Whaley v. Cavanagh

• Decision Date: 14 November 1963
• Docket Number: Civ. A. No. 40650.
• Citation: 237 F. Supp. 900
• Parties: Clarence E. WHALEY, Plaintiff, v. Edward CAVANAGH (Badge 1024), and any person who conspired to deprive plaintiff of rights, privileges, and immunities guaranteed by the Constitution, et al., Defendants.
• Court: U.S. District Court — Northern District of California

237 F. Supp. 900

Clarence E. WHALEY, Plaintiff, v. Edward CAVANAGH (Badge 1024), and any person who conspired to deprive plaintiff of rights, privileges, and immunities guaranteed by the Constitution, et al., Defendants.

Civ. A. No. 40650.

United States District Court N. D. California, S. D.

November 14, 1963.

Clarence E. Whaley in pro. per.

Thomas M. O'Connor, City Atty., San Francisco, Cal., George P. Agnost, Deputy City Atty., appearing, for defendants.

WOLLENBERG, District Judge.

Plaintiff, Clarence E. Whaley, brings this action under 42 U.S.C.A. § 1983¹ claiming that defendant, Edward Cavanagh, subjected him to a deprivation of his constitutionally secured right of freedom of speech. The alleged deprivation occurred while plaintiff was standing on a public sidewalk in downtown San Francisco and exhibiting a placard which pointed out certain grievances to people passing by. Defendant, a San Francisco police officer on duty in the area and acting to enforce certain municipal ordinances relating to the obstruction of public sidewalks, dispersed a crowd which had gathered to observe plaintiff's placard and threatened plaintiff with arrest unless he kept moving while displaying the placard. Plaintiff maintains that the length of the material printed on the placard required him to stand in one place in order to effectively communicate his message to the public. He further maintains that defendant's order to keep moving or undergo arrest thereby deprived him of his constitutional right to express his ideas and opinions in a public forum, and caused him to suffer damages in the amount of eight thousand dollars.

Jurisdiction over an action brought under 42 U.S.C.A. § 1983 resides in this court by virtue of 28 U.S. C.A. § 1343,² and is not dependent upon the usual requisites of amount in controversy and diversity of citizenship.³ Plaintiff's complaint states a prima facie claim under the foregoing sections. See York v. Story, 9th Cir., 324 F.2d 450, 1963.

The serious nature of plaintiff's claim is illustrated by the following statement from Justice Stone's concurring opinion in Hague v. C. I. O., 307 U.S. 496, 524, 59 S.Ct. 954, 968, 83 L.Ed. 1423 (1938):

"No more grave and important issue can be brought to this Court than that of freedom of speech and assembly, which the due process clause guarantees to all persons * * *."

It is also true, however, that this freedom is subject to reasonable regulations enacted by a municipality to protect the public interest. A year after the Hague decision the Supreme Court said:

"Municipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets."⁴

The task of this court, therefore, is to equitably balance plaintiff's right of freedom of speech against the duty of San Francisco municipal authorities to prevent interference with the public's use of community sidewalks. Regarding the specific situation which forms the basis of plaintiff's complaint, the court finds that the balance of equities involved weighs heavily in favor of the defendant.

The incident occurred at about 10:30 a. m. on September 14, 1961, while plaintiff was standing on a sidewalk in the 800 block of Market Street, in the heart of San Francisco's downtown business district. Plaintiff was displaying a placard which stated certain grievances against a San Francisco police officer, President Eisenhower, former Governor Earl Warren, and various other public officials. The placard was approximately 30 × 34 inches in size, and the recitation of grievances printed on it exceeded 200 words in length. Passers-by attracted by plaintiff's list of grievances would stop and stand on the sidewalk while they read some or all of the material printed on the placard. Plaintiff answered questions and otherwise orally elaborated on the list of grievances to the crowd which had gathered.

There is some dispute as to just how many persons were standing on the sidewalk at the time of the incident. Plaintiff testified that about 15 persons had gathered, while defendant thought that the number was probably closer to 25 or 30. In any event, the parties did agree that at least two-thirds of the sidewalk was obstructed, and pedestrians had not more than 5 or 6 feet through which they might pass between the back of the crowd and the building line. It is clear that pedestrian traffic was quite heavy (a fact generally true of this area of Market Street at all hours of the business day), and that the movement of pedestrians was seriously hampered by plaintiff's activities. Plaintiff himself testified that some persons were forced to make their way through a recessed store entrance directly to the rear of the crowd. Defendant added that a few persons avoided the crowd by stepping into the street.

It was under the foregoing circumstances that defendant, acting upon his own assessment of the situation after receiving notification from his precinct headquarters that two nearby stores had registered complaints about the disruptive effect of plaintiff's activities, began dispersing the crowd and specifically ordered plaintiff to keep moving while displaying his placard or be subject to arrest. After a short discussion plaintiff obeyed defendant's order and subsequently continued to display his placard while moving on the sidewalk. He was not arrested.

As authority for his actions, defendant relies upon Section 76 of the San Francisco Municipal Traffic Code, Section 157 of the San Francisco Municipal Police Code, and Section 370 of the Penal Code of California. These provisions read as follows:

"SEC. 76. Pedestrians Standing on Sidewalk. In any business district it shall be unlawful for any pedestrian to stand on the sidewalk, except as near as is practicable to the building line or the curb line."

"SEC. 157. Crowds to Disperse on Order of Police Officer. Whenever the free passage of any street or sidewalk shall be obstructed by a crowd, except on occasion of public meeting, the persons composing such crowd shall disperse or move on when directed so to do by any police officer."

"§ 370. Public nuisance defined "Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance." (Emphasis added.)

Plain...