Douglas H. Donohoe v. Frank S. Duling, Chief of Police for the City of Richmond, Virginia

465 F.2d 196, 1972 U.S. App. LEXIS 8112

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 1, 1972
• Docket: 71-1954
• Status: Published

Opinions

DONALD RUSSELL, Circuit Judge:

This class action challenges certain practices of the police department of the City of Richmond as infringements upon plaintiffs’ freedom of speech and association as guaranteed by the First Amendment and of the constitutional right to be secure in their privacy from unreasonable Government intrusion.¹ The defendants are the Chief of Police and Director of the Department of Public Safety for the City of Richmond.² Specifically, the plaintiffs object (1) that police surveillance, and especially the presence and use of police photographers, at demonstrations and other public meetings or vigils, are violative of their First Amendment rights and (2) that the retention in the police files of photographs of persons participating in such demonstrations or attending such meetings is an unconstitutional violation of their right of privacy. They ask for a declaratory judgment that such practices are illegal and for injunctive relief against their continuance. The District Court denied relief³ and this appeal followed.

The record establishes that the police department of Richmond engages routinely in surveillance, in the form of a uniformed police presence, at public demonstrations and political meetings held on public streets or grounds, that it photographs at least some persons present or participating in such demonstrations or meetings and that it maintains photographs of such participants in its files, which photographs are made available, on request, exclusively to other law enforcement agencies.⁴ These activities are treated by the defendants as normal police procedure. According to the Richmond Acting Director of the Department of Public Safety, they conform to the “acceptable police practice throughout the country to record demonstrations, both peaceful and otherwise * * *." The reason assigned for the practices by the Acting Director is the “need to know who the leaders (of the demonstrations) are”, particularly “those who are coming in from outside of our city”. By photographing those who are “from outside of our city”, the police authorities, after an exchange of information with “other police agencies, federal, state, local”, can determine whether these outsiders “are dangerous, whether they have participated in affairs in other areas where problems have actually developed”.⁵ The Acting Director expressed the opinion that, “The very fact that the proceedings are recorded on film has a deterrent effect” and “is a deterrent to violence, vandalism, this type of thing”.

The classes or types of meetings and demonstrations covered by this practice of the police department are varied and significantly different in character. Some are public demonstrations conducted on the public streets, where the actual purpose of the demonstrators is to publicize, by their presence and participation, their cause. In keeping with this purpose, the news media, radio, and television are given advance’ notice of the demonstrations and are invited to send reporters and photographers to cover the demonstrations. At times, it was testified, the police authorities likewise were advised and, it may be assumed, were impliedly invited to be present. Other demonstrations involved what was characterized in the testimony as “shop-ins”, a term used to describe the descent of an organized group upon a store, where members of the group pick-up various articles of merchandise and, without paying for the articles, depart, advising the clerk as they depart to charge it to “welfare”. It was testified that on at least one occasion, the police authorities were given prior notice by the organizers of one of these “shop-in” demonstrations. A third group of meetings involved in the police action, consisted of public meetings held on the public grounds of the State House or other public property. The exact nature of these meetings was not set forth, but, it seems, they were primarily “anti-war” or “pro-welfare” in their purpose. The only groups specifically identified as participating were the “Women’s International League for Peace and Freedom” and the “Welfare Rights Organization”. There was testimony that “some of them (the demonstrations or meetings) have gotten out of hand, rowdy, destroying property”.

There was a final category of meetings referred to in the record. These were held in a local church. They were open to the public and the programs would generally embrace a speech on a controversial political subject under the sponsorship of an organized group. The police department properly considered this group of meetings differently from the other three. It did not attempt to have observers present at such meetings, presumably because the meetings, though public, were on private property. It did, though, station a photographer, at times on the sidewalk, at other times in a car on the Street opposite the church; and this photographer, so far as practicable, photographed those entering the church.

The defendants raised the threshold question that the plaintiffs are without standing to maintain this action or to represent the class or classes allegedly adversely affected' by the practices of the police department. Specifically, they deny that the plaintiffs have sustained any injury or realistic threats to their rights. The record includes no testimony from any plaintiff other than the plaintiff Donohoe. And Donohoe, it developed, had no complaint against the defendants. He was a student at Virginia Commonwealth University in Richmond. While attending a meeting on the campus of that institution, he observed officers maintaining surveillance of the meeting and was photographed by them as he entered the meeting. The officers, however, were not connected with the Richmond police department and were not under the direction or control of the defendants; they were security officers employed by the university. It is true the defendants conceded the surveillance of certain demonstrations and public meetings. They, also, admitted that photographs were taken of persons attending such meetings or participating in demonstrations. Pictures of two of the plaintiffs had been taken while they were participating in demonstrations. But the defendants denied that any of the plaintiffs had been inhibited in the exercise of their First Amendment rights by any action on their part; and no plaintiff testified to the contrary. In particular, to restate: there was a complete absence of testimony that any of the plaintiffs had ever sustained any “specific present objective harm” or had ever been personally restrained, or “chilled”⁶ in the exercise of his or her First Amendment rights.

At the outset of the action, it is true, the plaintiffs had moved for a temporary restraining order, and in connection with that motion, had filed their affidavits. Of course, these affidavits, never incorporated in the testimony, cannot be a basis for a finding of standing to sue. Even if they were available for this purpose, they would be insufficient to establish a justiciable claim on the part of the plaintiffs. In these affidavits, the plaintiffs set forth in detail repeated demonstrations in which they had participated where the police had been present and at which they had either been photographed or had heard of others being photographed. It is manifest from their statements in these affidavits, detailing repeated demonstrations in which they had taken part, that they had not been deterred by the activities of the police authorities from participating in demonstrations or “chilled” in the exercise of their First Amendment rights. In fact, they made no such claim. At best, they asserted that they were “annoyed” or “felt uncomfortable” or “nervous”. Accordingly, if the testimony herein be expanded to include the affidavits of the plaintiffs, which represented ex parte statements of the parties, untested by cross-examination, there is still nothing in this record to establish harm or injury actually sustained by the plaintiffs themselves.

The plaintiffs did present testimony from others on the practices of the Richmond police department. These witnesses were not intervenors in the action and their complaints would not uphold a justiciable claim on the part of the plaintiffs. Even had they intervened, their testimony would not establish that their First Amendment rights had been “chilled” by the action of the Richmond police authorities. None of these witnesses, by their own testimony, had been, either directly or apparently even subconsciously, deterred in the exercise of their First Amendment rights by the action of the defendants nor had they suffered any specific injury. Two of the witnesses were leaders in organizing demonstrations. They frankly conceded that nothing the Richmond police authorities did induced them to desist from their prominent roles in public demonstrations or meetings. They did not object to being photographed; to the contrary, they solicited publicity both for their meetings and for themselves by inviting representatives of the news media, including photographers, to be present and to report, with photographs, the demonstrations and meetings.⁷ Their only complaint was that others were not as forthright or courageous as they; they claimed the right to speak for these more timorous individuals.⁸ And they endeavored to establish the existence of, and to identify, the more timorous by testifying that, when they offered a handbill to some passers-by, the handbills were refused or taken diffidently. These refusals or this diffidence the witnesses subjectively attributed, not to unfriendliness to their cause or even disinterest, but to an apprehension generated by the presence of the police at the demonstration. They, also, claimed-that some persons had been frightened from participating in demonstrations by this police presence. Three persons present in court and identified by name were stated to have indicated that they were so deterred. It is significant though, that no one of these three supported this claim with their testimony. Another witness for the plaintiffs testified that he had intended to attend a public meeting but, on his way to the meeting, passed a police car, the sight of which prompted such fear in him that he did not drive on to the meeting. Another witness simply objected to having his picture taken at all; in fact, he indicated he would refuse to have his picture affixed to his driver’s license, even though required by State law. One witness was the minister at the church where a public meeting was held. He was not photographed, so far as the record shows, and certainly was not intimidated. He objected to a police ear parked on the street opposite the church, where those attending the meeting were observed, in some instances, being photographed, with presumably long-distance lenses. Finally, there was testimony that, in offering a reply to a complaint filed by a post office employee claiming discrimination in promotion and prejudice on the part of the local postmaster, the local postmaster had reported that the FBI had told him the employee had participated in a demonstration. There was no evidence that the FBI had actually secured this information from the Richmond police department, though it was proved that the files of that department were available to the FBI. It is common knowledge though, that the FBI maintains its own surveillance of demonstration groups and it is just as reasonable to assume it may have acquired knowledge of the employee’s participation from its own surveillance as from that of the Richmond police department.⁹ At any rate, there was no evidence that this information prejudiced the employee in any way in the disposition of his complaint. Moreover, this employee was not a plaintiff.

Laird v. Tatum, decided June 26, 1972, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154, makes clear, that on this record (even if expanded to include the affidavits of the plaintiffs filed in connection with their preliminary motion) the plaintiffs are without a justiciable claim for relief and that the District Court correctly dismissed the action. In that case, the plaintiffs “were targets of the Army’s surveillance”.¹⁰ As we have already indicated, that “surveillance” went far beyond the extent of “surveillance” in this case. It was clandestine, not open. It employed not merely photographers but resorted to sophisticated electronic methods of surveillance. It involved infiltrating meetings with secret agents and photographers.¹¹ The information collected was “distributed to civilian officials in state, federal, and,local government * * are (were) stored in one or more data banks.” ' In this ease, on the other hand, .no plaintiff — -for that matter, no witness — was subjected to clandestine surveillance. The photographer was no counterfeit news photographer; he was openly identified as a police officer and known by the demonstrators as such. Indisputably, the surveillance in Tatum was far more pervasive and open to attack than that involved here. Moreover, the right of the Army to engage in domestic surveillance was considerably less clear than that of the local police authorities, such as the defendants here, on whom there is a specific obligation to maintain domestic law and order.

In determining justiciability under the circumstances of Tatum, the Court emphasized at the outset that, the “chilling” effect of executive actions, falling short of a direct restraint of First Amendment rights, would not give rise to a justiciable cause if it arose, “merely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual”. (Italics in opinion) (408 U.S. p. 11, 92 S.Ct. p. 2324) To the contrary, it observed that in the cases where relief had been granted, “the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations; proscriptions, or compulsions that he was challenging”. Quoting from Ex parte Levitt (1937) 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493, the Court pointed out “that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action * * ¹² The opinion proceeded to identify specific injuries which in earlier decisions, had involved ¹³ personal and specific harm sufficient to sustain justiciability. Specifically, Tatum held that there must be “a claim of specific present objective harm or a threat of specific future harm” in order to support a justiciable claim for relief in a case of this type. “Allegations of a subjective ‘chill’ ” will not suffice. Nor may a plaintiff base his right to sue on injury to another. Quoting from Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (filed 1972, note 7,) Chief Justice Burger stated that “a litigant ‘has standing to seek redress for injuries done to him, but may not seek redress for injuries done to others.’ ”

The plaintiffs in this case, undeterred by any action by the defendants and offering no testimony of “injuries done to him (them)”, — of any inhibiting of their own exercise of the rights of free speech, of any penalty imposed on them which could be attributed to their exercise of their First Amendment rights, of any loss of employment or even reasonably foreseeable threat of such, of any threat of prosecution, or specific, identifiable civil sanction, — seek primarily in this action to vindicate the alleged rights of others, whose actual intimidation or injury is purely conjectural and speculative, without any positive proof in support. As the Court observed in Tatum, this case represents no more than a claim by the plaintiffs that “the exercise of his (their) First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity that is alleged to be broader in scope than is reasonably necessary for the accomplishment of a valid governmental purpose” (408 U.S. at p. 10, 92 S.Ct. at p. 2324) and, as in Tatum, the plaintiffs are “not people, obviously, who are cowed and chilled” by such activity. They are without a justiciable claim.

Affirmed.

1 . For a perceptive discussion of the constitutional concept of privacy, see Lusky, Invasions of Privacy: A Clarification of Concepts, Political Science Quarterly, June, 1972, p. 192.

2 . The Commonwealth of Virginia was permitted to intervene in support of the position of the defendants.

3 . Donohoe v. Duling (D.C.Va.1971) 330 F.Supp. 308.

4 . There is no legislative authorization for any of such practices nor are there precise administrative regulations governing the procedures to be followed. The author of the note in 58 Cal.L.Rev. 914, at p. 928, titled “Preventive Intelligence Systems and the Courts”, indicates that authorization for such practices should be legislatively given. Cf., however, Anderson v. Sills (1970) 56 N.J. 210, 265 A.2d 678, 684.

5 . Compare, Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2,d 154, where the Army, in connection with its responsibility in cases of public disorder, justified its surveillance because of the necessity of a public awareness of group tensions, what forces exist, the nature and size of discordant groups and the exploding possibilities of such tensions.

6 . The term “chilling effect”, as used in analyzing challenges under the First Amendment, was introduced first into legal terminology by Justice Frankfurter in his concurring opinion in Wieman v. Updergraff (1952) 344 U.S. 183, 195, 73 S.Ct. 215, 97 L.Ed. 216. In his concurring opinion in Zwickler v. Koota (1967) 389 U.S. 241, 256, n. 2, 88 S.Ct. 391, 19 L.Ed.2d 444, Justice Harlan describes this “chilling effect doctrine” as “ubiquitous and slippery” and as “amorphous”.

7 . Accounts of their activities were available in newspaper files.

8 . Their position is similar to that of the plaintiffs in Laird v. Tatum. In that case, it was stated (408 U.S. at p. 13, 92 S.Ct. at p. 2326, n. 7):

“At the oral argument before the District Court, counsel for respondents (the plaintiffs) admitted that his clients were ‘not people, obviously, who are cowed and chilled’; indeed, they were quite willing ‘to open themselves up to public investigations and public scrutiny’. But, counsel argued, these respondents must ‘represent millions of Americans not nearly as forward (and) courageous’ as themselves.”

9 . Section 534(a) (1), 28 U.S.C., authorizes the FBI to classify and preserve “identification, criminal identification, crime, and other records” and to exchange such “with, and for the official use of” federal, state or municipal law enforcement officers. See, also, Menard v. Mitchell (D.C.D.C.1971) 328 F.Supp. 718.

10 . See 408 U.S. 16, 92 S.Ct. 2327 (dissenting opinion, Justice Douglas). This is confirmed in the opinion below where tlie Court said (444 F.2d at p. 954, n. 17):

“Tlie record shows that most if not all of the appellants and/or the oi’ganiza-tions of which they are members have been the subject of Army surveillance reports and their names have appeared in the Army’s records.”

11 . See 408 U.S. 16, 92 S.Ct. 2327 (dissenting opinion, Justice Douglas).

12 . See, also, Kansas City, Mo. v. Williams (8th Cir. 1953) 205 F.2d 47, 51, cert. denied 346 U.S. 826, 74 S.Ct. 45, 98 L.Ed. 351, quoted in the dissenting opinion in 444 F.2d at p. 961.

13 . These involved restraints upon right to practice law (Baird v. State Bar of Arizona, 1971, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639), loss of employment (Keyishian v. Board of Regents, 1967, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629), and personal burden (Lamont v. Postmaster General, 1965, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398), to which might be added, harm such as involved in criminal sanctions (Gibson v. Florida Legislative Comm., 1963, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929) and threat of criminal prosecution (Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22).