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April 11, 1967

Horace L. DUNCOMBE, Plaintiff,
STATE OF NEW YORK, Louis Ratner, Sheriff of Sullivan County, New York, Robert Williams, District Attorney of Sullivan County, New York, Abraham Kleinman, Police Justice of Village of Liberty, New York, Defendants

The opinion of the court was delivered by: BRYAN

BRYAN, District Judge:

 In this action Horace Duncombe seeks a judgment declaring Section 1425 (16-d) of the New York Penal Law, Consol. Laws, c. 40, relating to desecration of the American Flag, *fn1" void on federal constitutional grounds and a temporary and permanent injunction restraining the respective defendants - the State of New York, the Sheriff and the District Attorney of Sullivan County and the Police Justice of the Village of Liberty - from enforcing that statute. He asks for the designation of a three-judge court under 28 U.S.C. §§ 2281 and 2284 to hear his application.

 At the time this action was commenced Duncombe had been convicted of an alleged violation of § 1425 by the Police Justice of Liberty, had been sentenced to thirty days in the County Jail and had been fined or penalized $50. He had commenced serving his sentence when this suit was started on March 21, 1967. Two days later, however, he was released on bail pending appeal in the state courts.

 The action is alleged to arise under the First, Fifth, Ninth and Fourteenth Amendments to the Constitution, 28 U.S.C. § 1343(3) and the Civil Rights Act, 42 U.S.C. § 1983. Duncombe has moved before me in the motion part of the District Court for the designation of a three-judge court pursuant to 28 U.S.C. § 2284, and for preliminary injunctive relief. *fn2"

 The facts on which this application is based, as contained in the papers submitted in support of the application, are not denied and are as follows: Duncombe, a Negro, an honorably discharged veteran and a resident of the State of New York, has been recently employed by the Tony Kastner Ski School in the Village of Liberty, Sullivan County. On March 7 of this year, accompanied by friends, he lunched at Corey's Restaurant in Liberty. According to Duncombe, during the course of the meal the conversation turned to Vietnam and patriotism in general; when discussion became heated he went outside to his automobile and "in an attempt to display [his] patriotism" *fn3" brought back an American flag which he had purchased in Mexico. The flag had been made into a poncho or serape with a slit in the center so that the wearer could drape the material over his shoulders. Duncombe put on the garment and reentered the restaurant; the meal and the conversation continued. There was no disturbance and no one took exception to his attire.

 On March 15, defendant Kleinman, the Police Justice of Liberty, issued a warrant for plaintiff's arrest on an information charging him with the crime of "causing [sic] contempt by act upon the flag of the United States of America" *fn4" in violation of § 1425. The warrant was based upon the affidavits of three local citizens who merely stated in substance that they had seen Duncombe in Corey's Restaurant on March 7 while he was wearing a garment fashioned out of the American flag.

 Duncombe was arrested the same day, and brought before Police Justice Kleinman where, in the presence of the complainants and the police officers, he was persuaded to plead guilty to the information. He was immediately sentenced to sixty days in the County Jail, or alternatively, to thirty days and a fine or penalty of $50. *fn5" Plaintiff paid his find and was incarcerated within the hour.

 On March 17 Duncombe, having by then retained counsel, by order to show cause before Police Justice Kleinman sought a writ of coram nobis vacating his conviction and sentence on the ground, among others, that his plea was obtained in violation of state and federal constitutional rights. The Police Justice summarily denied the application in all respects. Though he had not filed any notice of appeal, plaintiff's counsel then made an informal bail application which was denied by the Police Justice on the ground that no appeal had been taken; an application for bail was immediately made to Supreme Court Justice Kane who denied the requested relief for the same reasons.

 The scene then shifted to this court where plaintiff's attorneys commenced this action attacking the constitutionality of § 1425 (16-d). The complaint, no doubt drawn with an eye towards Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), describes generally the events leading to the incarceration of Duncombe, and alleges that he "was tricked and coerced into pleading guilty"; it is further alleged that the New York Statute is unconstitutional for a number of reasons and that it "chills and restricts free speech." Included also is an allegation that "defendant District Attorney of Sullivan County, Robert Williams, continues to prosecute the plaintiff herein under the aforesaid unconstitutional statute." The complaint contains general allegations of irreparable injury "unless defendants are restrained from enforcing the provisions of the State statute involved, that is to say, unless the defendants are restrained from continuing to confine plaintiff" because "plaintiff will be forced to serve his entire illegal sentence pending the determination of this action."

 On March 23, following the suggestions made in my memorandum denying temporary relief, Duncombe's attorneys resorted to the available state remedies. As might have been anticipated, on proper application after a notice of appeal was filed, State Supreme Court Justice Cook granted bail in the amount of $500 "pending appeal from the order made by Police Justice Abraham Kleinman on March 17, 1967 denying defendant's petition for writ of coram nobis and the judgment of conviction of March 15, 1967." The present motion for designation of a three-judge court and for a preliminary injunction must be considered in light of this unusual background.

 Duncombe takes the position that my power as the single judge to whom this application is initially addressed is confined to determining whether the complaint raises a substantial federal constitutional claim. If I find that it does, so the argument runs, I am required to certify to the Chief Judge of the Circuit that a three-judge court ought to be convened. The Attorney General does not seem to question this position but urges that the underlying constitutional issues raised here are insubstantial by reason of the decision in Halter v. State of Nebraska, 205 U.S. 34, 27 S. Ct. 419, 51 L. Ed. 696 (1907), which upheld state legislation not dissimilar to that under attack here.

 If decision turned on the submission of the parties, I would not hesitate to put into motion the three-judge court machinery. I adhere to the view expressed in my memorandum of March 22 - that the substantive constitutional issues are not insubstantial. This view can scarcely be altered by Halter which was decided several years before the protections of the First Amendment were held to be firmly applicable to the states through the Fourteenth Amendment. *fn6" Moreover, the argument that the statute is unconstitutional for vagueness - which is one of Duncombe's major contentions - was notably absent in the Halter case.

 In my view, however, the parties have misconceived the function of the single district judge to whom an application to convene a three-judge court is initially presented. The multiplication of proceedings under 28 U.S.C. §§ 2281 and 2284, not a few occasioned by the decision in Dombrowski v. Pfister, supra, see Cameron v. Johnson, 381 U.S. 741, 742, 752-754, 85 S. Ct. 1751, 14 L. Ed. 2d 715 (1965) (Black, J., dissenting), has highlighted the "important responsibility" placed upon the single district judge under the three-judge court statutory provisions. Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129 (2d Cir. 1967) (Friendly, J.). The district judge to whom such application is initially made must determine not only whether the constitutional question raised is not insubstantial but also whether a basis is set forth for invoking the traditional equity jurisdiction of the federal courts. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962) (per curiam); Note, The Three-Judge District Court: Scope and Procedure Under Section 2281, 77 Harv.L.Rev. 299, 309, 317 (1963); cf. Natural Gas Pipeline Co. v. Slattery, 302 U.S. 300, 310-311, 58 S. Ct. 199, 82 L. Ed. 276 (1937); Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, & n. 7 (2d Cir. 1967) (dictum); Allegheny Airlines v. Fowler, 261 F. Supp. 508 (S.D.N.Y.1966). Thus a single district judge may dismiss for failure to show irreparable injury, Linehan v. Waterfront Comm. of New York Harbor, 116 F. Supp. 401 (S.D.N.Y.1953) (Weinfeld, J.), Priceman v. Dewey, 81 F. Supp. 557, 559 (S.D.N.Y.1949), or to pursue available adequate remedies under state law. Davis v. State of Maryland, 248 F. Supp. 951 (D.Md.1965); Rosso v. Puerto Rico, 226 F. Supp. 688 (D.P.R.1964). Dismissal may perhaps also be justified where abstention by the district court pending litigation in the state courts would facilitate resolution of difficult federal questions or obviate the necessity for deciding them. Note, supra, 77 Harv.L.Rev. at 309. But see Idlewild Bon Voyage Liquor Corp. v. Rohan, 289 F.2d 426, 429 (2d Cir. 1961).

 Thus an initial issue for decision here is whether plaintiff has shown any threatened irreparable injury to federal rights to warrant invoking the ...

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