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WASHINGTON FREE COMMUNITY, INC. v. WILSON

August 5, 1971

The WASHINGTON FREE COMMUNITY, INC., et al., Plaintiffs,
v.
Jerry V. WILSON, Chief of Police, District of Columbia Metropolitan Police, et al., Defendants


Corcoran, District Judge.


The opinion of the court was delivered by: CORCORAN

CORCORAN, District Judge.

 Plaintiffs filed their complaint July 11, 1969 seeking declaratory and injunctive relief against John B. Layton, then Chief of the District of Columbia Metropolitan Police Department, Jerry V. Wilson, then Acting Chief and now Chief of the District of Columbia Metropolitan Police Department, and Grant Wright, Chief of the United States Park Police.

 The corporate plaintiff was publisher of the Washington Free Press, an "underground" newspaper sold in the Washington, D.C. area. The individual plaintiffs were officers of the corporation, editors and occasionally street vendors of the paper.

 The complaint alleged that officers of the Metropolitan Police and of the Park Police were harassing the plaintiffs' itinerant salesmen who were peddling the Free Press on the streets of Washington and in various park areas under the jurisdiction of the Department of Interior. Plaintiffs sought a declaration that the activities of the defendants and their agents were an unconstitutional abridgement of their rights to free speech, to free press, and to equal protection of the laws. They also sought to enjoin the defendants and their agents from interfering with the publication, circulation and distribution of the paper.

  On August 4, 1969, this Court denied preliminary injunctions against both the Metropolitan Police and the Park Police holding inter alia that the plaintiffs had not met their burden of showing irreparable injury as required to gain preliminary relief. See Virginia Petroleum Jobbers Ass'n. v. F.P.C., 104 U.S. App. D.C. 106, 259 F.2d 921 (1958). The Court of Appeals affirmed on December 19, 1969. Washington Free Community, Inc. v. Wilson, 138 U.S. App. D.C. 219, 426 F.2d 1213 (1969) (Bazelon, C.J. concurring as to the Metropolitan Police and dissenting as to the Park Police.)

 After numerous delays agreed to by both parties an amended complaint was filed September 22, 1970. By then the Washington Free Press had ceased publication and it was superceded as plaintiff by the Quicksilver Times, another "underground" publication. Other individuals were added as plaintiffs and the action was denominated as a class action. John B. Layton was dropped as a defendant. A claim was made for compensatory and punitive damages, and a declaration of unconstitutionality was sought for 36 C.F.R. § 50.24 *fn1" under which the Park Police were acting.

 After further agreed delays the Court bifurcated the proceedings as to the activities of the Metropolitan Police and the Park Police. The Court heard testimony and took evidence for two days as to the allegations against the Metropolitan Police and later heard argument on cross motions for summary judgment as to the Park Police issue. The Court then took the case under advisement.

 A. Concerning the Metropolitan Police

 Either by affidavit or by live testimony the plaintiffs presented approximately 20 instances of confrontation between newspaper vendors and Metropolitan Police officers. These confrontations involved "move-on cases," warnings by the police officers that a license was required to peddle newspapers, or claims by the police officers that papers could not be sold from a "fixed location."

 In every instance where plaintiffs' witnesses were able to recall the name or the badge number of the policeman involved, that policeman was called by the defendants and directly contradicted the testimony of plaintiffs' witness. Further, police department records indicate that in no instance testified to was a complaint ever made against an individual policeman or a request for disciplinary action filed or a civil lawsuit begun. Standing alone such contradictory testimony would require the Court to decide the issue on credibility.

 However, in June of 1971, and prior to the hearing mentioned above, at the prodding of the American Civil Liberties Union the Corporation Counsel's office issued to Chief Wilson and the Metropolitan Police Department a new interpretation of 47 D.C. Code § 2336 (Supp. IV 1971). It was this section of the code police officers had been relying upon when they informed plaintiffs vendors that they needed a license to sell papers or had to "move on."

 Section 2336 reads in pertinent part:

 
"No person shall sell any article of merchandise or anything whatever, excepting newspapers sold at large and not from a fixed location, upon the public streets, or from public space in the District of Columbia without a ...

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