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September 25, 1975

JOHN L. BARRY, Suffolk County Commissioner of Police; H. LEE DENNISON, Suffolk County Executive; JOHN HALL; FRED BRUNS; and JOHN DOE, Defendants

The opinion of the court was delivered by: NEAHER


 NEAHER, District Judge.

 In this action under 42 U.S.C. § 1983, plaintiffs sued for monetary damages and equitable relief to redress violations of their civil rights by the defendant Suffolk County officials and police officers, whom they alleged arrested and jailed them without probable cause and attempted to prosecute them for exercising rights of free speech. Equitable relief having become moot, *fn1" the case was tried by the court without a jury on the issues of liability and damages. The facts and discussion which follow constitute the court's findings of fact and conclusions of law pursuant to Rule 52, F.R.Civ.P.

 The evidence at trial established the following facts without material contradiction. On the evening of August 6, 1971, plaintiff William Baird, a well-known speaker on population control, was scheduled to deliver a lecture in Huntington, Long Island, in a building known as the People's Town Hall ("PTH"). The lecture was jointly sponsored by the Huntington Women's Liberation and PTH, which then served as a headquarters for workers in the Methodist Volunteer Service affiliated with the Methodist Church. At least a week prior to the lecture notices had been sent to other women's liberation groups in Suffolk County and posters were displayed in local stores indicating that Mr. Baird's lecture would deal with the subject of birth control and abortion.

 The posters were observed by Mrs. Lucille Buffalino, a Huntington resident and leader in groups strongly opposed to abortion. At her direction, one of her volunteer workers called the Huntington Town Supervisor's office and apparently complained that "juveniles" would attend the Baird lecture and that "contraceptive devices would be dispensed" (Def. Exh. T). That "message" was relayed to the Suffolk County Police Precinct in the Huntington area and triggered the police action which gave rise to this suit.

 On August 6, when Mr. Baird appeared about 8:45 P.M. to give his lecture, an audience variously estimated at between 60 and 90 people had crowded into PTH to hear him. Nearly all were women, two or three of whom had small children with them. PTH, a former private dwelling, was not equipped to provide seating for all and a portion of the audience was either standing or seated on the floor. During the lecture a number of "teenagers" were observed entering and exiting at various times and a group of them were seated on a wall outside the building. Also present, unknown to those in attendance, were two plainclothes Suffolk County police officers, the defendants John Hall and Fred Bruns. They were there in response to the "message" initiated by Mrs. Buffalino.

 The lecture delivered by plaintiff Baird -- and heard by the defendant police officers -- was one he had given hundreds of times over the past decade at high schools, colleges, universities, churches, temples, synagogues and to numerous other organizations and public gatherings throughout the country. *fn2" Its essential message stressed the right of women to control their procreative faculties but warned of the risks of ignorant reliance upon various methods and devices commonly used to avoid conception, the serious hazards of self-abortion and implements often used for that purpose, and the need for competent medical advice. The message was made more graphic by the use of a display panel Baird devised (Def. Exhs. K, K-1). This was a board on one side of which were affixed specimens of the various contraceptive devices referred to in the lecture, and on the other side were attached common implements which have been used for self-abortion, surrounding a prominent skull and cross-bones painted on the panel.

 Baird, after completing his lecture, invited questions from the audience. Just as the question and answer period was beginning, several uniformed policemen summoned by the surveilling plainclothesmen arrived at PTH. Their appearance and actions created a state of confusion, during which any "juveniles" -- if indeed any were present -- disappeared. The police operation resulted in only two arrests, which were made by the defendant officers Hall and Bruns. Those arrested were plaintiff Baird and plaintiff Nancy Manfredonia, who had attended the lecture with her 14-month old baby daughter.

 Mrs. Manfredonia and her husband are residents of Suffolk County and her attendance at the Baird lecture was prompted by a notice she received through the mail from a local women's group of which she is a member. She is a university graduate, married, and now the mother of two children. At the time of her arrest she was 28 years of age. Prior to the lecture she had never met Baird and had no contact with him apart from the proceedings arising out of the incident herein. The Manfredonias had their baby daughter with them that evening because they were unable to obtain the services of a baby sitter. About 9:00 P.M., after completing some shopping, they proceeded to PTH, where Mrs. Manfredonia went in to hear the lecture and her husband left with the child to carry out another errand. He later returned to PTH, where Mrs. Manfredonia asked him to come in with the baby and wait for a few minutes to enable her to hear the question and answer session about to begin.

 After the police interruption occurred, she was escorted outside and taken with her husband and baby in a police car to police precinct headquarters. Plaintiff Baird was also escorted out of PTH in police custody and taken to the precinct. There, both plaintiffs were informed they would be charged with endangering the welfare of a child in violation of New York Penal Law § 260.10. *fn3" The "child" was Mrs. Manfredonia's baby. Both were then processed in the usual manner by being fingerprinted, photographed, handcuffed and taken to a town jail for confinement overnight pending arraignment in court. This was completed well after midnight, at which time Mr. Manfredonia was permitted to return home with the baby. Mrs. Manfredonia spent the night in a bare cell with only a wooden slab, lacking blankets, mattress or pillow, for purposes of rest. Her sandals and glasses were taken from her and not returned until she entered the courtroom the next morning. Mr. Baird was subjected to similar treatment.

 On August 7, 1971, the plaintiffs were arraigned in the Suffolk County District Court at Hauppauge, Long Island. There they were charged in formal misdemeanor complaints with violating § 260.10 of the New York Penal Law, n. 3 supra. Plaintiff Manfredonia was charged by defendant Hall with violating subdivision 2 of § 260.10 for having taken her infant daughter "to a lecture concerning birth control devices at which lecture said devices were exhibited in there [ sic ] use." Plaintiff Baird was charged by defendant Bruns under subdivision 1 of the statute for having "exposed" plaintiff Manfredonia's infant "to a lecture concerning birth control devices and did exhibit said devices with instructions for their use." Pl. Exh. 1. The police defendants having refused to dismiss the charges, both plaintiffs were released pending trial, for which a later date was set.

 Prior to that date, however, the charges against both plaintiffs were dismissed in open court on motion of the District Attorney of Suffolk County. On this trial the parties stipulated that affidavits previously filed by the District Attorney could be received in evidence in lieu of his testimony. Pl. Exhs. 7, 8. In brief, the District Attorney averred that he was unaware of the arrests, did not authorize them, and would have declined to prosecute the charges because it was his opinion that Penal Law § 260.10 "is not applicable to a parent bringing a minor child to attend a lecture on birth control." See also Farkas v. Barry, 335 F. Supp. 681 (E.D.N.Y. 1972, three-judge court).

 1. Liability

 The evidence in this case indisputably establishes that at the time the defendant police officers undertook the actions complained of, both plaintiffs were doing nothing more than exercising rights firmly secured by the United States Constitution. Plaintiff Baird was simply exercising his First Amendment right of free speech -- to communicate with those who wanted to hear what he had to say, however unpopular his ideas might be with other members of the community. His so-called "demonstration board", Def. Exhs. K, K-1, which the defendant police officers unsuccessfully attempted to make the basis of their charges, was but an adjunct to illustrate points made in his lecture. Both Hall and Bruns conceded that no illegal items were displayed and no contraceptive devices were dispensed.

 Plaintiff Manfredonia was similarly exercising her First Amendment rights, shared by the other adults present, mostly women, to listen to Baird's lecture. Both plaintiffs were also exercising their right to peaceably assemble at the PTH pursuant to the invitation of the sponsoring women's organization. Mrs. Manfredonia, moreover, was clearly exercising her parental right under the Ninth Amendment to have her own child with her regardless of its age.

 There was no credible evidence of any disorderly conduct or other breach of the peace calling for police action until the police themselves arrived at PTH in force. Their intrusion upon the scene effectively disrupted the question and answer portion of the lecture and deprived these plaintiffs (and others) of constitutional rights. The subsequent arrest, charging and police processing of these plaintiffs were further deprivations of their civil rights under color of law, for they were made without a ...

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