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July 25, 1973

William THISTLETHWAITE and Sol Lockshon, Plaintiffs,
The CITY OF NEW YORK et al., Defendants

Pollack, District Judge.

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

This suit is brought pursuant to the Civil Rights Statute, 42 U.S.C. § 1983, and jurisdiction is conferred over such a suit by 28 U.S.C. §§ 1331 and 1343. The plaintiffs claim that restrictions imposed upon pamphleteering in the parks of New York City represent an abridgement of free speech and are violative of the First Amendment. The attack herein is levelled against Section 13 of the rules promulgated by the City's Department of Parks named herein as defendant.

 The defendants have moved to dismiss the complaint, on the grounds that no live case or controversy exists; that principles of res judicata preclude this suit; and, that the complaint fails to state a claim upon which relief may be granted.

 For the reasons given hereafter the complaint must be dismissed on the ground that it is barred by a former adjudication of a criminal proceeding involving a violation of the same rule by these plaintiffs resulting in a conviction for unlicensed pamphleteering in the parks.

 I. Prior Proceedings

 On or about June 27, 1970, plaintiff Thistlethwaite was arrested and charged with violation of Section 13, which provides:

No person shall hold any meeting, perform any ceremony, make an address, exhibit or distribute any sign, placard, declaration or appeal of any description in any park or park-street, except by permit from Parks, Recreation and Cultural Affairs Administration. Upon application, the Administration shall issue such permit unless: (1) the use for which the permit is sought would substantially interfere with park use and enjoyment by the public; (2) the location selected is not suitable because of special landscaping and planting; (3) the location is not suitable because it is a specialized area including, but not limited to, a zoo, swimming pool, or skating rink; (4) the date and time requested have previously been allotted by permit. Whenever a permit is denied, alternative suitable locations and dates shall be offered to the applicant.

 Plaintiff Lockshon was arrested and charged with the same violation on or about April 17, 1971. Plaintiffs were tried in a consolidated proceeding before Judge Morgan E. Lane, Criminal Court, New York County, on January 13, 1972. At trial, plaintiffs moved to dismiss the prosecution asserting that Section 13 was unconstitutional "as drafted, as applied with respect to these individuals." The Court rejected this defense and found them guilty, sentencing each to a fine of $10.00 or two days in jail. An appeal was taken to the Appellate Term, New York Supreme Court, where the issue of the purported unconstitutionality of the section and of the procedure it creates was fully briefed by plaintiffs. *fn1" The Appellate Term affirmed the convictions on November 17, 1972 without opinion, and leave to appeal to the New York Court of Appeals was denied December 22, 1972. Plaintiffs did not seek review by the United States Supreme Court, nor did they seek postconviction collateral relief in the nature of habeas corpus.

 The civil rights complaint herein was filed April 6, 1973, and -- with leave of the Court -- was amended June 13, 1973. During the pendency of defendants' motion to dismiss the complaint, plaintiff Lockshon asserted a desire to make immediate distributions of literature in the parks, and a petition for preliminary relief was filed. An evidentiary hearing was duly held on June 13, 1973, at the conclusion of which the Court found insufficient proof of immediate, irreparable harm and of probable success on the merits and found the balance of equities favoring the defendants. Accordingly, provisional relief was denied.

 Although the focus of the evidentiary hearing was on the request for a preliminary injunction, the parties were given an opportunity to argue the legal issues presented by defendants' motion to dismiss and some of the evidence adduced at the hearing was directed to that motion. The record of such an evidentiary hearing may be considered part of the record in ruling on the present motion to dismiss the complaint. Cf., Fed. R. Civ. P. 12(d) and 65(b).

 II. Res Judicata

 Defendants contend that the state judgment and proceedings operate to preclude litigation by these plaintiffs of the constitutional challenge in this civil rights suit.

 The defense of res judicata, while contained in the list of affirmative defenses in Fed. R. Civ. P. 8(c), is not enumerated in Fed. R. Civ. P. 12(b) as a ground for pre-trial motion to dismiss. However, it is generally held that, in the interest of efficient and expeditious judicial administration, res judicata can be raised and considered at a pre-trial stage. Katz v. State of Connecticut, 307 F. Supp. 480 (D. Conn. 1969), aff'd, 433 F.2d 878 (2d Cir. 1970); 5 Wright & Miller, Federal Practice and Procedure § 1360 (1969).

 While it may be proper to consider the issue raised by defendants at this point, its resolution is not without difficulty. No case has been cited by either party which conclusively states whether or not a constitutional challenge to a state statute may be pursued in a federal civil rights suit after the challenge has been ...

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