Belknap v. Leary

314 F. Supp. 574, 1970 U.S. Dist. LEXIS 11538

• Court: District Court, S.D. New York
• Decided: May 28, 1970
• Docket: No. 70 Civ. 2183
• Status: Published

Opinion

TEMPORARY RESTRAINING ORDER

MOTLEY, District Judge.

This case came on before this court on application of plaintiffs for a temporary restraining order restraining defendant police officials, their agents, servants, and employees, from failing to give the individual plaintiffs and members of their class protection against actual or threatened physical harm at any legally constituted public demonstration over the Memorial Day Weekend.

The application was originally made by plaintiffs on Wednesday, May 27, without notice to the defendants. The application for temporary restraining order without notice to the defendants was denied and plaintiffs directed to notify defendants to appear at 3:00 P.M. before this court upon this application.

Defendants appeared by counsel and advised the court that the Police Department has been notified that there will be several demonstrations and parades both in support of and opposed to the United States Government’s current war policies over the Memorial Day Weekend.

The court has read the complaint in this action and the affidavits of the individual plaintiffs attached to their order to show cause for a preliminary injunction and motion for a temporary restraining order and finds that unless defendants are restrained, pending a hearing of plaintiffs’ motion for preliminary injunction on June 2, 1970, plaintiffs will suffer irreparable injury to their First Amendment rights to peacefully protest against the Government’s current war policies in that they will be afraid to exercise said rights unless this order is issued.

This conclusion is based upon the facts alleged in the affidavits which have been filed and which attest to actual physical assaults upon affiants and others which affiants witnessed in the presence of police officers on May 8, 1970 who failed and refused to protect affiants and the others from actual physical assaults while peacefully participating in an antiwar demonstration on said date.

Since the Police Department has knowledge of the fact that demonstrations and parades will take place over the Memorial Day Weekend and despite this knowledge the Department has not publicly announced that it will afford protection from physical assaults and threatened physical assaults upon those opposed to the Government’s war policies and that as a result of this failure the individual plaintiffs and members of the class which they represent will suffer irreparable harm to their First Amendment rights,

It is now ordered that the defendants Howard R. Leary, Police Commissioner, City of New York, Inspector Harold Schryner, and all the other inspectors, captains, lieutenants, sergeants, and police officers of the City of New York be restrained from:

1) failing to protect plaintiffs and members of their class, while engaged in the peaceful and orderly exercise of their constitutional right to protest present Government war policies, from physical assaults and threat of physical assaults on May 29, 30, 31, 1970;

2) failing to guarantee to these plaintiffs and members of the class they represent proper and adequate police protection while said plaintiffs and members of their class are engaged in exercising their constitutional right to meet and assemble in a peaceful and orderly manner and protest against the Government’s war policies on May 29, 30, and 31, 1970;

3) refusing or failing to take all reasonable precaution and means to protect plaintiffs and others similarly situated from acts of violence or other interference with the exercise of their right to peacefully assemble and protest present Government war policies on May 29, 30, and 31, 1970.

It is further ordered that this order apply only to those demonstrations to be held on May 29, 30, 31, 1970 of which the Police Department has prior notice.

It is further ordered that this order be read or otherwise conveyed by the Police Commissioner, or his designated deputy, to every member of the Police Department who will be on duty on May 29, 30, 31, 1970 and, more specifically, before the commencement of the antiwar demonstration of which the Police* Department has notice and which is scheduled to take place on May 30, 1970 on Fifth Avenue between 72nd and 91st Streets and in Central Park.

It is further ordered that defendants show cause on June 2, 1970 at 10:00 o’clock A.M. or as soon thereafter as counsel can be heard why a preliminary injunction should not issue as prayed by plaintiffs in their complaint and moving papers and why expedited discovery should not be ordered.