smith, Smith, Scheuermann & Jones, Kendall L. Vick, New Orleans, La., for plaintiffs.

Ernest L. Salatich, Richard Seither, Asst. City Attys., Alvin J. Liska, City Atty., for defendants.

CASSIBRY, District Judge:

This is an allegedly class action brought by the plaintiffs pursuant to Rule 23 of the Federal Rules of Civil Procedure in which they seek declaratory and injunctive relief and damages against certain officials of the City of New Orleans, Louisiana. The plaintiffs have presently pending against them in the Municipal Court of the City of New Orleans prosecutions under various municipal ordinances and they request the court to strike down and enjoin the enforcement of these ordinances and others for alleged vagueness and overbreadth and for invalidity as applied to plaintiffs and others similarly situated.

The plaintiffs are Kendall L. Vick, an attorney, and Mark A. Young, a newspaper vendor, whose arrests by members of the New Orleans Police Department arose out of an incident on June 9, 1968 in that City in Jackson Square, a small one-block park in the Vieux Carre. The defendants are Victor H. Schiro, Alvin J. Liska, and Joseph I. Giarrusso, Mayor, City Attorney, and Superintendent of Police, respectively, for the City of New Orleans.

Plaintiffs allege essentially in their complaint filed on June 19, 1968 that municipal ordinances 828 MCS 49-6 (Obstruction of police)¹ and 42-22 (Disturbance by intoxication or otherwise)² are facially unconstitutional on account of vagueness in violation of the First and Fourteenth Amendments and 828 MCS 46-1 (Permits required for various callings or occasions)³ is unconstitutional as applied for overbreadth because the City of New Orleans purports to encompass within its scope activity which is clearly protected by federal guarantees of free press, free speech, assembly and petition in violation of the First and Fourteenth Amendments, and that all three of these ordinances are susceptible of sweeping and improper application. They charge that the defendants have acted and threaten to continue to act under the color of these ordinances to deprive plaintiffs and the classes they represent (in particular Negroes, persons of poor financial condition, and persons unorthodox in dress and habit) of rights, privileges and immunities secured to them by the Constitution and laws of the United States, and to harass and intimidate them, all in violation of the First and Fourteenth Amendments. They charge also that the defendants under color of these same ordinances have also entered into a plan or conspiracy with other persons to the plaintiffs presently unknown to deprive them of their constitutional rights and to harass and intimidate them, and the mere existence and continued use by defendants of these ordinances create a chilling effect on the exercise of First Amendment rights.

The jurisdiction of this Court is invoked pursuant to Title 28 U.S.C. §§ 1331, 1343, Title 42 U.S.C. §§ 1981, 1983, 1985, 1988 and Title 28 U.S.C. §§ 2201, 2202.

The plaintiffs moved for a temporary restraining order requiring the defendants to stay the prosecutions of the plaintiffs pending a determination of plaintiffs' motion for a preliminary injunction and this was denied. The City Attorney has voluntarily held the prosecutions in abeyance during my determination of plaintiffs' right to injunctive relief and they are presently pending in the Municipal Court of New Orleans.

The defendants filed opposition to the motion for preliminary injunction on the ground that it fails to state a claim upon which relief can be granted and answered the complaint denying that they were acting to deprive plaintiffs of rights secured to them under the Constitution of the United States, or to harass and intimidate them in the exercise of their constitutional rights or that they were conspiring to deprive plaintiffs of their constitutional rights.

On July 10, 1968, the day set for hearing the motion for preliminary injunction, plaintiffs filed an amended complaint alleging that Robert Edward Northcutt, a citizen of the State of California was arrested on July 6, 1968 under circumstances similar to those in the arrest of Mark Young and charged with violating 828 MCS 45-1 (Permit required for peddling),⁴ which charge was subsequently dismissed, and was threatened with future charges for violation of 828 MCS 43-47 (Prohibiting peddlers, bootblacks, etc. in or around squares or parks).⁵ They prayed that these two ordinances be included with those they sought relief from in the original complaint.

The court held a hearing to determine the validity of the charges in the complaint that the defendants' actions under the ordinances were in bad faith for the purpose of discouraging protected activities, and that the arrests had a "chilling effect" on the exercise by plaintiffs of their rights under the First Amendment to the Constitution of the United States. At the hearing the following facts were shown:

On June 9 Mark Young, 19 years old, obtained copies of the newspaper Nola Express from a shop on Decatur Street and proceeded to Jackson Square to sell them and other papers. The Nola Express, a political publication, had been published for about three months. At one time 1500 copies were printed but at the time of the hearing 500 copies were published every two weeks and actually about 400 were being sold. The papers are given to the distributor and the distributor deals with the vendors. Young was selling the paper for fifteen cents, of which he gave ten cents to the distributor and kept five cents for himself.

Young reached the Square and was standing by a tree talking to some friends when two policemen came up and asked for his identification and took his papers to look at them. They asked him if he had a license to sell merchandise and when he answered in the negative they told him a license was required. They advised him that one of the papers, not the Nola Express, contained "bad words" and had a nearby ice cream vendor confirm this to Young.

The two officers went to the patrol car to check on the necessity for a permit when Kendall Vick, who was walking on Chartres Street (one of the streets bounding the Square) with his wife Kathleen, came up to Young and asked to buy the Nola Express. Young told him that the police would not let him sell the paper, and the police told Vick that they could not allow him to sell the paper without a permit. Vick, who is an attorney, informed them that the Constitution "preempts the ordinance" and gave them a lecture on freedom of the press. The officers expressed their resentment to Vick for his intrusion into their investigation of Young and as Vick continued to insist upon his constitutional viewpoint he became so loud that he attracted a crowd of about fifty people.

When Vick would not desist and calm down at the officers' request to do so, the officers called a superior officer to come to assist them. Sergeant Barkley Emmons arrived on Chartres Street and pulled up to where the large crowd had gathered. While the officers were attempting to explain what had happened Vick kept interrupting and yelling in a loud voice, ignoring requests to calm down and telling Emmons that he was an attorney in the employ of a state representative. The sergeant then arrested both Vick and Young, and Vick was charged by affidavit with violation of 42-22, "disturbing the peace by being loud and boisterous" and "by creating a scene," and with violation of 49-6, "interfering with the police," and Young was charged with violation of 46-1, "peddling without a permit."

Almost a month after this incident Robert Northcutt, who lives in Pacifica, California, was arrested outside of Jackson Square for selling newspapers. He sold the Nola Express for fifteen cents, keeping ten cents for himself. According to him New Orleans' police officers told him after he was put into the patrol car that they considered the Nola Express slander against public officials of the city. According to him also, Municipal Judge Bucaro told him not to sell any more of the papers and dismissed his case so that he could report to San Francisco for his preinduction physical examination.

Although the hearing was on the motion for preliminary injunction, the parties argued in court also the propriety of declaratory relief and the case is regarded as submitted on both issues.

INJUNCTIVE RELIEF

No showing has been made in this case which would justify the granting of the equitable relief of injunction against the prosecutions pending in the Municipal Court. The plaintiffs rely upon Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) which requires a federal court to enjoin threatened state prosecution when there is reason to believe that the state's action will have a "chilling effect" upon a citizen's exercise of his rights under the First and Fourteenth Amendments. The Court found under the unusual circumstances of that case that threats to enforce statutes unconstitutional on their face were made in an effort to harass and discourage plaintiffs in the exercise of their First Amendment freedoms.

No comparable special circumstances have been shown in this case. The court finds no basis for the charge that the defendants are acting under the ordinances in furtherance of a plan or scheme to deprive plaintiffs of their constitutional rights, or for the charge that the arrests were made in bad faith to harass and intimidate the plaintiffs....