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BISHOP v. GOLDEN

August 7, 1969

Hattie BISHOP, Sweet Georgia Brown, Leslie Campbell, Esther Collins, Edgar Morris, Fred Perry, Elaine Rooke, Albert Vann and C. Herbert Oliver, Plaintiffs,
v.
Elliot GOLDEN, individually and as Acting District Attorney, Kings County, State of New York, Defendant



The opinion of the court was delivered by: JUDD

MEMORANDUM AND ORDER

 JUDD, District Judge.

 Defendant, formerly Acting District Attorney of Kings County, has moved for summary judgment to dismiss an action which seeks to enjoin the prosecution of indictments under state statutes and to recover damages from him for instituting such actions.

 The plaintiffs were involved in the well-publicized events of the fall of 1968 surrounding the Ocean-Hill-Brownsville School District in Brooklyn. All but Rev. C. Herbert Oliver have been indicted under New York Penal Law, McKinney's Consol.Laws, c. 40, § 195.05 entitled "Obstructing Governmental Administration," and three of the plaintiffs were further charged with violation of Penal Law § 135.60 entitled "Coercion in the second degree." Plaintiff Oliver sues as an individual and as Chairman of the Governing Board of the Ocean-Hill-Brownsville School District.

 The plaintiffs seek an injunction against the enforcement of these sections of the Penal Law; a declaratory judgment that the statutes are void on their face or as applied; and damages in the amount of $50,000 each.

 The prayers for injunction and for declaratory relief are related to such an extent that they are best discussed together. Plaintiffs assert that a three-judge court must be convened to consider the case. The need for such a court depends on the strength of their first two prayers.

 Plaintiffs' first burden in seeking an injunction against the prosecution of a criminal case is to overcome the statutory bar against federal courts enjoining proceedings in state courts. The rule is set forth in 28 U.S.C. § 2283:

 
"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

 Plaintiffs rely on Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), to argue that where the exercise of First Amendment rights is jeopardized, there should be no hesitancy on the part of a federal court to intervene. In that case, officers of a group active in civil rights work in Louisiana were threatened with prosecution under that state's "Subversive Activities and Communist Control Law" and "Communist Propaganda Control Law." They sought declaratory relief and an injunction under the Civil Rights Act, 42 U.S.C. § 1983. A three-judge court was convened and dismissed the complaint. The Supreme Court, in reversing, emphasized that it was dealing with "a statute regulating expression," which had "an overbroad sweep" and which threatened "loss or substantial impairment" of First Amendment rights. 380 U.S. at 486, 85 S. Ct. 1116. Under such circumstances, it held that the mere threat of prosecution, under such a statute, regardless of "the improbability of successful prosecution" (p. 487, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22), may result in a "chilling effect upon the exercise of First Amendment rights * * *." The effect of 28 U.S.C. § 2283 did not have to be faced in Dombrowski. The arrest warrants against two of the plaintiffs had already been quashed by the state court, and at the time the action was brought there was no pending prosecution. Dombrowski was therefore an application of the rule that Section 2283 does not forbid an injunction before a state prosecution has been commenced. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).

 Plaintiffs here challenge the validity of two sections of the New York Penal Law, which are part of a completely revised statute coming into effect on September 1, 1967.

 
"§ 135.60 Coercion in the second degree
 
"A person is guilty of coercion in the second degree when he compels or induces a person to engage in conduct which the latter has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will:
 
"1. Cause physical injury to a person; ...

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