*1 al., Plaintiffs, et Robert BAKER BINDNER, E.
William Chief of Police of Louisville, al., et Defendants. A.
Civ. No. 5648.
United States District Court D.W.
Louisville Division.
Oct. *2 allegedly de- class; enforcement by signed defendants forth and carried purpose specific resultant and
with the peace- plaintiffs’ suppressing effect of alleged dis- protest against racial able rental and in the sale crimination Louisville, city Ken- housing in the tucky. jurisdiction of the
Plaintiffs assert Title 28 U.S.C. §§ arises under the Court 2202; Title 42 1343(3), (4), 1985; and and C. §§ Amendments Fourteenth the First and United States. to the Constitution for proper causе Further, that this ais pur- 3-Judge by court determination 2281, 2284. to 28 U.S.C. suant §§ opin- burdening unduly Without day day the by ion with a recitation occurrences, say, it to evidence suffice hear- developed factual at extensive an generally ing discloses before this Court early spring that, beginning in the Tucker, Lunder- Charles J. Neville M. continuing thereaft- for months 1967 and III, man, Taylor, Jr., Louis- T. Danial er, participat- the initiated and Zarr, Melvyn Ky., Greenberg, ville, Jack (some- or marches ed in series of walks Stavis, Dennis City, York Mortоn New “demonstrations”), all called times J., Roberts, Newark, M. J. N. William Louisville, city Ken- the and about City, Kunstler, Kinoy, New York Arthur designed bring attention tucky, to the to plaintiffs. for community the officials and Eugene Sawyer, Alvey, E. Robert H. P. plain- city the the the conditions which Atty. Gen., Matthews, Commonwealth them, unacceptable tiffs deemed Frankfort, Ky., Leonard J. alleged the sale is, discrimination Miller, Walker, Jr., Ralph H. Lo- Scott housing subsequent and rental and gan, Louisville, Ky., for defendants. pas- secure failure their еfforts to sage housing Helm, Hickey, open ordinance be- Joseph of an Louis- B. James represent- ville, Ky., fore the Board of Aldermen. for Amicus Curiae— Union. American Civil Liberties following commencement Soon plaintiffs’ activities, and individuals OPINION organization, least one other dedicated GORDON, Judge. quo District JAMES F. the maintenance the status began housing picture, and rental by plaintiffs, individually and locations likewise assemble representation, bring this action class against antiсipated “demonstrations” of individually defendants, and plaintiffs, heckle and taunt and and Commonwealth Louisville housing open persons advocates. These Kentucky officials, the thrust known as became the “hecklers”. complaint and amended i.e., being edged nature, police, doubled Entered then the to stand as declaratory judgment groups to the con- relief as a buffer between these diverse stitutionality city ordinances, prevent of certain in an tatiоn, confron- effort actual state statutes straining a circuit re- court which was feared enforce- hand, order on the one and ment result dis- officers would injunctive against relief enforce- result- turbance disorder. Arrests ed, primarily plaintiffs’ ment of such made from the group, part, dictated the violation of when either protective necessity fore- statutes herein under attack and reasonable Further, stall confrontation were hereinafter dealt with. аs the then such groups passion fanned, fires of made from both individuals these law controversy; (some enforcement officials or were made in of the de- herein) plaintiffs, fendants those instances when obtained from The *3 support Judge Sternberg, of their of non- Honorable belief their Marvin principle, by County the Jefferson violent invited arrest the Circuit Court (also defendant), police; only restraining a named after reason- a were made (here police rеquests attack), order able also under were refused. the ef- enjoin fect of which order to was the Accordingly, we feel that the plaintiffs from their demonstration ac- plaintiffs by proof have failed the tivities, except designated times, and allegation support police, their that the only after advance police notice to the faced with the choice constitu between place of the assembly, and further guarantees tional аnd actual control of limiting plaintiffs the number of in each they (the populus, police) sup the chose “demonstrating” group, requiring and rights pression of constitutional rather specification plaintiffs’ of the route of than other avenues of control. We find anticipated by march. Subsequently, no unconstitutional use of an otherwise stipulation, Judge Sternberg’s order was Very frankly, constitutional we statute. somewhat relaxed as to its restrictions. as a Court are at a loss determine police done, what the could have From all the evidence heard this undone, circumstances, left under the Court following reaches the factual con- plaintiffs with which would have found clusions. We do not find the activities no fault. plaintiffs and their class to be judg- that, apparent it Thus core”, “hard and like token we do not Court, plaintiffs, in all of this the ment find the guilty defendants to have been legiti- practicality, have no and fairness of selective enforcement the laws could in this mate situation against plaintiffs frighten so as to of the ordinances we but find all proof coerce them. The establishes affecting of ex- freedom and statutes pattern no of selective arrest aimed ligitation pression consti- this against the per- all other do as This we unable to tutional. are sons. The activity enforcement in these vague certain of and over- we find them circumstances appear does not to us to applica- broad, possible sweeping and of have been halting dedicated to a tion. demonstrations, but separa- rather to a stated, do Though, we as heretofore tion of the adversaries pro- and to the to have not find the defendants herein tection of all concerned, including the the statutes and used unconstitutional general so public. In this connection for might be in a manner which instance, only gas time the tear was deliberately supрress con- termed used police it was not used rights stitutional against the plaintiffs, but class; and ordi- such statutes spectators “hecklers” and the who had nances, being readily susceptible of such assembled to taunt them. Further, we use, opinion, should, in our be struck refer the fact slight one unconstitutional. down as proof reference in the was there a breath evidence, statute, Any and it of no at unconstitutional substantial consequence, discourtesy regulate part tempting Amendment First police, nothing invoked, rights, has was been offered approaching charge police here, anticipation brutality of fu in reasonable or their use of invoked, unreasonable against^ force. will An ture events examination does, itself, society, the instances of in and of member when arrests were suppression reflects of constitutional our satis- result faction that were, e., “chilling such rights, Accord- effect”. i. most hold- 682), the statute down and struck tо invoke unable ingly, find ourselves sweep- susceptible “plainly ing to be urged us doctrine abstention Supra application”. improper take defendants, therefore by the ra- apply the same au- under case jurisdiction here issue tionale to statute Pfis- Dombrowski thority expressed in As 432.020 unconstitutional. 1116, hold KRS ter, U.S. Button, 371 said in N.A.A.C.P. was (1965), wherein L.Ed.2d 328, 338, 415, 432, 433, 83 S.Ct. U.S. said: Court (1963): L.Ed.2d doctrine abstention hold the “We permissible statu- “For standards such inappropriate for cases vagueness the area tоry are strict Douglas v. where, unlike present one * * * expression. of free 157, 63 S. Jeannette, [319 freedoms Because First Amendment 1324,] statutes Ct. *4 survive, gov- breathing space to need as face on their justifiably attacked may regulate in the area ernment ap as expression, or abridging free specificity.” with narrow discouraging purpose of plied for D.C., Allen, protected activities.” Also see Carmichael v. Nichols, F.Supp. (1966); v. Ware grant therefore We D.C., (1967). F.Supp. 564 declaratory judgment relief directing to our attention Next ordi constitutionally defective to the 437.110(1), Kentucky Revised Statutes dis hereinafter and statutes nances which we hold unconstitutional. judicial of them notice We take cussed. banding togeth- Conspiracy; they 437.110 forth § set content purpose. er for (not being unlawful denied answer). (1) persons No shall two more togeth- confederate or band themselves Kentucky Turning Revised first to go purpose of in- er and forth for the 432.020, fol- рrovides as Statute disturbing timidating, alarming, in- lows: taking any juring any person, or of Syndicalism. 432.020 Criminal person charged public offense with a Any person commits, aids custody from the view lawful with violence, any crime, physical counsels inflicting punishment him or of on intimidation, property, destruction of preventing prosecution, his
terrorism or other
act or
doing any
unlawful
felonious act.
accomplish any political
to
end
method
This
makes
a crime
two
statute
it
bring
political
or to
about
revolution
together
go
persons
or more
to
forth
penitentiary
shall be confined in the
“disturbing
purpose
for the
another”
twenty-one years,
for not more than
person.
applica-
It
in its
is not limited
or fined not more than ten thousand
bility
part
conduct on the
violent
dollars, or both.
appears
em-
offender.
It
written
expression
and is
bracive of terms
It can be seen from
fore
being
susceptible of
include such
read to
going
it
that would be a criminal offense
assembly.
peaceable
functions as
person
for a
to “counsel” an unlawful
Supreme
held that one
Court has
,end.
accomplish
political
method to
speech
function of
is
invite
freedom
Keyishian
In
Regents,
Board of
v.
dispute,
saying:
589,
675,
U.S.
87 S.Ct.
proscription:
property
(livelihood) cannot be
status
rights
citizenship.
the measure of the
open
of re-
wide
the standard
“leaves
sponsibility.
involves calculations
It
Vagrancy”
hold
436.520
“KRS
boiling point
particular
as to
of a
vagueness
be unconstitutional because of
* * *
person
appraisal of
an
not
and overbreadth. Lanzetta v. State
per
the nature of the
se.”
contents
Jersey,
New
306 U.S.
(1939).
Carolina,
83 L.Ed.
does
Also see Edwards v. South
notice;
аrbitrary
fair
as to
its
L.Ed.2d 697
grossly susceptible
(1963);
standards and
Allen, Supra.
Carmichael
guar-
overreaching federal constitutional
Turning
to a consideration
now
by lending
ready
antees
itself for
use
Statutes 436.520
Revised
officials
those
to merit
deemed
which reads as follows:
displeasure.
their
Alabama,
Thornhill
State of
Vagrancy.
436.520
§
88, 97-98,
being
(1) Any person guilty
L.Ed. 1093
*5
vagrant shall,
offense,
for the first
now
those
consider
imprisoned
be fined ten
or
for
dollars
City
of Louisville here under attack
days,
thirty
or both. For the second
by
held
us to be unconstitutional under
subsequent offense,
and each
he shall
the standards of the
hereinafter
law as
imprisoned
sixty days.
for
expressed.
(2) “Vagrant,”
used in
subsection
Parading
City
of Louisville
(1) of this section and KRS 436.530
a Permit
Without
Ordinance 321.01:
means:
Parades,
for
321.01 Permits
As-
§
(a) Any
person
able-bodied male
who
semblages, Processions.
habitually
or
loiters
about
rambles
any person
shall
for
be unlawful
support himself,
without means to
any
participate
in
proces-
to conduct or
occupation
who has no
at which to
assemblage, parade
street
or
livelihood;
earn an honest
or
sion,
procession,
other than
funeral
(b) Any
person
able-bodied male
with-
any
permit
except upon a
street
support
out visible means of
ha-
who
Safety. Ap-
Director of
issued
bitually
engage
fails to
in
labor
honest
plication
permits
for
shall be
such
support
support
for
own
or
his
for the
in
form
the Director
such
one;
family,
of his
if he has
or
Safety
prescribe
than
shall
less
(c) Any idle and dissolute able-bod-
12 hours before the time intended
person
purposely
ied male
who
deserts
assemblage, parade
procession.
or
such
children, leaving any
his
or
wife
permit
accompanying
or an order
Such
them without suitable subsistence or
gather-
designate
places
it shall
subsistence;
suitable means of
or
dispersal
ing or
formation and of
(d) Any
person
assemblages,
proces-
pаrades
able-bodied
without
such
or
support
sions,
visible means of
habit-
route of
or trav-
march
ually
work,
el,
refuses to
portions
and who habit-
the streets or
ually
loiters on
occupied
the streets or
be used or
streets
places
any city.
therein, and the time and duration
spe-
assemblage,
This
parade
proces-
statute is a “catch all” not
of such
or
expression
cific
really
sion;
provided, however,
per-
to what it
that no
Mr-
Justice
Frankfurter
L.Ed.
Winters
at
аt
Likewise we Disorderly tional Conduct Louisville 525.01(a) Loitering and Related Of- § reading 507.02 follows: Ordinance fenses. Disorderly 507.02 § Conduct. any person It shall be unlawful for engagе following acts: person No himself in conduct shall disorderly City. manner Loitering. Any person, without (a) support, unable *6 means of visible parties agree All that there no is of him- satisfactory give account a “disorderly definition of term con- the strolling in, loitering or self, found duct” the in the ordinance but defend- alley, street, any or upon about, or ants contend that this defect is cured place, public or way or other in that “the common man is familiar assembly, gathering any public оr at application”. with the its term and store, shop any or or or around in They vagueness further contend that the establishment, or commercial business of this is the con- ordinance cured place, property or any private or or on Kentucky Ap- struction of the peals City Court Marshall, loiters, loafs, or frequents or who of Pineville v. occupant of or is the or around idles Ky. 1072 at where- S.W. fame, ill any or house establishment disorderly in that court narrowed conduсt establishment, gambling establish- to “words and acts which tend to disturb liquor intoxicating is' sold ment where peace endanger morals, safety the the conducting license, him- or is a without community, or health of the or of a class lewd, lascivious in a wanton self persons family”. do not We be- speech or behavior. manner lieve this overcomes the constitutional recognize Though for such an ordi- defect an ordinance that was struck we expressed has type down as аbove unconstitutional in Carmichael the nance of supra, constitutional, Allen, Hicks which said ordinance been held be Columbia, there A.2d 154 was more resistant to attack than District the in one such ques- (D.C.Ct.App.1964), that Louisville ordinance here Ricks, tion, D.C. for it case, read: of Columbia District
“Disorderly
the district
App.,
Conduct.
shall be un-
A.2d
wherein
It
any person
judge
unconstitu-
lawful
the
in a
was
to act
felt
ordinance
vio-
upon
lent,
turbulent,
upheld it
quarrelsome,
tional, he
boist-
nevertheless
“give
good
ground
one
a
of him-
that
his burden
account
it was
ground
circuit
on the
court of
self”
that
it failed to
do so
the circuit
his
since
overbreadth,
past
to be
court
the statute
meet
test
had
held
constitutional,
putting
question
ex-
that
ele-
we
recent
therein
those
believe
specified by
pressions
as to what
Court
ments
us above
really
good
fact
is
account
United
are indicative
embraced
States
instance,
time,
squarely presented
Louis-
and what
рlaced
that
if
with
limits
Loitering,
525.01(a),
ville Ordinance
it.
un-
be
it to
same would
declared
be
Though
re-
hold that the statutes
we
constitutional.
ordinance would
This
upon by
plaintiffs
lied
basis
punish
person
pub-
“loiters” in a
who
of action
are ex-
their cause
herein
place
lic
and is
a satis-
unable
ceptions to
and that
28 U.S.C.
§
factory account of himself.
do not
accordingly injunctive
available,
is
relief
it
believe
can
consistent with
stand
that,
we believe and
as to the
assumе
Birmingham,
City of
Shuttlesworth v.
ordinances, the
void statutes and
Com-
87, 90,
City
monwealth of
Offi-
appears
To us it
overbroad
any
will
cials
withhold
enforcement ac-
vague.
We do not believe
that
against
tion
those
now
requirement
“give
that an offender
charged
judg-
thereunder
final
until a
satisfactory
passes
account of himself”
ment is
Should
rendered in'this matter.
places
constitutional
tests.
de-
sole
appealed
case
this
affirmed
be
or be
not
po-
termination in the
discretion
appeal,
charges
we assume that
liceman on the
beat.
standard
for violation of these
statutes and
void
“satisfactory
certain,
account”
all
may
satisfactory
for what
be
to one members of their class will be dismissed.
unsatisfactory
another,
toAs
the Parade Permit Ordinance
meaning
“satisfactory”
of the word
321.01 herein
unconsti
declared void as
susceptible
itself
is not
standard
tutional,
no
time make
in
this
exactness.
will
kind
we
What
of “satisfac-
junctive
tory” Legal
prohibiting
order
future en
its
?
or moral satisfaction What
?
grant
forcement but
to the
will
the time limit to be embraced within
(60)
sixty
days
giving
period
Louisville a
satisfactory
of “a
account”
during
fit,
may,
it
which
if
sees
that
time
will excuse the offender in the sole
enact such an ordinance in lieu thereof
police
discretion of the
officer
de-
requirements.
as meets
satisfactory
constitutional
mands
A
account at
it?v
Though
recognize
pro
satisfactory
instant or a
account
delay,
past activity?
nouncement of
has the
ef
past activity,
If of
*7
allowing
guilt
operation
is
fect
proof?
not
without
Does
the
satisfactory
fact
unconstitutional Parade Permit Ordi
mere
that one cannot
a
time,
period
might
nance for a limited
account of himself to the
pleasure
totally
unusual,
seem
is not
novel
inquiring
of the
officer make
guilty
public
when
him
in
unspecified
dictated
interest.
of an
crime?
Allen, supra. Likewise,
Carmichael
Such
v.
unbridled disсretion cannot be con-
Education, etc.,
Board
349
stitutionally
Brown
policeman
vested in the
294,
753,
75
L.Ed. 1083
99
the court. Such overbreadth was voided
(1955),
Supreme
Court de
wherein
Territory
Anduha,
of Hawaii v.
48
layed
integration judg
the effect of its
(9 Cir.,
F.2d
1931),
173
under a
public
ment
interest to allow
regulation
punished persons
orderly
plans
submission of
gration
for an
inte
habitually loafed,
loitered and idled
public
school facilities.
In
public places.
cases, injunc
reapportionment
certain
D.C.,
stayed
public
Margeson,
In
tioni have been
in
United States point
allowing
F.Supp.
(1966),
259
terest even
of
the court
to the
requir-
unconstitutionally
ficials to be
voided a
elected
state criminal statute
support racial
age
protests
and
these
Drum v. Sea
apportioned districts. See
housing in Louisville.”
(1965),
discrimination
af
D.C.,
F.Supp.
well,
They
was
there
establish that
failed to
1237, 16
831, 86 S.Ct.
firmed 383 U.S.
otherwise
use
an
an unconstitutional
(1967);
v. Clem
Baker
L.Ed.2d
or ordinance
constitutional
judges
statute
D.C.,
sit
еnt,
F.Supp.
“these
to establish that
failed
ting, M.D.Tenn.
prosecutions
had and continue
have
therefor,
having
Motion
been
right
chilling
upon civil
have
advocacy
effect
defendant
to the
this
as
action
dismiss
Kentucky.”
Louisville,
Not
individually
Judge
Sternberg,
Marvin
prevail
fail
did the
Judge
Circuit
Jefferson
as
of the
issues,
af-
evidence
all
firmatively
but the
Court,
upon the
also
to its attack
as
the activi-
established that
restraining
constitutionality
order
enforcement of-
ties
the defendant law
аuthority
per
said court
issued
impartiality,
ficials
conducted with
City Birmingham, 388 U.S.
Walker v.
solely
commendable
with
restraint and
L.Ed.2d
87 S.Ct.
maintaining
law
interest
the motion of Ed-
The Court sustains
and order.
Sehroering, Jr.,
this
A.
to dismiss
win
distin-
all these factors that
action
to him.
guishes
case from
Dombrowski
208.020(3),
Kentucky Revised Statute
Court cautions in
Contributing
Delinquency
aof
to the
“
**
*
case
federal
with
interference
Minor,
is held
to be constitutional.
us
good-faith
of its
State’s
administration
expressly
dealt
All other motions
peculiarly
criminal
inconsistent
laws
with
overruled.
with our federal
There-
framework.”
fore, the fact that these statutes and or-
CELEBREZZE,
Judge,
Circuit
Sixth
may
subject
under attack
dinances
be
Circuit, concurs.
serious constitutional infirmities should
permit
not of itself
interference
federal
BROOKS,
Judge,
District
dissents.
good-faith
with a state’s
administration
OPINION
DISSENTING
Surely
of its criminal laws.
Dombrow-
requiring
ski is
mandate
not a
the fed-
Judge
(dissent-
BROOKS, District
courts,
jurisdiction exists,
eral
pass upon
when
ing).
constitutionality
of all the
as,
respectfully
I
dissent
under
criminal
laws
a state that
case,
circumstances
I cannot read
of this
subject
challenge.
Hand,
Wells v.
Pfister,
Dombrowski 380 U.S.
F.Supp.
(M.D.Ga.1965),
affirmed
(1965)
Reynolds,
sub nom Wells v.
compelling the
abandonment
doc-
(1965);
federal See v. Bowling Green, 368 S.W.2d (1963 Ky.); City Louis- v. Goodwin
ville,
(1948);
Ky. 11,
City Harrodsburg Ry. Co. v. Southern Ky. 10, 128 S.W.2d (1939). years
Over the Court has
consistently followed doctrine of ab
stention in attacks state Har laws. N.A.A.C.P., 167, rison v. 360 U.S. 1025, (1959); S.Ct. Creasy,
Martin
219,
v.
360 U.S.
79 S.Ct.
1034,
(1959); Shipman
City
Jeannette,
319 U.S.
(1943);
L.Ed. 1324
Chicago
Dairies,
Inc.,
v. Fielderest
follow it here. TAYLOR, Plaintiff,
Jonie R. TOOLS, INC., al.,
FISHING et Defendants.
No. 7763.
United States District Court Louisiana, E. D.
New Orleans Division.
Oct.