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Fifth Avenue Peace Parade Committee v. L. Patrick Gray 3 RD

decided: June 12, 1973.

THE FIFTH AVENUE PEACE PARADE COMMITTEE, AN UNINCORPORATED ASSOCIATION, ET AL., PLAINTIFFS-APPELLANTS,
v.
L. PATRICK GRAY 3RD, ACTING DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS-APPELLEES



Hays, Mulligan and Oakes, Circuit Judges. Oakes, Circuit Judge (dissenting).

Author: Mulligan

MULLIGAN, Circuit Judge:

This is an appeal by the Fifth Avenue Peace Parade Committee, Deborah D. Weisburd and Robert H. Silk, from a judgment of the United States District Court for the Southern District of New York, entered on February 16, 1972, after a non-jury trial before Hon. Harold R. Tyler, Jr., dismissing their complaint on the merits. Essentially plaintiffs complained that an FBI investigation conducted immediately prior to the November 14-16, 1969 Moratorium Demonstration in Washington, D.C. and the dissemination of the FBI reports of this investigation to various other Government agencies, has and will continue to have a chilling effect upon the exercise of their constitutional rights and further constituted an illegal search and an invasion of privacy. Judge Tyler dictated his findings of fact and conclusions of law into the record at the conclusion of the trial. We affirm.

The Fifth Avenue Peace Parade Committee functioned as an umbrella organization for some one to two hundred anti-war groups in the New York metropolitan area. Its purpose was to organize meetings and demonstrations protesting the American military involvement in Southeast Asia. The Committee publicized its program widely in the press and through the distribution of flyers and leaflets. The work of the Committee was supported by contributions generally in the range of $1 to $10.

The Committee was deeply involved in the preparations for the November, 1969 Moratorium Demonstration in Washington, the purpose of which, as explained by the Committee's Coordinator, Norma Becker, was "to make visible . . . public opposition to the war in Vietnam and to dramatize public desire for withdrawal of American troops from Vietnam." Several hundred "marshals" were recruited and trained to keep the demonstration safe and orderly. To provide transportation to Washington, the Committee hired some six hundred busses and three or four trains, and sold tickets to members of its various affiliated organizations and to the general public. The receipts from the ticket sales were deposited in a special account with the defendant Amalgamated Bank of New York (the "Washington Transportation Fund").

In Washington another "umbrella" organization, the New Mobilization Committee, with which the Fifth Avenue Peace Parade Committee was affiliated, was conferring with Government officials about the logistics for the planned demonstration. The New Mobilization Committee attempted to keep the Government accurately apprised of the number of people expected to participate in the demonstration. It did this by soliciting frequent reports of the number of busses and trains chartered by the various anti-war organizations around the country. As might be expected the preliminary estimates continuously varied and eventually proved somewhat inaccurate.*fn1

The Washington Headquarters of the FBI initiated its own investigation, the purpose of which according to the Special Agent in charge, Philip H. Wilson, was "to know who was coming, how many were coming, mode of transportation, arrival, when they expected to leave Washington, any individuals that had a potential record of violence, or who might threaten the President's life, or a Cabinet member, or anything of that nature." The Bureau's New York office was directed to determine the size, nature and scope of the local Moratorium activities. Special Agent Robert Casper, the coordinator of this local investigation, assigned Agent Constantino to check the Washington Transportation Fund account to get an early estimation of how many buses and trains could possibly be hired by the Committee. On November 6, Constantino visited the defendant Amalgamated Bank and was allowed to inspect the Fund's new account sheet and signature cards and was advised the account's opening balance. Although he did not request it, Constantino was orally given similar information about an account opened by the "Labor Committee to Support Washington Action" whose coordinator, Deborah D. Weisburd, is a named plaintiff in this class action.

Agent Constantino reported orally to his supervisor, Casper, that he had located the account, the amount of money it contained and the names of the individuals listed on the signature cards. The District Judge found that Constantino's information was transmitted to the FBI's Washington Headquarters. Constantino subsequently dictated a report of his findings on November 13; this report was transcribed on an FD-302 form on November 19.*fn2 No agent attempted to examine or to copy any checks deposited in the Washington Transportation Fund's account nor was any attempt made to compile a list of the checks' drawers.

Casper had also assigned Agent Albert Faller to find out the number of busses reserved by the Fifth Avenue Peace Parade Committee and their departure points. Faller's only inquiry was to the Allied Bus Company which gave him this information. On the morning of November 15, some fifty-six agents observed the bus departures, from 57 locations in New York City. Their "surveillance" consisted in counting the busses and the passengers leaving the city. The FBI made no attempt to photograph or to compile a list of the passengers. The information provided by the agents was immediately forwarded to Agent Wilson in Washington. Prior to and during the demonstration, the FBI's Washington office disseminated the information its agents had gathered to various local and Federal governmental agencies in the Washington area.*fn3 The Bureau's New York office maintained a file for all the information it had collected on the Moratorium. In January 1970, a classified 200 page summary of that voluminous file was prepared and subsequently disseminated to various governmental agencies.*fn4

Plaintiffs learned of Agent Constantino's visit to the Amalgamated Bank sometime after the Moratorium Demonstration when an official of the Allied Bus Company, who was attempting to have one of the Committee's checks certified, was told that the FBI had investigated the Washington Transportation Fund account. He relayed this information to the Secretary of the Fifth Avenue Peace Parade Committee and its attorneys. These facts, in turn, were transmitted to various individuals who were involved in the Moratorium activities. On June 22, 1970 plaintiffs commenced this litigation by filing a complaint alleging, upon information and belief, that the FBI had examined and photocopied the bank records of the Washington Transportation Fund as well as checks deposited in that account; had compiled a list of persons who had paid for their transportation tickets by check; had examined and copied the records of the Allied Bus Company and had also learned the departure points of the busses from the New York area and photographed passengers as they boarded the buses. Finally they alleged that the FBI had these data, photocopies and photographs in its possession. By stipulation in the pre-trial order, the parties agreed to try the question of whether the dissemination of the information was justified in view of the purpose of the investigation, and the complaint was deemed so amended. See Fed.R.Civ.P. 15(b). Plaintiffs claimed that these actions by the Bureau (aided and abetted by the Amalgamated Bank) were an invasion of their constitutional right of privacy and constituted an unlawful search and seizure. They further claimed that these "acts . . . has [ sic ] and will restrict and inhibit the Individual Plaintiffs and the members of the Class from the lawful exercise of such rights, has and will place them in fear of repression and retaliatory acts by agencies of the United States Government and has and will intimidate, harass and have a chilling effect upon the Individual Plaintiffs and the members of the Class in the lawful exercise of such rights." Plaintiffs sought both a declaration that the defendants' conduct violated their constitutional rights, and an injunction directing the defendants to surrender or to destroy the data, photocopies and photographs allegedly obtained by the Bureau and enjoining the defendants from using these items "in any manner whatever." Plaintiffs promptly called a press conference to announce the suit and reports of the litigation were contained in the New York Times and eventually in the New York Post. Judge Tyler subsequently granted plaintiffs' motion to allow the suit to proceed as a class action.*fn5 After a five day trial in the middle of January and one day in February, Judge Tyler dismissed the complaint on the merits.

The plaintiffs' position both at trial and on this appeal is that the FBI's investigation was overbroad, unauthorized and illegal and that the dissemination of the information it had collected was unlawful. They further complain, inter alia, that the trial judge improperly refused to let them depose Agent John Malone of the FBI and to inspect either the previously mentioned file compiled by the Bureau's New York office or the classified summary subsequently prepared.

We believe that this case is governed by Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972),*fn6 and accordingly we affirm the judgment below on the ground that plaintiffs failed to present a justiciable controversy. In Tatum, the several plaintiffs, four individuals and nine unincorporated associations, sued on their own behalf and on behalf of all other individuals and organizations who wish to exercise their First Amendment rights "without fear of harassment, intimidation and injury resulting from investigation, surveillance and record keeping by military authority." (Plaintiffs' Complaint para. 5, Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972)). The complaint alleged that the intelligence agencies of the United States Armed Forces were continually engaged in the surveillance of lawful and peaceful civilian activity, that the information collected concerning the plaintiffs served no legitimate military purpose, was widely and indiscriminately disseminated*fn7 and was stored in computerized data banks. It further alleged that a "blacklist" of potential troublemakers had been compiled. The plaintiffs claimed that the defendants' activities inhibited and curtailed their free exercise of First Amendment rights and deprived them of their constitutionally guaranteed right of privacy. Since the Supreme Court was reviewing a motion to dismiss on the pleadings, the allegations of the complaint and of the supporting affidavits had to be accepted as true. Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 172, 87 S. Ct. 1526, 18 L. Ed. 2d 704 (1967); see 5 C. Wright and A. Miller, Federal Practice and Procedure ยง 1363 (1969).

The Court rejected the plaintiffs' claim that the intelligence activities had a "chilling effect" upon the exercise of their First Amendment rights, for they were unable to point to any resulting direct injury or immediate threat of harm. "Allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; 'the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.' United Public Workers v. Mitchell, 330 U.S. 75, 89, [67 S. Ct. 556, 91 L. Ed. 754] (1947)." Laird v. Tatum, supra, 408 U.S. at 13-14, 92 S. Ct. at 2325.

Appellants seek to distinguish Tatum but we are not persuaded that the proffered distinctions do anything more than establish that their case is considerably weaker than that of the plaintiffs in Tatum. Appellants here urge that in Tatum there was a general challenge to an existing system of military surveillance of civilian activities which created a chilling and inhibiting effect on the full expression of First Amendment rights. In the case at hand they claim that the intrusion was specific since it related to particular acts of specific Government agents. We fail to see what solace appellants find in making the distinction. The ongoing and pervasive military surveillance of civilian activity alleged in Tatum would seemingly create a more understandable apprehension of inhibition of First Amendment rights, than the ad hoc response of a ...


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