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12/19/69 the Washington Free v. Jerry V. Wilson

December 19, 1969

THE WASHINGTON FREE COMMUNITY, INC., ET AL., APPELLANTS

v.

JERRY

v.

WILSON, CHIEF OF POLICE, DISTRICT OF COLUMBIA METROPOLITAN POLICE, ET AL. 1969.CDC.308



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

Bazelon, Chief Judge, and McGowan and Tamm, Circuit Judges. Bazelon, Chief Judge (concurring in part and dissenting in part).

PER CURIAM DECISION

This is an appeal of the denial by the District Court of a preliminary injunction. *fn1 The complaint sought declaratory and injunctive relief against the heads of the Washington Metropolitan Police and the United States Park Police upon allegations that their subordinates were harassing and unlawfully arresting the vendors of a semimonthly publication called the Washington Free Press. Hearing in the District Court consisted solely of arguments by counsel founded upon the pleadings and affidavits. Coincidental with the denial to appellants of a preliminary injunction, the District Court also denied the motion of the head of the Park Police for summary judgment; and the case thus remains pending in the District Court for trial on the merits.

The issue before us with respect to the preliminary injunction is the narrow one of whether the District Court abused its discretion in failing to give preliminary injunctive relief. We think not. The charges against the Metropolitan Police are that street vendors of the Free Press are on occasion harassed and intimidated (by unlawful arrest and otherwise) while selling their papers on the streets. The affidavits purport to show a few individual instances of such harassment. But it was not made to appear that the selling of the paper on the streets has been halted or, indeed, seriously impaired, at least not to the degree making the withholding of temporary relief reversible error.

In the case of the Park Police, the affidavits show arrests for selling in parks under the jurisdiction of the National Park Service; and the Park Police represent that it is both their policy and their duty to make such arrests under a regulation relating to commercial vending in the parks promulgated under the authority of an Act of Congress. *fn2 Here again it appears that the papers can be, and are being, sold at the entrances and exits to the parks and on the streets adjoining them.

We do not, therefore, see the imminent and irreparable injury which converts the District Court's exercise of discretion into an abuse thereof. We agree with its apparent conclusion that the facts and issues raised by this complaint could best be established, clarified, and resolved, not on motion papers and lawyers' arguments but by the salutary processes of a trial on the merits. *fn3 We see no reason why such a trial may not go forward promptly; and we think that the prospect of such a trial, as well as the powerfully illuminating effects of adversary encounter in an evidentiary hearing, will be greatly in aid of a just disposition of this controversy in both its major aspects.

Having moved -- unsuccessfully -- for summary judgment in the District Court, the Park Police may be thought to have given substance to appellants' contention that this aspect of their complaint at least is ripe for final resolution, and that the legal validity of the regulation, and perhaps of the underlying statutes, should now be pronounced upon by us. But the District Court's action in denying summary judgment at the instance of the Park Police connoted its unreadiness to proclaim in the abstract the legality of the regulation and statutes as applied here, presumably because it thought that there were material issues of fact usefully to be explored in the ventilation of this issue. We think that a trial court, asked to decide large and important public issues such as are involved in litigation of this nature, is entitled to decide for itself how it may most fruitfully inform itself for the task of decision. We share the District Court's apparent view that, before judgment is passed either by it or by us, there is a lot more that could helpfully be known about the purpose and operation of the authority claimed by the Park Police and challenged by appellants.

Affirmed.

CASE RESOLUTION

Affirmed.

MINORITY OPINION

BAZELON, Chief Judge (concurring in part and dissenting in part):

I agree that the denial of preliminary relief against the Metropolitan Police should be affirmed. The suit against the Park Police, however, presents substantially different issues, and ...


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