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NICHOLS v. VILLAGE OF PELHAM MANOR

July 31, 1997

MARGUERITE A. NICHOLS, as Executrix of the Estate of AUGUST NIMPHIUS, JR., Plaintiff, against VILLAGE OF PELHAM MANOR, et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 On July 9, 1994, the late August C. Nimphius, Jr., then the Town Leader of the Conservative Party in the Village of Pelham Manor, New York (the "Village"), was arrested while circulating political nominating petitions and charged with violating the Village's solicitation ordinance and with disorderly conduct. The charges ultimately were dropped, and Mr. Nimphius brought this action against the Village and a number of its police officers. He claims that the statutes under which he was arrested are unconstitutional and that he otherwise was deprived of his constitutional rights. *fn1"

 Facts

 On the date in question, Mr. Nimphius went door-to-door through the Village seeking signatures for political nominating petitions. *fn2" No one answered his ring at the Perillo residence when Mr. Nimphius visited early in the day, so he returned at around 8 p.m. and rang the bell several times.

 Jennifer Perillo, the fourteen year-old daughter of the owners, was home on both occasions, but she did not answer the door. At the time of the evening visit, she called the Village police and reported that a man who had been at her house earlier that day again was at her door and that she "was nervous about his activities." (Perillo Dep. Ex. K) Ms. Perillo related further that the visitor had parked a blue car in front of her house and opened its hood.

 Village Police Officers Panaro, Gaul, Orifici, and Carpenter, all of whom are named as defendants in this suit, responded to Ms. Perillo's call. Mr. Nimphius, oblivious to the impending arrival of the police, drove away from the Perillo home and stopped on another street, again opening the hood of his car. When the police arrived at the Perillo residence, they found that the unidentified caller had departed, so Officer Gaul left to look for him on other streets. When he happened upon a blue car with its hood open, he correctly surmised that it belonged to the individual who had been the subject of Ms. Perillo's call. Officer Gaul claims that as he came upon the scene, Mr. Nimphius was walking away from the front door of a house on the street on which he was then parked. (Gaul Dep. Ex. H 10; Ex. 22)

 Although there is no meaningful dispute over the facts up to this point, the parties' versions of events diverge markedly beginning with the first interaction between Mr. Nimphius and the Village police. Defendants claim that "plaintiff vehemently refused to respond, began shouting and caused a disturbance" in response to Officer Gaul's attempted questioning. (Def. Mem. 3; Panaro Dep. Ex. G 11-12; Gaul Dep. Ex. H 18; Carpenter Dep. Ex. I 12) *fn3" Plaintiff claims that "although [he] berated the defendant police officers as uneducated ignoramuses, he did [ sic ] neither shouted nor caused a disturbance." (Pl. Mem. 4-5) In his deposition, he stated "there were no loud voices and . . . there was no collection of people in the neighborhood" as a result of his interaction with the police. (Ex. 5, 32-33) He claims also that he informed the officers that they had no right to interfere with his political activities.

 Whatever transpired between Mr. Nimphius and the police, it is undisputed that at some point the officers informed Mr. Nimphius that he was violating the Village's prohibitions on disorderly conduct and soliciting without a permit. (Panaro Dep. Ex. G 21) Mr. Nimphius eventually was placed under arrest and brought to Village police headquarters, where he was detained for approximately one hour while he was issued appearance tickets for disorderly conduct and soliciting without a permit. Plaintiff never was searched, placed into a cell, handcuffed, photographed, or fingerprinted. Plaintiff alleges that his briefcase and car were searched by the police during his detention, and defendants have not denied that such a search might have occurred.

 On October 2, 1995, plaintiff brought this suit alleging that his civil rights were violated under color of state law in contravention of 42 U.S.C. § 1983. In addition to the Village, the complaint names Officers Orifici, Gaul, Panaro, and Carpenter as defendants in their official and personal capacities. The Court later granted leave to amend the complaint to add Officer Lenci as a defendant.

 
"plaintiff was deprived of his Civil Rights not to be subjected to harm and to be free of cruel and unusual punishment without due process and to be peacefully secure in his person and to be afforded equal protection of the law in furtherance of his speech at the hands of persons acting under the color of Village law, all in violation of his Civil Rights under the Constitution of the United States and particularly the First, Fourth, Eighth and Fourteenth Amendments thereof." (Cpt P 14)

 Despite the inartful pleading, it is possible to discern the claims made by Mr. Nimphius. He alleges that (1) his arrest violated his rights under the First and Fourteenth Amendments; (2) his arrest for activities which others undertook with no response from the police denied him the equal protection of the law; and (3) he was arrested without probable cause in violation of the Fourth and Fourteenth Amendments. *fn4" Defendants seek summary judgment dismissing all of plaintiff's claims on the ground that there was no violation of his rights. Defendants argue also that plaintiff has not made allegations sufficient to subject the Village to liability and that the individual defendants are entitled to qualified immunity from all of plaintiff's claims.

 Discussion

 I. First Amendment Claim

 Plaintiff claims that the Village's solicitation and disorderly conduct ordinances are unconstitutional and that his arrest under these ordinances therefore violated his civil rights under color of state law. *fn5" Defendants claim that the solicitation statute is valid and seek summary judgment dismissing this claim. They present no argument with regard to the disorderly conduct statute.

 1. The Solicitation Ordinance

 Four aspects of the Village solicitation ordinance are significant for First Amendment purposes. The first is the vast authority given to the Chief of Police in the permit-granting process. (Subsection 2) The second is its failure to specify a time period within which an application must be approved or denied. (Id.) The third is the absolute ban on solicitation on the streets of the Village. (Subsection 5) The fourth is the vagueness of key terms in the ordinance. (Subsection 3)

 A. Permit Granting Procedure

 The broad discretion afforded the Chief of Police in the permit-granting process calls into question the validity of the solicitation ordinance. However, Mr. Nimphius' standing to challenge this procedure is not self-evident.

 As a general rule, federal courts will entertain constitutional challenges to statutes only as they are applied. Because Mr. Nimphius failed to apply for a permit under the ordinance, he would be precluded from challenging the permit-granting procedure on an as-applied basis. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-67, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972) (no standing to challenge racially exclusive membership policy unless plaintiff applied for membership); see also Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 165, 27 L. Ed. 2d 749, 91 S. Ct. 720 (1971). There are, however, several exceptions to the general rule of as-applied review. One applies to statutes, like this one, that give broad discretion to a permit-granting authority.

 
"In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be prescribed by a properly drawn statute, and whether or not he applied for a license." Freedman v. Maryland, 380 U.S. 51, 56, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965). *fn6"

 There can be no serious dispute that solicitation is a form of speech protected by the First Amendment. *fn7" As the ordinance gives the Chief of Police discretion to deny an applicant the right to solicit in the Village, Mr. Nimphius has standing to bring a facial challenge to the constitutionality of the ordinance.

 The issue presented by the permit-granting authority conferred by the Village on its Chief of Police is not novel:

 
"Many decisions of [the Supreme] Court over the last [50] years [have held] that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51, 22 L. Ed. 2d 162, 89 S. Ct. 935 (1969). *fn8"

 The Village ordinance grants discretion to the Chief of Police, both in investigating applications and in approving the issuance of permits. It lacks, however, any "narrow, objective and definite standards" to guide the discretion of the licensing authority. Under the Village ordinance, the Chief may not refuse a permit unless he determines that a denial is necessary to carry out one of the express purposes of the statute. *fn9" However, it is the Chief's subjective determination of what is necessary that serves as the only limit on his power. As the statute is written, the Chief can prevent expression based solely on what he thinks will be the effect of the proposed expression. His discretion is not restrained by meaningful, objective standards.

 In Shuttlesworth, the Court held such limitations on discretion insufficient. There the statute required the issuance of a permit unless in the judgment of the issuing body "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused." Shuttlesworth, 394 U.S. at 149-50. The Court held that these standards did not sufficiently limit the discretion of the permit granting body. "For in deciding whether or not to withhold a permit, the members of the Commission were to be guided only by their own ideas of 'public welfare, peace, safety, health, decency, good order, morals or convenience.'" Id. at 150.

 Hague v. C.I.O., 307 U.S. 496, 83 L. Ed. 1423, 59 S. Ct. 954 (1939), is to similar effect. The Court there found the challenged statute unconstitutional because:

 
"it enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege can not be made a substitute for the duty to maintain order in connection with the exercise of the right." Id. at 515 (opinion of Roberts, J.) (plurality); see also Schneider, 308 U.S. at 163-64 (power to refuse permits only if applicant "is not of good character or is canvassing for a project not free from fraud" not a valid limit on officer's discretion).

 The purposes stated in the Village ordinance all are so broad that they provide no meaningful standards to reign in the Chief's discretion. The ordinance allows the Chief to inquire into any issue he thinks is relevant, and to determine what he thinks is necessary to preserve the "good order" of the community or to protect the residents from "annoyance." Because any solicitation might cause annoyance, the Chief could suppress any proposed solicitation on that basis, even if actually motivated by a desire to censor content. The standards limiting official discretion in Hague and Shuttlesworth were more definite, objectively determinable and significant than those in the Village ordinance, yet they were held to be constitutionally insufficient.

 "An ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -- as by requiring a permit or licence which may be granted or withheld in the discretion of such an official -- is an unconstitutional censorship or prior restraint upon the enjoyment of those ...


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