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March 30, 1973

Lawrence R. BILICK et al., Plaintiffs,
Hon. Edward R. DUDLEY, Administrative Judge of the Criminal Court of the City of New York, et al., Defendants

Griesa, District Judge.

The opinion of the court was delivered by: GRIESA

GRIESA, District Judge.

This is an action on behalf of 86 young men and women arrested on November 5, 1966 by a group of New York City policemen at a social and political gathering sponsored by the City College of New York chapter of the W.E.B. DuBois Club. This organization was active in opposing the American involvement in the Vietnam War, and urging the abolition of the draft. At the time of the incident in question the DuBois Club was campaigning in New York City in support of the Civilian Complaint Review Board for the Police Department. The question of whether to retain or abolish this board was to be voted on in a city referendum November 8, 1966.

 Plaintiffs claim that they were arrested without any legitimate cause; and that the purpose of the arrests was to disrupt DuBois Club political activities -- particularly those in support of the Civilian Review Board. Plaintiffs urge that the arrests violated their constitutional rights under the First, Fourth and Fourteenth Amendments. Suit is brought under the Constitution and various federal statutes, particularly Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, *fn1" against the four policemen who carried out the arrest, the police Captain of the precinct where plaintiffs' arrests were processed, the Police Commissioner of the City of New York, the District Attorney of New York County, the Administrative Judge of the Criminal Court of New York City, and the Chief Clerk of that court.

 Plaintiffs seek a declaration that their arrests were without probable cause in violation of plaintiffs' constitutional rights. Plaintiffs also seek an injunction directing defendants to expunge all records of the arrests and prohibiting defendants from providing information regarding the arrests to law enforcement agencies, prospective employers, and others.

 The case was tried before the Court without a jury. This decision constitutes the Court's findings of fact and conclusions of law.


 The DuBois Club Party

 The gathering at which the arrests were made took place at an apartment on West 92nd Street, New York City. A party sponsored by the DuBois Club was being held there on the evening of November 5, 1966, which had both a social and a political purpose. A small admission fee (99 cents) was charged. There were refreshments consisting of soft drinks and light snacks. There was guitar playing, singing, and some dancing to a record player. It was intended, had not the arrests intervened, to have speeches and a discussion of intensive campaigning in favor of the Civilian Review Board in the remaining few days before the referendum.

 The persons at the party were in the range of 16-25 years of age. The majority were high school and college students.

 There is no evidence that liquor or beer was used at the party. The only evidence that anyone at the party was using narcotics related to possible use by one teen-age girl who was in a room with one or two other girls separated from the main group.

 The arrests which gave rise to the present lawsuit occurred around midnight. The evidence of plaintiffs and defendants is in conflict in some respects regarding the events leading to the arrests.

 Plaintiffs' Testimony Regarding Arrests

 Six of the plaintiffs testified in some degree of detail about these events. According to this testimony, about 11:30 P.M. three men came to the door of the apartment and made their way into the apartment. They were markedly older and different in appearance than those attending the party. They refused to pay the 99 cents admission charge. A number of the people at the party crowded around them and asked who they were and what they were doing.

 Five of the six plaintiffs who testified on the subject stated categorically that the three men refused to identify themselves in any way. The sixth of these plaintiffs testified that he recalls that the men said they were police officers, but refused to show any badges, or warrants, or other police identification. These six plaintiffs were unanimous in testifying that the three men gave no explanation of their purpose in entering the apartment.

 The plaintiffs' evidence is that the DuBois Club members who were in charge of the party feared that the presence of the three men might cause trouble. They wanted to get the men out of the apartment. The three men were told to get out. In addition, a group of about ten of the young men at the party pushed the strangers out the apartment door. At this point one or more of the three men called out that the people at the party were under arrest.

 About one half hour later a group of uniformed New York City police arrived. All 87 persons at the party were arrested and taken to the 24th Precinct station on West 100th Street. They were kept at that station until about 3:00 A.M., November 6th, when they were taken to cells in the Criminal Court building at 100 Centre Street.

 Eighty-six of the arrested persons were charged with congregating for the purpose of using narcotics, in violation of Section 1533 of the New York Penal Law, which makes such an offense a misdemeanor. *fn2" They were also charged with disorderly conduct in violation of Section 722(5) of the Penal Law. Disorderly conduct is an "offense" although it is not a "crime" since it is neither a misdemeanor nor a felony. *fn3"

 One of the girls at the party was arraigned in Children's Court on a charge of possession of narcotics. The charge was dismissed and the record sealed. No claim is now being made in this action with respect to her.

 At about 3:00 P.M., November 6th, the 86 were taken before Justice Joseph A. Martinis of the Criminal Court of the City of New York. The Assistant District Attorney in charge of the matter immediately moved to dismiss the charges against all 86 on the ground of lack of evidence to prove any offenses. The motion was granted.

 Police Testimony Regarding Arrests

 Two of the police officers -- Detectives Daniel Keogh and John T. Farrell -- testified. According to their testimony, on the evening of November 5th, they were working with two other officers -- Detectives Stines and Moynihan -- on a liquor investigation. They were approached by a Dr. Ackerman, who said that his son and the son's girlfriend had been missing for about 24 hours. This man directed the four policemen to the apartment on West 92nd Street, which was the scene of the party described above.

 According to the police testimony, the four policemen (all in plain clothes) and Dr. Ackerman arrived at the party, where one or more of the policemen identified themselves and showed police badges. They introduced Dr. Ackerman and said that he was looking for his son. Detectives Farrell and Keogh walked around the apartment with Dr. Ackerman, and Detectives Stines and Moynihan remained in the foyer by the apartment door. Dr. Ackerman did not find his ...

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