BARNETT v. D'ARTOIS

DAWKINS, Chief Judge.

OPINION

PRELIMINARY STATEMENT

Our jurisdiction in this action rests upon 28 U.S.C. § 1343(3). Plaintiffs, under Rule 23 F.R.Civ.P., bring this as a class action1 under the Civil Rights Act (42 U.S.C. § 1983) to temporarily restrain and preliminarily and permanently enjoin defendants from interfering with the peaceful use of public parks of Shreveport.

Additionally, declaratory relief (28 U.S.C. § 2201) is sought, holding that Ordinance No. 73 of the City of Shreveport is unconstitutional both on its face and as applied in violation of rights guaranteed by the First and Fourteenth Amendments to the United States Constitution.2

After two amendments to the complaint, permitted by Rule 15(a) and (b), F.R.Civ.P., the present posture of plaintiff's complaint further requests that defendant D'Artois be required to return all photographs and identifications of members of plaintiffs' class taken on June 2, 1971, at Columbia Park in Shreveport.

FINDINGS OF FACT

Alarmed by the ever increasing traffic in heroin, marijuana, and other dangerous drugs (LSD) in Shreveport, the Mayor (Honorable L. Calhoun Allen) and Commissioner of Public Safety (Honorable George D'Artois), together with narcotics officers and Louisiana Police undercover agents, met to discuss means of interdicting this criminal activity.

After several weeks spent with plaintiffs' group, Officers Fussell and Warrington participated in "making" approximately 30 drug cases: a case is made by actually purchasing illegal drugs from a pusher. Their assiduous efforts may have netted more of the people involved in Shreveport's illicit drug traffic, but information revealed that the confidences they painstakingly acquired soon were to be lost. Alerted that their agents' cover was in danger, police officials decided to request warrants and execute them at Columbia Park, a local City Park where the majority of cases of drug transfers had occurred. Thirty-eight warrants were prepared, some being for "John Does" and "Jane Does" because of difficulty in obtaining names without the undercover men creating suspicion.3

June 2, police officers converged on Columbia Park (a rather small recreation area) and sealed off avenues of escape.4 Sexton testified: "We anticipated there would be forty or fifty in the park and get those people and get a picture and get their names and get out. We anticipated we would get fictitious names of people we wanted. I believe there were two people in the Park that we had warrants for that were arrested later on and we were assisted by pictures." (Tr. 249.) This planned raid, with warrants issued on probable cause, soon turned into a police round-up. The males were pat-frisked, everyone was photographed, and, then, detained in the pavilion for approximately two hours. Some motorists and pedestrians passing Columbia Park on Columbia Street were stopped and the long-hairs among them were directed to the pavilion where they were photographed and identification was requested. Tom Metcalf was typical of the group which was not in the Park originally. On his way to work, at the Sound City recording studio, long-haired Metcalf circled Columbia Park to see if any of his friends were there: "As I turned on to Columbia, there was another car ahead of me and a police officer was staying in the middle of the road and the car ahead of me was passed and he flagged me over to the side and asked me to step out of the car and frisked me and asked me if I would walk over to the pavilion. He led me up to the hill where another patrolman took me to the pavilion and searched me again and asked me to stand in line to took my picture." (Tr. 93.)5

George D'Artois, Commissioner of Public Safety, and one of the undercover agents were present at all times during the detention of the young people in the Park and those brought from the street. The photographs and identifications of those people who were not prosecuted are locked in the files of the Division of Special Investigation of the Shreveport Police Department.

Sunday, June 6, was advertised by pamphlets distributed by the "hippie" community and an underground newspaper as a day on which a rally would be held in Betty Virginia Park to peacefully and silently protest the treatment received by the young people a few days before.6

Unaware of any restrictions on use of the City's parks, approximately 100 "hippies" congregated. Despite at first remaining in small groups and causing little concern to anyone, the City officials demanded that the group disperse only a short while after they had gathered at the Park. When so instructed by the Mayor and the Commissioner of Public Safety, the group first sat down, then left once Mrs. Elizabeth Clay promised to obtain a temporary restraining order which would enable them to "return the following Sunday to the Park without fear of being harrassed by the police." (Tr. 41.)

A temporary restraining order could not legally be obtained from this Court in time and the efforts of plaintiffs' attorney to get a permit from the Director of Parks and Recreation, Fred McGaha, were unproductive; he refused "because the request asked for a group meeting where political activities and political discussions would be made and the use of band instruments that would, in my opinion, upset the other people that were in the Park." The authority upon which this decision was made and to which the Mayor and Commissioner later adverted is Shreveport City Ordinance No. 73.7

Plaintiffs undaunted by lack of a permit, the unconventionally attired, long-haired group returned to Betty Virginia Park June 13; and, desiring to appear to be as innocuous as possible, at first kept to themselves in small groups and warned away drug abusers by printed "No Holding" placards.8 After two hours of frisbee-throwing and rapping in peaceful assembly, the police again on the instructions of Allen and D'Artois, noting that they were congregating in sizeable groups, and beginning to set up loud "rock band" instruments, ordered the group, along with a few family picnickers, to disband and vacate the Park. This evacuation was ordered after a short-lived fight drew a small crowd of spectators. Reliable intelligence information had been obtained that "outsiders" and arms were to be brought in. D'Artois' experience had convinced him that the situation was "explosive" and, after conferring with Allen, the order to leave was issued. We find these defendants, misled by their intelligence information, misgauged the effect of this flare-up; more importantly, the order also was bottomed on their thought that the rally was an illegal use of the Park. (Tr. 88.)

After Betty Virginia Park was cleared on the 13th, some of those present marched to Columbia Park where they were denied entrance and then proceeded to Gilbert Park which they found closed to them also. Assuming D'Artois' assessment of the events which transpired on June 13 was accurate and the situation indeed was explosive, this does not excuse closing the Park to the "hippies" on June 6. As noted, the June 13 order was based in large measure upon Ordinance 73.

CONCLUSIONS OF LAW

The delicate interests involved and the pressing nature of the issues have convinced us that a decision should be rendered as soon as possible. There has been no time for either side to submit post-hearing briefs, and, because of this, we have undertaken an extensive in-depth review of the pertinent authorities.

We find plaintiffs' requests for restraining orders and injunctions have been rendered moot by the testimony of D'Artois and Allen:

Hippies have been permitted to return to the parks and will not be harassed in their use of them. We in no way hereby curtail the laudable efforts of police agents who, in enforcing constitutional laws, viz., narcotic laws, have arrested alleged drug pushers and abusers on reliable information of undercover agents or informants. These efforts when constitutionally carried out assist society in protecting itself and in protecting naive young people against themselves; but, when unconstitutionally done, is of no help to that worthy goal because prosecution may not be maintained and law enforcement receives a "black eye." We do not question for one moment the worthy motives of Shreveport's officials, and, indeed, urge them to press even harder to combat the drug menace, which has been growing, not only locally, but nation-wide, in recent years, almost by leaps and bounds.

At this point the case diverges into two distinct issues: the facial constitutionality vel non of the City ordinance and unconstitutionality of the arrests, searches and seizures, at Columbia Park.

Unconstitutionality of the Ordinance

A single District Judge, not a three-Judge panel, must determine the constitutionality of a City ordinance. Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967). The plaintiffs allege that two legislative expressions are opposed to one another:

The First Amendment has been made applicable to the States through the Fourteenth Amendment. E. g., Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). There is no allegation that this ordinance has been applied discriminatorily nor could there be in light of the testimony of McGaha,9 and the action of the police in evicting everyone at the Park on June 6 and 13. The Code section (Sec. 24-60) is not vague.10 However, the Ordinance is facially invalid for within its umbrage any political speech and any assembly for political activity is absolutely forbidden.

Though the First Amendment is broad and explicit in its scope, it is noted that the right of free speech and peaceable assembly is one of many rights guaranteed by the Constitution and accordingly must be interpreted so as not to infringe upon other rights equally secured by the Constitution.

Freedom of speech and assembly are not absolute rights, especially where their exercise infringes upon the rights of others. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), was a germinal case which attempted to balance public order with personal rights.11 Justice Goldberg writing for a majority of the Court:

The Supreme Court has not hesitated to uphold a statute in face of constitutional attack for overbreadth where it warranted such approval. In Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1967), the Court refused to strike down a statute which the appellants argued was void for overbreadth because, as in Cox, the statute did not prohibit picketing "unless engaged in a manner which obstructs or unreasonably interferes with ingress or egress to or from the courthouse." (At p. 617, 88 S.Ct. at p. 1339.) See also, Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953); LeFlore v. Robinson, 434 F.2d 933 (5th Cir. 1970); Hunter v. Allen, 422 F.2d 1158 (5th Cir. 1970) reh. den. and reh. en banc den.; Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969) reh. den. October 3, 1969 (Blackmun, J.: "We agree with those courts which have held that a school has inherent authority to maintain order and to discipline students."); Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5th Cir. 1966).

Impermissible overbreadth in New York's education law caused the Supreme Court to strike down part of that statute in Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1966).12 Justice Brennan said:

We quote at length a recent decision of the Supreme Court, Coates, et al. v. City of Cincinnati, 402 U.S. 611, 614-616, 91 S.Ct. 1686, 1688-1689, 29 L.Ed. 2d 214 (1971), holding a city ordinance facially violative of the constitutional right of free assembly and association.13 Mr. Justice Stewart observed:

Similarly, Section 24-71 of Ordinance 73 of the City's Code is facially unconstitutional since it leaves in the unfettered discretion of the park officials the decision to grant or deny permits. The effect of this section is to empower a single official to refuse access to the city's parks on his mere whim or caprice. No objective standards are established and clearly this violates the Constitution. See, e. g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968); Resistance v. Commissioners of Fairmount Park, City of Philadelphia, 298 F.Supp. 961 (1969).

The Ordinance in question announces no standards and absolutely prohibits any constitutional activity in the City's parks. As the Supreme Court has pointed out, even though there may be a legitimate and substantial governmental interest, that interest may not be pursued by means that broadly stifle fundamental personal liberties when the end may be more narrowly achieved. Consequently, we hold that the Ordinance is facially unconstitutional; but this view in no way restricts the City's power to regulate, under adequate and objective standards, the conduct of anyone in the park who might engage in drug abuse or who by unruly action causes other citizens to forego the pleasures of our City's parks or interrupts the peace of those living nearby. We have dealt at some length with this Ordinance: we are deeply aware of the delicate balance which must be struck between the parties' interests, and we entertain no naive notion of the motives which impelled plaintiffs to stage their two Betty Virginia protest rallies, on June 6 and June 13. Notwithstanding, a reasonable exercise of First Amendment rights will be protected by this Court. However, those rights will not be allowed to serve as a screen for the distinctive odor of marijuana or for any other illegitimate activity which properly may be restricted by the authorities.14

Unconstitutionality of the Arrests, Searches, and Seizures

The Fourth Amendment expressly declares "the right of the people to be secure in their persons * * * against unreasonable searches and seizures." This constitutional right to be free from unreasonable interference by police officers is incontrovertible and has been made fully applicable to the States, under the Fourteenth Amendment, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961). It is admitted by defendants that police activity in Columbia Park on June 2 resulted in a mass arrest of 80 to 100 young people, mostly long-hairs and "freaks."15

Only six people among the crowd gathered there were arrested pursuant to warrants which had been obtained for probable cause. Where arrests are made without a warrant, the requirements as to the sufficiency of the information before the officer may act are surely not less stringent than where an arrest warrant is obtained. The fundamental requirement of probable cause turns upon whether the facts and circumstances were sufficient to warrant a prudent man in thinking that the arrestee had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). As the Supreme Court indicated in Sibron v. State of N. Y., 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), policemen who search citizens must have constitutionally adequate, reasonable grounds for doing so. The self-protective search for weapons must be based on particular facts from which an officer reasonably could infer that the person being searched was armed and dangerous. Clearly the facts surrounding the Columbia Park "raid" could not provide the police probable cause to arrest those for whom they had no warrants; although in light of the reliable intelligence information possessed by them, the facts were such that a self-protective pat-frisk could be constitutionally tolerated. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967).16 The record is wholly devoid of any justification for the warrantless arrests of any of the young people in Columbia Park except the six for whom warrants were held. The situation particularly was aggravated by the fact that one of the undercover agents was present when the raid occurred and was available for positive identification of any whose descriptions were on the John Doe or Jane Doe warrants. The searches and seizures of those arrested pursuant to lawful warrants were valid under the Constitution. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).