McIntosh v. Arkansas Republican Party -- Fank White Election Committee Brief of Appellant

    UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

ROBERT "SAY" McINTOSH )
)

Appellant, )
)vg ) No. 84-1499-EA
)

ARKANSAS REPUBLICAN PARTY—  )
FRANK WHITE ELECTION COMMITTEE;)
CURTIS FINCH, JR., INDIVIDUALLY)
AND AS CAMPAIGN CHAIRMAN OF THE)
FRANK WHITE RE-ELECTION )
COMMITTEE; ARKANSAS STATE )
POLICE; TOMMY GOODWIN, )
INDIVIDUALLY AND AS DIRECTOR )
OF THE ARKANSAS STATE POLICE; )
NORTH LITTLE ROCK CITY POLICE )
DEPT.; BILL YOUNTS, )
INDIVIDUALLY AND AS CHIEF OF )
NORTH LITTLE ROCK POLICE DEPT.;)
JOHN DOE AND RICHARD DOE, ETC. )

)
Appellees. )

BRIEF OF APPELLANT ROBERT "SAY" McINTOSH

HORACE A. WALKER
Heller, Walker & Torrence
415 Main Place Building
415 Main Street
Little Rock, Arkansas 72201
(501) 374-3420
JACK GREENBERG 
RONALD L. ELLIS 
99 Hudson Street 
16th Floor 
New York, NY 10013



T

UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

ROBERT "SAY" McINTOSH )
)

Appellant, )
)

vs. ) No. 84-1499-EA
)

ARKANSAS REPUBLICAN PARTY—  )
FRANK WHITE ELECTION COMMITTEE;)
CURTIS FINCH, JR., INDIVIDUALLY)
AND AS CAMPAIGN CHAIRMAN OF THE)
FRANK WHITE RE-ELECTION )
COMMITTEE; ARKANSAS STATE )
POLICE; TOMMY GOODWIN, )
INDIVIDUALLY AND AS DIRECTOR )
OF THE ARKANSAS STATE POLICE; )
NORTH LITTLE ROCK CITY POLICE )
DEPT.; BILL YOUNTS, )
INDIVIDUALLY AND AS CHIEF OF )
NORTH LITTLE ROCK POLICE DEPT.;)
JOHN DOE AND RICHARD DOE, ETC. )

)
Appellees . )

BRIEF OF APPELLANT ROBERT "SAY" McINTOSH

HORACE A. WALKER
Heller, Walker & Torrence
415 Main Place Building
415 Main Street
Little Rock, Arkansas 72201
(501) 374-3420
JACK GREENBERG 
RONALD L. ELLIS 
99 Hudson Street 
16th Floor 
New York, NY 10013



UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

REQUEST FOR ORAL ARGUMENT
Oral argument would be helpful in this case since impor­

tant issues concerning the constitutional rights are presented. 
The Court before makes a ruling concerning appellant's denial of 
admission to the fund-raising appreciation luncheon as a result 
of exercising his First Amendment rights of free expression, and 
whether the appellee's had probable cause and acted in good faith 
in arresting appellant for disorderly conduct after he sought 
admittance to the fund-raising luncheon. To properly address 
these issues, appellant respectfully requests thirty (30) minutes 
to argue and clarify the issues on appeal.



t

TABLE OF CONTENTS

Page
Request for Oral Argument i
Table of Contents ii
Table of Authorities Cited iii, iv
Preliminary Statement v
Statement of Issues vi, vii
Statement of the Case viii, ix, x
Argument

I. APPELLANT'S FIRST AMENDMENT RIGHT OF FREE
EXPRESSION WAS ABRIDGED WHEN HE WAS UNLAWFULLY 
DETAINED AND PREVENTED FROM ATTENDING THE 
APPRECIATION LUNCHEON 1

II. THE DISTRICT COURT ERRED IN FINDING THAT
THE STATE POLICE OFFICERS ACTED REASONABLY
AND IN GOOD FAITH AND THAT THEY HAD PROBABLE
CAUSE TO ARREST APPELLANT FOR DISORDERLY CONDUCT 14

Conclusion 19
Certificate of Service 20
District Court Opinion Appendix

ii



f

TA3LE OF AUTHORITIES CITED

Page
Bachella v. Maryland,

397 U.S. 564, 567 (1970) 3
Beck v. Ohio,

379 U.S. 89, 99 (1964) 15
Brown v. Hartlage,

456 U.S. 45, 47 (1982) 5, 6
Brown v. Louisiana,

383 U.S. 131 (1966) 11
Buckley v. Valeo,

424 U.S. 1 (1976) 6, 12
Caplinsky v. New Hampshire,

315 U.S. 568, 571 (1942) 5
Cohen v. California,

403 U.S. 15, 22 (1971) 3, 10, 12
Cox v. Louisiana,

379 U.S. 536 (1965) 9
Dunaway v. State of New York,

442 U.S. 200 (1979) 14
Edwards v. South Carolina,

372 U.S. 229 (1963) 9
Houser v. Hill,

278 F. Supp. 920, 928 (M.D. Ala. 1968) 5
Hudgens v. NLRB,

424 U.S. 507, 526 (1976) 3
James v. Board of Educational of Central Dist. No. 1 ,

461 F.2d 566, 575 (2nd Cir. 1972) 11
McIntosh v. Frank White, et al,

582 F. Supp. 1244, 1248 (E.D. Ark. 1984) 2
Murdock v. Penn.,

319 U.S. 105, 108 (1943) 4
NAACP v. Alabama ,

377 U.S. 288, 307 (1964) 9, 12

iii



NAACP v. Button,
371 U.S. 415, 429 (1963)

NAACP v. Clairborne,
458 U.S. 886, 993 (1982) 8,

Nesmith v. Alford,
318 F .2d 110, 119 (5th Cir. 1963) reh. 
denied, 319 F.2d 859 (5th Cir. 1963), 
cert, denied, 375 U.S. 945

New York Times Co. v. Sullivan,
376 U.S. 254, 265 (1964) 1, 5, 8,

Norwood v. Harrison,
413 U.S. 455 (1973)

Perkins v. Cross,
562 F. Supp. 85, 87 (E.D. Ark. 1983) 15,

Speiser v. Randall,
357 U.S. 513, 518 (1958) 4

Spence v. Washington,
418 U.S. 405 (1974) 3, 11,

Stromberq v. California,
283 U.S. 359, 369 (1930)

Terminiello v . Chicago,
337 U.S. 1, 4 (1979)

Thornhill v. Alabama,
310 U.S. 88 (1940)

Tinker v. Des Moines School District,
393 U.S. 503, 508 (1969 )

U.S. v. Barber,
557 F .2d 628 (8th Cir. 1977 )

U.S. v. Ganter,
436 F .2d 364 (7th Cir . 1970)

U.S. v. Strickland
490 F .2d 378 (9th Cir . 1974 )

Virginia Pharmacy Board v.
Virginia Citizens Consumer Council,

425 U.S. 748 (1976)
West Virginia Stat e Board of Education

319 U.S. 624, 639 (1943)

12

12

16

11

5

17

6

12

7

8

9

12

14

14

14

5



PRELIMINARY STATEMENT

The Honorable Henry Woods, United States District Judge 
for the Eastern District of Arkansas, rendered the decision 
appealed from. Robert "Say" McIntosh v. Frank White, et al, No. 
LR-C-82-153 .

The grounds on which jurisdiction of the Court appealed 
from was invoked pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985, 
1986, 1988 and the First, Fourth, Fifth and Fourteenth Amendments 
to the United States Constitution.

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. § 1291 appeal from a final order of a district court. The 
district court's memorandum opinion and final judgment was 
entered on March 19, 1984. See McIntosh v, Frank White, et al, 
582 F. Supp. 1244 (E.D. Ark. 1984). Appellant filed notice of 
appeal on April 16, 1984.

v



STATEMENT OF THE ISSUES

I. APPELLANT'S FIRST AMENDMENT RIGHT OF FREE
EXPRESSION WAS ABRIDGED WHEN HE WAS UNLAWFULLY 
DETAINED AND PREVENTED FROM ATTENDING THE 
APPRECIATION LUNCHEON
Bachella v. Maryland,
397 U.S. 564, 567 (1970)
Brown v. Hartlage,
456 U.S. 45, 47 (1982)
Brown v. Louisiana,
383 U.S. 131 (1966)
Buckley v. Valeo,
424 U.S. 1 (1976)
Caplinsky v. New Hampshire,
315 U.S. 568, 571 (1942)
Cohen v. California,
403 U.S. 15, 22 (1971)
Cox v. Louisiana,
379 U.S. 536 (1965)
Edwards v. South Carolina,
372 U.S. 229 (1963)
Houser v . Hill,
278 F. Supp. 920, 928 (M.D. Ala. 1968)
Hudgens v. NLRB,
424 U.S. 507, 526 (1976)
James v. Board of Educational of Central Dist. No. 1 , 
461 F .2d 566, 575 (2nd Cir. 1972)
McIntosh v. Frank White, et al,
582 F. Supp. 1244, 1248 (E.D. Ark. 1984)
Murdock v . Penn. ,
319 U.S. 105, 108 (1943 )

NAACP v. Alabama,
377 U.S. 288, 307 (1964 )
NAACP v. Button,
371 U.S. 415, 429 (1963 )
NAACP v. Cla i rbor ne ,
458 U.S. 886, 993 (1982)

vi



New York Times Co. v. Sullivan,
376 U.S. 254, 265 (1964)
Norwood v. Harrison,
413 U.S. 455 (1973)
Speiser v. Randall,
357 U.S. 513, 518 (1958)
Spence v. Washington,
418 U.S. 405 (1974)
Stromberg v. California,
283 U.S. 359, 369 (1930)
Terminiello v, Chicago,
337 U.S. 1, 4 (1979)
Thornhill v. Alabama,
310 U.S. 88 (19473 )
Tinker v. Des Moines School District,
393 U.S. 503, 508 (1969)
Virginia Pharmacy Board v.
Virginia Citizens Consumer Council,
425 U.S. 748 (1976)
West Virginia State Board of Education v, Barnett, 
319 U.S. 624, 639 (1943)

II. THE DISTRICT COURT ERRED IN FINDING THAT
THE STATE POLICE OFFICERS ACTED REASONABLY 
AND IN GOOD FAITH AND THAT THEY HAD PROBABLE 
CAUSE TO ARREST APPELLANT FOR DISORDERLY CONDUCT
Beck v. Ohio,
379 U.S. 89, 99 (1964)
Dunaway v. State of New York,
442 U.S. 200 (1979)
Nesmith v. Alford,
318 F .2d 110, 119 (5th Cir. 1963) reh. 
denied, 319 F.2d 859 (5th Cir. 1963), 
cert. denied, 375 U.S. 945
Perkins v. Cross,
562 F. Supp. 85, 87 (E.D. Ark. 1983)

U.S. v. Barber,
557 F .2d 628 (8th Cir. 1977)
U.S._v._Ganter ,
436 F.2d 364 (7th Cir. 1970)

U.S. v. Strickland,
490 F .2d 378 (9th Cir. 1974)

VI 1



STATEMENT OF THE CASE

This appeal comes to this Court from a final order and 
judgment rendered on March 19, 1984 in the United States District 
Court, Eastern District of Arkansas, Western Division, by the 
Honorable Henry Woods. The issues presented for review are (1) 
Appellant's First Amendment right of free expression was abridged 
when he was unlawfully detained and prevented from attending the 
appreciation luncheon; and (2) The District Court erred in 
finding that the State Police officers acted reasonably and in 
good faith and that they had probable cause to arrest appellant 
for disorderly conduct.

Suit was originally commenced in this action on March 1, 
1982 and an amended complaint was filed July 20 , 1982 . The 
complaint alleges that appellant's constitutional rights were 
violated under 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, 1988, 
the First, Fourth, Fifth and Fourteenth Amendments to the United 
States Constitutional after being denied entrance to the then 
Governor Frank White appreciation luncheon, and his arrest for 
disorderly conduct.

Appellant McIntosh is a black United States citizen and 
a resident of Little Rock, Arkansas. On or about February 25, 
1982, appellant along with Reverand Daniel Bowman, purchased a 
$125 ticket to attend an appreciation luncheon that was given for 
then Governor of the State of Arkansas Frank White. The luncheon 
was scheduled at the Little Rock Convention Center at noon on 
February 26, 1982. The luncheon was designed as a local fund­
raiser and was organized and financed the Frank White re-election

viii



campaign committee and the Arkansas Republican party and was 
opened to all persons who were willing to purchase a $125 ticket 
to attend. Appellant was a member of the Republican party at the 
time and purchased a ticket so that he could attend the function 
along with other ticket holders. Appellant also contacted the 
FBI and Secret Service to inform them of his intentions to attend 
the fund-raiser and to assure them that he was not going do 
anything to disrupt the proceedings and that his manner of dress 
would be his only symbol of protest.

On February 26, 1982, appellant appeared at the fund 
raising luncheon in a law abiding and orderly manner but was 
informed by defendant's Campaign Chairman Curtis Finch and State 
Police Officers Jerry Reinold and Barney Phillips of the Arkansas 
State Police that his ticket was purchased illegally and that he 
would not be allowed to attend the luncheon. None of the other 
ticket holders were refused admittance to the fund raising 
luncheon as appellant had been refused admittance. Appellant 
explained to appellees that he had lawfully purchased his ticket 
and expressed his desire to attend the luncheon as all other 
ticket holders were allowed to do. As a result of this, 
appellant was abruptly arrested, handcuffed, and hauled off to 
the North Little Rock Police Station, where he was unlawfully 
jailed, interrogated, and detained until the fund-raising affair 
was over. Appellant was detained and interrogated for over two 
hours before he was charged with any type of criminal offense and 
denied access to a telephone to call his attorney and bondsman, 
even though he repeatedly asked that he be allowed to do sc. The 

Deputy Prosecuting Attorney, Judy Kay Mason, informed appellees

ix



that they could not just hold appellant in a jail without 
charging him with any type of offense and that they must either 
charge him with an offense or let him out. Appellant was then 
charged with disorderly conduct, but the charges were dismissed 
by the North Little Rock Municipal Court. The actions of 
appellee's in denying appellant admittance to the fund-raising 
luncheon in the same manner as the other ticket holders after he 
had purchased his ticket to prevent him from exercising his right 
of freedom of expression, and unlawfully arresting, jailing and 
detaining him were a violation of his constitutional rights.

The case was tried to the Court on March 13 , 1984. By 
order and memorandum dated March 19, 1984 the Court dismissed the 
complaint of appellant McIntosh with prejudice and entered 
judgment in favor of appellees with costs assessed against 
appellant. The District Court held that none of the appellees 
deprived the appellant of any of his constitutional rights, nor 
did any of them violate the law. A copy of the Court's Opinion 
is attached as the Appendix to this brief.

Notice of appeal was filed by appellant on April 16, 
1984 pursuant to 28 U.S.C. §§ 1291 and 2107.

x



ARGUMENT
I. APPELLANT'S FIRST AMENDMENT RIGHT OF FREE

EXPRESSION WAS ABRIDGED WHEN HE WAS UNLAWFULLY 
DETAINED AND PREVENTED FROM ATTENDING THE 
APPRECIATION LUNCHEON

State Power and The First Amendment
Robert McIntosh dressed as a poor person to symbolize 

the economic conditions of the poor in America. Mr. McIntosh was 
arrested by state police when attempting to convey his message to 
Vice President Bush, Governor Frank White, and other members of 
the Republican party at an appreciation luncheon for Governor 
White. Mr. McIntosh purchased an admittance ticket to the 
luncheon for $125.

Mr. McIntosh's First Amendment rights were violated in 
connection with his detention by the State of Arkansas.

the test of state action is not the 
forum in which state power has been applied 
but whatever the forum, whether such power in 
fact has been exercised.

New York Times Co. v. Sullivan, 376 U.S. 254, 265 (1964). Mr. 
McIntosh was detained and jailed long enough, by the state 
police, to miss his opportunity to either attend the luncheon, or 
appear 'symbolically' dressed in the exhibition hall of the muni­
cipally owned Little Rock Convention. His detainment away from 
the convention center abridged his right to convey his political 
and economic message and abridged the right of other Republican 
party members to hear McIntosh's message. New York Times, supra. 
376 U.S. at 269, Virginia Pharmacy Board v. Virginia Citizens 
Consumer Council, 425 U.S. 748 (1976) (upheld the right of con­
sumers to make an informed choiced recognizing the value of com­

-1-



mercial speech). As a Republican party member, and an executive 
officer, Vice President of the Republican party, Tr. at 6, Mr. 
McIntosh in a quiet and unobtrusive way attempted to exercise the 
highest of his party membership rights for himself and fellow 
members of his political party. If the First Amendment protects 
anything, it protects political discourse.

The district court summarily dismissed the suit against 
Governor Frank White and the Director of the Arkansas State 
Police, Tommy Goodwin, and the North Little Rock Police 
Department and its Police Chief Bill Younts. Robert "Say" 
McIntosh v. Frank White, et al, 582 F. Supp. 1244, 1248 (E.D. 
Ark. 1984). The district court's decision was based on its 
conclusion that neither Finch nor White ordered the arrest of 
McIntosh. The testimony elicited from Mr. Finch, Chairperson of 
the Frank White Re-election Campaign, shows that the presence of 
McIntosh at the luncheon and the cash purchase of his ticket were 
discussed with Governor White bef ore McIntosh appeared at the 
luncheon:

Finch: I was notified that McIntosh had— had 
sent a message to the Governor, . . . and 
advising him that he was going to speak at the 
luncheon . . .  I talked to Frank White about 
it that evening . . .
The next day [at the Convention Center after 
offering McIntosh his $125 refund] . . .
1 further told him that he had notified the 
Governor in writing that he intended to 
disrupt the meeting by speaking, . . . [and] .
• • [W ]e [referring to Finch and the Governor] 
had no intention of allowing him to come in 
and disrupt the meeting by speaking. We had 
the Vice President of the United States there 
which we didn't want to make a joke out of the 
affair nor have McIntosh create a disturbance, 
so we weren't going to allow him to enter and 
I told him that. Tr. at 76-77

-2-



It is well settled that speech which is distasteful to 
some, or met by unwilling listeners is protected by the First 
Amendment. Cohen v. California, 403 U.S. 15, 22 (1971) (person 
wearing jacket insignia "F-K the draft", in opposition to Vietnam 
War protected speech), Bachella v. Maryland, 397 U.S. 564, 567 
(1970) (remanded case of arrested protestors who lay across 
street as action by police may have rested on unconstitutional 
grounds to suppress their messages in violation of First 
Amendment rights) Further, protection of First Amendment rights 
does not turn on an individual's interpretation of its constitu­
tional worth. Bachella, supra.; Spence v. Washington, 418 U.S. 
405, 413 (1974). Finch's assertion that McIntosh's dress was 
"shabby" and not "depicting" a person of modest means, Tr. at 77, 
to the degree he acted on behalf of the Governor or to the degree 
this lead to McIntosh's detainment was constitutionally imper­
missible since his opinion was only a judgment on the content of 
the message.

Whether or not a municipality forbids the use of its 
facilities for speech purposes, it may not discriminate in its 
regulation of expression on the basis of its content. Hudgens v. 
NLRB, 424 U.S. 507, 520 (1976). Content based decisions 
restricting speech activities by state officials or private per­
sons acting through state power is impermissible. Here, the 
extent to which the policy officers' actions were based on the 
message McIntosh sought to convey is clear from the context in 
which they occurred. Finch testified that he had no intention of 
allowing McIntosh to attend and "make a joke out of the affair". 
His insistence on returning the ticket cost was clearly designed

-3-



to quash the content of McIntosh's message.
In the context of taxation, the Supreme Court has often 

made it clear that it is improper for the State to use its power 
to suppress speech without meeting the requirements of the First 
and Fourteenth Amendments. Murdock v. Penn., 319 U.S. 105, 108 
(1943), Speiser v. Randall, 357 U.S. 513, 518 (1958). The legi­
timate exercise of speech rights are not to be penalized or 
encumbered without the state coming forward with 'sufficient' 
proof to justify its intrusion. Free expression is a fundamental 
personal right. Roth v. U.S. , 354 U.S. 476, 487 (1957). It is
to be protected from those forces which might seek to suppress 
because they find the speech activity 'unpopular', 'annoying' or 
distasteful. IcL 319 U.S. 116, 87 L.Ed. at 1300 , 357 U.S. at
526, 536, L.Ed.2d at 1473, 1479.

Judicial Review of First Amendment Claims
To determine if McIntosh's First Amendment rights have 

been abridged a court should "weigh the circumstances". Here, 
McIntosh was a member of the Republican party. McIntosh here 
took every precaution to advise the security persons (F.B.I., 
Secret Service) of his intent not to cause any trouble or disrup­
tion. Additionally, this luncheon was in part financed and spon­
sored by the Republican party and McIntosh was detained from 
attending. In an atmosphere of opulence, McIntosh wore simple 
clothes in quiet protest. But because of his detainment he was 
never heard. The "close analysis" appurtenant to a claim of 
abridgment of First Amendment rights was not conducted by the 
district court. Speiser, supra, 357 U.S. at 520.

-4-



The manner in which McIntosh's speech was abridged is 
likely to have a "chilling" effect on speech activities by the 
Petitioner as well as any other person who may find themselves in 
disagreement. Id. , at 526 . This Court should carefully review 
the findings of the district court because of subsequent 
"chilling" effect the district court's decision will have on the 
important right involved.

Public and private behavior must be closely scrutinizing 
for "a state may not induce, encourage or promote private persons 
to accomplish what it is constitutionally forbidden from 
accomplishing." Norwood v, Harrison, 413 U.S. 455 (1973) (State 
forbidden to lend textbooks to students attending private segre­
gated schools). Concomitantly, officials may not effectively 
abdicate their professional and public responsibility whatever 
the motive. Houser v. Hill. 278 F. Supp. 920 , 928 (M.D. Ala. 
1968 ) .

Generally, the First Amendment is applicable to the sta­
tes through the Fourteenth Amendment. Chaplinsky v. New 
Hampshire, 315 U.S. 568, 571 (1942); West Virginia State Board of 
Education v. Barnett, 319 U.S. 624, 639 (1943); Speiser, supra., 
357 U.S. at 530 ; New York Times, supra. , 376 U.S. at 283; Brown 
v. Hartlage, 456 U.S. 45, 47 (1982).

First Amendment: Free Expression
McIntosh dressed in "an old suit . . . and cowboy boots 

and razorback tie . . . like poor people dress . . . "  Tr. at 11, 
to symbolize the poor people in the state. Such criticism of 
government and official action is both clearly protected by the

-5-



First Amendment and it is a citizen's duty to utilize it. NAACP 
v. Clairborne, 458 U.S. 886, 993 (1982):

Discussion of public issues and debate on 
qualifications of candidates are integral to 
the operation of the system of government 
established by our Constitution. The First 
Amendment affords the broadest protection to 
such political expression in order to assure 
[the] unfettered interchange of ideas for the 
bringing about of political and social changes 
desired by the people.

Buckley v. Valeo, 424 U.S. 1 (1976), Roth v. U.S., 354 U.S. 476, 
484 (1957). The First Amendment guarantees political exchange of 
the broadest kind. McIntosh's attendance at the luncheon would 
have been extremely consistent with the First Amendment's pur­
poses. First his dress illuminated the conditions of the poor. 
Through his clothing he peacefully advocated social change to 
address these conditions. Discussion of poverty is a public 
issue within the comtemplation of First Amendment protection. 
McIntosh ran a breakfast program for young children and his per­
sonal knowledge would benefit other party members. Moreover, 
McIntosh attempted to invoke his First Amendment rights for the 
benefit of the encumbent Vice President and the Republican 
party's candidate for governor. Not only did McIntosh have the 
requisite reasons for utilizing his speech rights he also had an 
appropriate audience. In Buckley v. Valeo, supra. , the Court 
considered the important role money has on effective political 
contribution and expression. Similarly, McIntosh's participation 
in political activities, using the luncheon to communicate the 
issues of the poor is a fair and realistic view of an effective 
relationship between a party and its members. A "free exchange 
of ideas provides special vitality to the process of Amercian

-6-



constitutional democracy." Brown v. Hartlage, 456 U.S. 45 
(1982). Maintenance of opportunities for free political 
discussion allows government to be responsive to the will of its 
people. Free expression allows change to be obtained by lawful 
means. It's this opportunity which is essential to the stability 
of our Republican form of government. McIntosh chose to 
peaceably and unobstrusively exercise his First Amendment right. 
St.rPmkerg v. California, 283 U.S. 359 , 369 (1930 ). Because free 
expression allows government to be responsive while still main­
taining stability, it is a coveted right of citizens to be pro­
tected by states and by courts.

Our Republican form of government is based on the 
sovereignty of its citizens— the ultimate governors of the State. 
New York Times, supra, As a result, the constitutional right of 
expression is profoundly committed to national debate. That 
debate should be "uninhibited, robust, and wide-open, and . . . 
it may well include vehement, caustic and sometimes unpleasantly 
sharp attacks on government and public officials". id. at 270 . 
The First Amendment as repeatedly announced by the Supreme Court 
does not turn on the popularity of an idea. Id. at 271. That 
any person present at the luncheon might be offended by the ideas 
McIntosh sought to convey is the essence of "robust" exposure to 
new ideas. The interest of the public in an effective free 
speech right outweighs the inconvenience of an individual. Id.

Unorthodoxy is tolerated by the First Amendment. 
McIntosh was not required tc express himself in ways more fami­
liar to potentially hostile listeners. Speiser, supra., 357 U.S. 
a,_ 532 . Historically unpopular and unorthodox expression piaved

-7-



a vital and beneficial role in the history of this Nation. Id.
at 532.

A function of free speech under our system of 
government is to invite dispute. It may 
indeed best serve its high purpose when it 
induces a condition of unrest, creates dissa­
tisfaction with conditions as they are, or 
even stirs people to anger. Speech is often 
provocative and challenging. It may strike at 
prejudices and preconceptions and have pro­
found unsettling effects as it presses for 
acceptance of an idea.

Terminiello v. Chicago, 337 U.S. 1, 4 (1949). In Terminiello,
the Court upheld the speaker's rights to expression because the 
disorderly conduct statute as applied to the petitioner's conduct 
violated his right of free speech. Here, McIntosh was not being 
abusive, nor was he asserting a right to use "fighting words" 
unprotected by the First Amendment. Cohen v. California, 403 
U.S. 15, 20 (1971). Nothing in McIntosh's dress was likely to
provoke the ordinary citizen to violence. Id.

The First Amendment doctrine is particularly protective 
of political speech. Our speech rights allow for informed 
choices to be made, choices between ideas, policies and can­
didates. The right to receive information is linked to making 
informed choices. The alternative to real choice is repression. 
New York Times, supra. Certainly the Republican party's platform 
cannot be formed without significant input from each segment of 
the party. Participation in party activities is the most effec­
tive way to influence potential and encumbent candidates for 
public office.
Statutes

It is apparent that McIntosh was the only person stopped

-8-



and questioned before entering the luncheon. The decision to 
charge him under the disorderly conduct statute typifies the 
misuse of criminal statutes to unconstitutionally restrain pro­
tected speech.

In Terminiello v. Chicago. 337 U.S. 1 (1949), the court 
held that the application of a broad disorderly conduct statute 
was an unconsitution invasion of the First Amendment as applied 
to speech activities. Id. at 6. Similarly, in Edwards v. South 
Carolina, 372 U.S. 229 (1963), a conviction based upon a disor­
derly conduct statute was overturned because " . . .  a state (may 
not) make criminal the peaceful expression of unpopular views." 
See also Cox v. Louisiana, 379 U.S. 536 (1965).

Here, the district court failed to respond to McIntosh's 
First Amendment claim. It is necessary to consider factors other 
than race when inquiring into the motivation leading to
McIntosh's arrest. The record indicates that McIntosh was not 
disorderly preceding his arrest. He was detained because of his 
views and his manner of expressing those views. His detainment 
was unconstitutional and a violation of his First Amendment
rights.

Strong policy reasons demand that broadly written statu­
tes be examined as applied where the exercise of important
constitutional freedoms are called into jeopardy. The ".
freedom of speech . . . guaranteed by the Constitution embraces
at least the liberty to discuss publicly and truthfully all mat­
ters of public concern without previous restraint or fear of 
subsequent punishment." Thornhill v. Alabama, 310 U.S. 88, 101, 
102 (1940) (emphasis added) Legitimate government purposes can­

-9-



not be pursued by regulations that unnecessarily invade an area 
of protected freedom. Nor can government pursue its purposes by 
means which stifle fundamental liberties. NAACP v. Alabama, 377 
U.S. 288, 307 (1964). Enforcing this law penalizes McIntosh for 
his attempted assertion of his right and not for criminal 
disorder. Merely fearing disorder is an insufficient reason to 
abridge First Amendment rights. Cohen v. California, supra., 403 
at 23 (1973), Tinker v. Des Moines School District, 393 U.S. 503, 
508 (1969).

Statute: Political Practices Act
The Arkansas statute leading to the revocation of

McIntosh's ticket reads, in pertinent part:
3-1113. Records of contributions and
expenditures.
A candidate, a political party, or person 
acting in and candidate's behalf shall keep 
records of all contributions and expenditures 
in a manner sufficient to evidence compliance 
with Sections 3 and 4 [§§ 3-1111, 3-1112] of
this Act. Such records shall be made
available to the Prosecuting Attorney in the 
district in which the candidate resides who is 
hereby delegated with the responsibility of 
enforcing this Act.
3-1116. Cash contributions and expenditures 
restricted— Writings required.
No campaign contribution in excess of One 
Hundred Dollars ($100.00) or expenditure in 
excess of Fifty Dollars ($50.00) shall be made 
or received in cash. All contributions or 
expenditures in behalf of a campaign activity, 
other than in-kind contributions and expen­
ditures, in excess of the aforementioned 
amounts, shall be made by a written instrument 
containing the name of the donor and the name 
of the payee.
First, the statute requires the candidate's officials to

-10-



keep records of all contributions. Further, the statute requires 
that donations of $100 or more be made by written instrument. 
While it appears that this statute was technically violated, it 
is clear that the statute was not the basis for Finch's concern 
nor the avowed reason for preventing McIntosh's attendance. The 
police testified that after discussing the probable attendance of 
Mr. McIntosh at the luncheon, they decided to use the disorderly 
conduct statute as their excuse to arrest him if he tried to 
attend the luncheon. No mention was made of arresting McIntosh 
for an illegal campaign contribution. Tr. at 94. In reality, 
McIntosh was not arrested for illegally paying in cash, or for 
disorderly conduct. Instead the statutes were used as convenient 
tools to restrain Mr. McIntosh. These actions strike at the 
heart of Mr. McIntosh's First Amendment claim. The ". 
danger of unrestrained discretion . . . [ is ] . . . such that the
will of the transient majority can prove devestating to freedom 
of expression." James v. Board of Education of Central Dist. No. 
1̂, 461 F.2d 566, 575 (2nd Cir. 1972). The testimony of the
police officer arresting Mr. McIntosh indicates that any attempt 
by McIntosh to enter the luncheon was going to be resisted, Tr. 
at 107. If a reason had to be given, disorderly conduct would be 
claimed. Nowhere was it mentioned that the Political Practices 
Act was a justification for resisting McIntosh's attendance.

Symbolic Speech
The protection of First Amendment rights of expression 

extends beyond the spoken word. The First Amendment aims at pro­
tecting effective communication of ideas. Tinker v. Des Moines,

-11-



393 U.S. 503 (1969 ), Spence v. Washington, 418 (J.S. 405 (1974),
Brown v. Louisiana, 383 U.S. 131 (1966), New York Times, supra.

Robert McIntosh was dressed in a manner to convey the 
plight of poor people. In a luncheon evidenced by its opulance 
he wished to recognize the poor by bringing their condition to 
the attention of Vice President Bush. McIntosh's visual symbol 
is as protected as the spoken word. Spence v. Washington,
supra., 418 U.S. at 410. His mode of expression falls within the 
purview of conduct which has been held protected by the Supreme 
Court. Spence v, Washington, supra. (statute proscribing
attaching symbols to U.S. Flag a crime, infringed protected 
expression as applied to displayer of flag), Cohen v. California, 
supra. ('F-K the Draft' slogan on jacket, protected). Tinker v.
Des Moines Indep. School Dist, supra. (Student's right to wear 
black armband in opposition to war upheld.)

In addition to conduct the Supreme Court has recognized 
association as a legitimate form of expression. Buckley v.
Valeo, 424 U.S. 1 (1976) (campaign contribution form of political 
expression). NAACP v. Alabama. (registration of NAACP members 
violation of right of expression). In the interest of a free 
exchange of ideas the Supreme Court has consistently upheld
abstract forms of expression and discussion. NAACP v.
Clairborne, 458 U.S. at 910; NAACP v. Button, 371 U.S. 415, 429 
(1963). The communicative element of the speaker's action is
protected speech. The acts do not have to meet any subjective
perceptions or decorum or acceptability NAACP v. Clairborne, 458 
U.S. at 911. And of course, a person may not be punished for

expressing his or her view in words or through abstraction.

-12-



McIntosh's dress falls easily into the area of protected speech.

-13-



II. THE DISTRICT COURT ERRED IN FINDING THAT THE STATE 
POLICE OFFICERS ACTED REASONABLY AND IN GOOD FAITH 
AND THAT THEY HAD PROBABLE CAUSE TO ARREST McINTOSH 
FOR DISORDERLY CONDUCT

The district court erred in finding that the police 
officers acted reasonably, in good faith and that they had pro­
bable cause to arrest McIntosh for disorderly conduct. The defi­
nition of the crime of disorderly conduct appears in Ark. Stat. 
Ann. 41-2901 (1977), where it is stated:

(1) A person commits the offense of disor­
derly conduct, if, with the purpose to cause 
public inconvenience, annoyance or alarm, or 
recklessly creating a risk thereof, he:
. . . (d) Disrupts or disturbs any lawful
assembly or meeting of persons; or
. . . (f) congregates with two (2) other per­
sons in a public place and refuses to comply 
with the lawful order to to disburse of a law 
enforcement officer or other persons engaged 
in enforcing or executing the law . . .

Probable cause in this context means:
Such a state of facts known to the prosecutor,
. . . as would induce a man of ordinary 
caution and prudence to believe, and did 
induce the prosecutor to believe, that the 
accused was guilty of the crime alleged, and 
thereby cause the prosecution.
Within these definitions, the officers had no probable 

cause to believe that McIntosh had engaged in or was guilty of 
the crime that cause his arrest. McIntosh was arrested by the 
State police officers, Reinold and Phillips, as he was standing 
m  the public lobby requesting that he be allowed to attend the 
appreciation dinner since he had purchased his ticket to do so. 
Be was arrested despite the fact that he was neither loud nor 
-disruptive at any time during his conversation with Finch,



Reinold, and Phillips. Tr. at 52. Officer Phillips testified at 
trial that appellant was arrested solely for requesting that he 
be allowed in the luncheon and refusing to leave the lobby area, 
an area open to the public. Tr. at 147. Ms. Alyson Lagrossa, a 
reporter for the Arkansas Democrat, who was assigned to cover the 
luncheon, testified that she was present when McIntosh arrived at 
the luncheon and was refused admittance by Finch, Reinold and 
Phillips. Her testimony confirmed that at no time was McIntosh 
loud or disruptive prior to his arrest and that he did not use 
abusive or profane language in addressing Finch and the officers 
when requesting that he be allowed in. Tr. at 52.

An arrest is not constitutionally valid unless probable 
cause exists to make it valid. The constitutionality of 
warrantless arrests depends on whether at the moment of the 
arrest, the facts and circumstances within the arresting 
officer's knowledge are sufficient to warrant a prudent man to 
believe that the arrestee had committed or was committing a cri­
minal offense. D.S. v. Strickland, 490 F.2d 378 (9th Cir. 1974); 
Dunaway v. State of New York, 442 U.S. 200 (1979). A deter­
mination of probable cause for arrest does not rest upon a tech­
nical framework, but rather a consideration of the entire body of 
facts and circumstances existing at the time of the arrest. U.S. 
v. Ganter, 436 F.2d 364 , 369 (7th Cir. 1970). In Ark, Stat. 
43-403 (1977), which provides the grounds for a warrantless 
arrest, the police officer must have reasonable grounds for 
believing that the person arrested has committed a felony, and 
these "reasonable grounds" are the equivalent of probable cause. 
U.S. v. Barber, 557 F.2d 628 (8th Cir. 1977).



In the case at bar, the officers had no probable cause 
to believe that McIntosh had engaged in a crime to justify his 
arrest. His behavior was not threatening or loud. He had 
notified authorities of his intention to make symbolic protest, 
i.e. dressing in rags to represent the poor people. No one 
stated a dress code and no reference was made to one on the 
ticket. Tr. at 142. The particular mode of dress simply was not 
an issue. When approached by the officers, he did not create a 
scene or act in any way to warrant suspicion by the officers that 
he had committed or would commit any disruptive act. The offi­
cers merely arrested McIntosh without questioning his motives or 
waiting for sufficient probable cause to arrest him. In view of 
the entire factual record, i.e. McIntosh's writing a letter 
stating his form of peaceful protest, his purchase of a $125 
ticket; his assurance to the Secret Service that he was not going 
to do anything to disrupt the proceeding and that his manner of 
dress would be his only symbol of protest, Tr. at 36; and his 
lack of disorderly conduct, the circumstances do not support pro­
bable cause sufficient to arrest.

While courts assume that officers act in good faith in 
arresting, this presumption is not sufficient to establish the 
validity of an arrest without a warrant. If this subjective test 
were sufficient alone, the protections of the Fourth Amendment 
would be diminished and individual protection would be left to 
the discretion of the police. Beck v. Ohio, 379 LJ.S. 89, 99 
(1964 ). Consequently, more than a good faith arrest must be 
found on the part of the officers. Good faith must be grounded 
in reasonableness and supported by probable cause. Perkins v.

-16-



Cross, 562 F. Supp. 85, 87 (E.D. Ark. 1983 ). In light of the
facts, circumstances, and relevant testimony, there was not suf­
ficient probable cause to arrest McIntosh, and the officers acted 
unreasonably in the arrest.

In the instant case, the district court clearly erred in 
finding that McIntosh's past behavior and letter to Governor 
White gave the officers probable cause to believe that he would 
disrupt the luncheon, and therefore had a right to arrest him. 
The evidence demonstrates that McIntosh's behavior gave the offi­
cers no probable cause to arrest. As Officer Phillips testified 
at trial "he was not loud or disruptive at any time prior to his 
arrest." Tr. 147. It appears that the Court is saying that 
McIntosh's past "criminal status" justifies the arrest. However, 
this form of preventive detention is unlawful and unconstitu­
tional .

In cases of false imprisonment, lack of malice, presence 
of good faith, or presence of probable cause does not affect the 
existence of the wrong if the detention is unlawful. Nesmith v. 
Alford, 318 F .2d 110, 119 (5th Cir. 1963) reh. denied, 319 F.2d 
859 (5th Cir. 1963), cert, denied, 375 U.S. 945 . The only cri­
teria necessary to establish false imprisonment is that an indi­
vidual have his liberty restrained under the "probable imminence 
of force without any legal cause or justification." Id. at 128. 
The actions of the police officers in arresting McIntosh and 
detaining him for over two hours consititutes false arrest and 
malicious prosecution because the officers failed to act with 
probable cause and in good faith. Furthermore, there is no doubt 
as to the total lack of legal justification for the arrest.

-17-



There was no disorderly conduct or disturbance at any point prior 
to the arrest to justify arresting McIntosh for his peaceful, 
legal and constitutionally protected actions. Nesmith v. Alford, 
318 F .2d at 120.

The testimony shows that McIntosh was arrested and taken 
all the way to North Little Rock. He was detained there for 
nearly two hours before being charged with a crime until the 
fundraising affair, to which he had a ticket, was over. The 
testimony of Judy Kaye Mason, who was the North Little Rock 
Prosecuting Attorney at the time, indicated that she observed 
McIntosh being held in jail without being charged, and she told 
Officers Reinold and Phillips that they had to book McIntosh or 
let him go. She also testified that this was the first time she 
had ever heard of a situation where the arresting officers 
arrested a person in Little Rock and took him all the way to 
North Little Rock to be detained. Tr. at 58, 59, 61. All of the 
above actions prevented McIntosh from attending the fundraising 
dinner and leads to the conclusion that the officers acted 
unreasonably, in bad faith, and without probable cause to arrest 
the appellant. These actions were malicious, willful and without 
legal justification, thus depriving McIntosh of his constitu­
tional rights. The District Court clearly erred in finding 
otherwise. Perkins v. Cross, 562 F. Supp. 85 , 87 (E.D. Ark.
1983 ) .

-18-



CONCLUSION

For the above reasons, the decision of the District
Court finding that none of the appellees deprived the appellant
of any of his constitutional or federally protected rights, nor
did they any violate any law, should be reversed. The Court is
asked to reverse this erroneous ruling and remand this case to 
the District Court with instructions to enter judgment in favor
of the appellant, and to award costs and reasonable attorney's
fees.

Respectfully submitted,
HELLER, WALKER & TORRENCE 
415 Main Place Building 
415 Main Street 
Little Rock, Arkansas 72201 
(501) 374-3420
JACK GREENBERG 
RONALD L. ELLIS 
99 Hudson Street 
16th Floor 
New York, NY 10013

By:
/ 'Horace A. Walker

-19-



CERTIFICATE OF SERVICE
I, Horace A. Walker, hereby certify that I have on this

2nd day of July, 1984 , served by mailed a copy of the foregoing 
to Ms. Mary Stallcup, Asst. Attorney General, Justice Building, 
Little Rock, Arkansas 72201, Mr. James M. McHaney, 1021 First 
Commercial Building, Little Rock, Arkansas 72201, and Mr. Terry 
Ballard, 2115 Main Street, North Little Rock, Arkansas 72114.

-20-



1244 5 8 2  F E D E R A L  S U P P L E M E N T

See S ru ly k  v. Heckler, 575 F.Supp. 1266, 
1268 (N.D.111.1984) (“... to Bimply declare 
that plaintiffs complaints of pain were ‘not 
entirely credible,’ without further explana­
tion, constitutes error on the part of the 
AU.”) Finally, plaintiff testified that he 
has problems with his grip and has offered 
to this court medical evidence which sup­
ports the existence of tunnel carpal syn­
drome. Considered as a whole, the record 
indicates that plaintiff s physical limitations 
sufficiently compromise his ability to do 
basic work activities. The requisite level 
of impairment severity has been met.

Conclusion

The cross motions for summary judg­
ment are denied. This case is remanded £o 
the Secretary for further proceedings con­
sistent with this opinion. The Secretary is 
to take the next steps in the sequential 
evaluation mandated by the regulations.

(O f «[VMUMBf«SYSTlM>

Robert “Say” McINTOSH, Plaintiff,
v.

Frank WHITE, Individually and as Gov­
ernor of the State of Arkansas, Arkan­
sas Republican Party— Frank White 
Election Committee, Curtis Finch, Jr., 
Individually and as Campaign Chair­
man of the Frank White Re-Election 
Committee, Arkansas State Police; 
Tommy Goodwin, Individually and as 
Director of the Arkansas State Police, 
North Little Rock City Police Depart­
ment, Bill Younts. Individually and as 

■ Chief of North Little Rock Police De­
partment, John Doe. and Richard Roe, 
etc., Defendants.

No. LR-C—82-153.
United States District Court,

E.D. Arkansas.. W.D
March 19, 1984.

Black plaintiff who was excluded from 
political luncheon brought civil rights ac­

tion which included state law claim for 
false arrest or malicious prosecution. The 
District Court, -Henry Woods, J., held that 
(1) with regard to plaintiffs exclusion from 
political luncheon held at city convention 
center, there was no significant involve­
ment of state sufficient to meet section 
1983 requirefnent of state action; (2) in 
determining that plaintiff should be exclud­
ed from luncheon which was a purely pri­
vate event, chairman of campaign commit­
tee acted reasonably and in good faith and 
solely as a private person, and thus actions 
of chairman did not violate plaintiffs con­
stitutional rights; (3) evidence was insuffi­
cient to support allegation that exclusion 
constituted purposeful discrimination on 
basis of plaintiffs race; and (4) plaintiff 
faded to state claim for false arrest or 
malicious prosecution, where officers who 
arrested plaintiff for disorderly conduct 
upon his exclusion from luncheon had prob­
able cause and acted in good faith.

Order accordingly.

1. Civil Rights ®=13.5(2, 4)
A plaintiffs claim under section 1983 

must be based upon proof that actions of 
defendant deprived him of a right secured 
by Cocstitution or laws of the United 
States, while defendant was acting under 
color of state law; statute does not reach 
purely private conduct. 42 -U.S.C-A. 
§ 1983
2. Civil Rights «=13.5(2)

In order to establish state action, plain­
tiff mast establish a close nexus between 
challenged conduct and the state, so that 
the state can be said to have a significant 
involvement in the activity.
3. Civil Rights ®=13.5(4)

There was no ’significant involvement 
of state sufficient to meet section 1983 
requirement of state action with regard to 
incident in which black plaintiff was barred 
entry to political luncheon held at conven-



M cIntosh v . white 1245
C ltt u  K 2  F « u p p . 1244 (1964)

tion -center owned by dty, where city al­
lowed persons to rent center for private 
functions and to exclude members of public 
as they wished, and reelection campaign 
committee and political party which organ­
ized the luncheon were private organiza­
tions. 42 U.S.C.A. § 1983.
4. Constitutional Law ©=90.1(4)

Fact that a private function is held at a 
public facility does not render the activity 
or the function itself a public forum for aU 
speakers, trespassers, or uninvited guests, 
regardless of the facility’s other potential 
uses as a public forum.
5. Civil Rights £=>13.5(4)

Although a political party’s function in 
holding election primaries or other clearly 
public functions may meet a liberal “state 
action” requirement, in its function of fund 
raising and campaigning, party is clearly 
private.
6. Civil Rights <8=13.5(2)

In determining whether state action 
exists, court must look to specific activity 
which is subject of the lawsuit and not to 
unrelated activities.
7. Civil Rights ©=13.4(1), 13.5(4)

Actions of chairman of campaign com­
mittee in refusing to accept proffered cam­
paign donationv thereby excluding black 
plaintiff from political luncheon, did not 
violate plaintiffs constitutional rights so 
as to establish a section 1983 cause of 
action, since chairman acted reasonably 
and in good faith and solely as a private 
person. 42 U.S.C.A. § 1983.
8. Conspiracy «=7.6

Actions of chairman of campaign com­
mittee and others in excluding black plain­
tiff from political luncheon did not consti­
tute invidious class-based discrimination, 
as required by section 1983, in view of fact 
that others of black race were allowed ad­
mission to the luncheon. 42 U.S.C.A 
§ 1983.
9. Civil Rights ©=13.4(6)

In order to succeed in a section 1981 
action based on racial discrimination, plain­

tiff must show purposeful discrimination. 
42 U.S.C.A. § 1981.
10. Civil Rights ©=13.13(3)

Evidence in section 1981 action alleg­
ing that defendants’ exclusion of black 
plaintiff from political luncheon constituted 
discrimination was insufficient to support 
plaintiffs allegation that conduct of de­
fendants in excluding him was purposeful 
and based upon his race. 42 U.S.C.A.
§ 1981.
11. Conspiracy ©=19

Evidence in civil rights action brought 
by black plaintiff who was excluded from 
political luncheon faded to' establish that 
exclusion was based upon some racial, or 
otherwise class-based invidiously discrimi­
natory animus, as required by section 1985. 
42 U.S.C.A. § 1985.
12. Conspiracy «=13

If plaintiff is not able to state or prove 
a claim under section 1985, a derivative 
Claim under section 1986-tnust fail as well. 
42 U.S.C.A. §§ 1985, 1986.
13. False Imprisonment ®=10, 13 

Malicious Prosecution «=18(2)
In order to establish a cause of action 

for false arrest or malicious prosecution 
under pendent tort claims raised in civil 
rights action brought by black plaintiff 
who was arrested for disorderly conduct 
following his exclusion from political lunch­
eon, plaintiff was required to show that 
police officers who effected arrest were not 
acting in good faith and upon probable 
cause.
14. False Imprisonment «=13 

Malicious Prosecution «=24(2)
- Fact that plaintiff who brought action 
against police officers for arrest and mali­
cious prosecution was officially acquitted 
of charge of disorderly conduct was not in 
and of itself sufficient to establish that the 
officers acted without probable cause.
15. False Imprisonment ®=13 

Malicious Prosecution ©=18(1 >
Under Arkansas lav.. probable cause in

context of a false arrest or malicious prose-



1246 582 federal supplement
cution case means such a state of facts 
known to the prosecutor as would induce a 
man of ordinary caution and prudence to 
believe, and did induce the prosecutor to 
believe, that accused was guilty of the 
crime alleged, and thereby caused the pros­
ecution.
16. False Imprisonment «=20(1)

Where plaintiff failed to show that po­
lice officers who arrested him for disorder­
ly conduct acted without probable cause or 
in bad faith, plaintiff failed to state a claim 
for false arrest.

Horace A. Walker, Little Rock, Ark., for 
plaintiff.
Mary Stallcup, Asst. Atty. Gen., State of 

Ark., Little Rock, Ark., for defendants.
James M. McHaney, Little Rock, Ark., 

for Curtis Finch, Jr.
Walter Paulson, Jr, Little Rock, Ark., 

for Frank White.̂
Jim Hamilton, City Atty., No. Little 

Rock, Ark., for North Little Rock Police.
FINDINGS OF FACT AND 
CONCLUSIONS OF LAW

HENRY WOODS, District Judge.
FINDINGS OF FACT

1. The plaintiff, Robert “Say” McIntosh 
is a United States citizen and a resident of 
Little Rock, Pulaski County, Arkansas. He 
î a member of the black race.
2. ' Defendant Frank White was during 

the time frame relevant to this lawsuit 
Governor of the State of Arkansas and 
titular head of the Arkansas Republican 
Party. In February, 1982 he was a candi­
date for reelection.
3. Defendant Curtis Finch, Jr. was at 

all times material to this action chairman of 
the Frank White Re-Election Campaign 
Committee. He was charged with the ex­
ecutive control of the Frank White Re-Elec­
tion Campaign Committee and thereby ex­
ercised the executive authority over its 
fund-raising activities He is a citizen of

Arkansas and holds no public office in the 
State of Arkansas.
4. Defendants Jerry Reinold and Bar­

ney Phillips are police officers of the Ar­
kansas State Police and as such are 
charged with the responsibility for enforce­
ment of the criminal laws of the State of 
Arkansas.
5. A Governor Frank White Apprecia­

tion Luncheon was scheduled to be held at 
the Little Rock Convention Center at noon 
on February 26; 1982. The Little Rock 
Convention Center is owned and operated 
by the City of Little Rock.
6. The Center is comprised of several 

.exhibit halls and other areas which are 
available for rent for the conduct of public 
or private functions, and it is a regularly 
accepted practice to charge admission 
prices for the functions held therein and to 
exclude persons who have not paid an ad­
mission price.
7. The City of Little Rock does not in­

volve itself in private .functions nor does it 
require organizations holding private func­
tions in the Center to hold them open to the 
public.
8. The Governor Frank White Apprecia­

tion Luncheon was designed as a fund rais­
er and was organized and financed by the 
Frank White Re-Election Campaign Com­
mittee and the Republican Party. The 
luncheon was open to those supporters of 
Mr. White who were willing to make a 
$125.00 campaign contribution in return for 
a ticket to the luncheon.
9. Vice President George Bush ap­

peared as the featured speaker at the 
luncheon.
10. The luncheon was in all respects a 

private function, and admission was limited 
to ticket holders only.
11. On February 25, 1982 Reverend 

Daniel Bowman, accompanied by Mr. Rob­
ert “Say” McIntosh, purchased a ticket 
from the Campaign Committee, paying for 
the ticket in cash. It is not clear on whose 
behalf the ticket was purchased, but Mr. 
McIntosh and Rev. Bowman stated that



1247M cIntosh ▼. white
C tu  u  5*2 F S u p jk  1144 (19M )

they both contributed toward the purchase 
price.
12. On that same day Mr. McIntosh 

sent a letter to then Governor Frank White 
in which he stated that Mr. McIntosh in­
tended to speak at the luncheon and re­
quested that Governor White inform him 
whether he should speak before or after 
the Vice President
13. A previous series of written and 

published statements indicated that Mr. 
McIntosh was both personally and political­
ly opposed to Mr. White and to his candida­
cy for governor.
14. Finch was concerned over the pur­

chase of a ticket with an amount tendered 
in cash, which could not be accepted in 
their belief because the amount exceeded 
that authorized by law for cash contribu­
tions under the Political Practices Act, Ark. 
StatiAnn. § 3-1116. In view of plaintiffs 
past history, Finch was also concerned that 
plaintiff would disrupt a meeting at which 
the Vice President was the featured speak­
er.
15. The Secret Service had similar con­

cerns and called in Mr. McIntosh and se­
cured an agreement that he would not ap­
proach the head table where the Vice Presi­
dent would be seated and would not inter­
rupt the latter’s speech. McIntosh left the 
definite impression with the Secret Service 
agent that he planned to speak at the meet­
ing but would speak from his seat.
16. At approximately 11:00 a.m. Mr. 

McIntosh tame to the Convention Center 
and sought admission to the luncheon. Mr. 
Curtis Finch, accompanied by Sergeants 
Remold and Phillips, members of the State 
Police and of the Governor’s security’ force, 
met Mr. McIntosh at "the door. Mr. Finch 
informed Mr McIntosh that his ticket had 
been purchased in cash, in violation of the 
Political Practices Act, and that he would 
not be admitted to the function. Mr. Finch 
repeatedly tendered a refund and explained 
to Mr. McIntosh that he w'ould not be al­
lowed to enter the luncheon and asked him 
to leave the premises.

17. Mr. McIntosh on each occasion 
when asked to accept a refund refused and 
stated that he intended to enter the lunch­
eon. Sergeant Remold then identified’him­
self and Sergeant Phillips and told Mr. 
McIntosh that the luncheon was a private 
function, that Mr. Finch would not accept 
his ticket, ■ and that Mr. McIntosh yvas 
therefore requested to leave and would be 
required to do so.
18. When Mr. McIntosh refused to 

Teave, Sergeant Remold informed him that 
he' would be arrested for creating a distur­
bance if he failed to leave the premises. 
Mr. McIntosh replied, “Well, take me to 
jail.”
19. Mr. McIntosh was thereupon arrest­

ed at 11:27 A.M., according to the State 
Police Radio Log, and escorted out of the 
building by Sergeants Reinold and Phillips. 
As he was leaving via the escalator, he 
yelled to the entering ticket holders, "You 
peckerwoods, I shall return.”
20. The officers took Mr. McIntosh to 

the North Little Rock jail because the Lit­
tle Rock jail policy prohibited acceptance of 
prisoners from outside law enforcement of­
ficers. He arrived there at 11:36, accord­
ing to the State Police Radio Log.
21. At the North Little Rock jail, Mr.' 

McIntosh' was charged with disorderly con­
duct, questioned, booked and released on 
his own recognizance at 1:16 P.M., accord­
ing to the records of the North Little Rock 
Police Department. There was no inordi­
nate delay in booking and releasing plain­
tiff. The short delay was caused by two 
other individuals being booked ahead of 
him and the unfamiliarity of the State Po­
lice officers with the paper work required 
by the North Little Rock Police Depart­
ment.
22. There is no credible evidence that 

any pf the actions by any of the defendants 
taken against Mr. McIntosh were based 
upon his race. There were 25-40 blacks in 
attendance at the luncheon.
23 The actions taken by Mr. Curtis 

Finch were in his capacity as a private



' * t x* *s, 4;'**

1248 5 8 2  F E D E R A L  S U P P L E M E N T

citizen, serving as Chairman of the Frank 
White Re-Election Campaign Committee.
24. The actionB taken by Sergeants Rei- 

nold and Phillips, -while they were acting in 
their capacities as officers of the Arkansas 
State Police, were taken reasonably and in 
a good faith effort to perform their duties 
as law enforcement officers.
25. Sergeants Reinold and Phillips ar­

rested Mr. McIntosh because they believed 
in good faith that he had committed the 
misdemeanor of disorderly conduct in their 
presence, both by refusing to leave the 
premises and by refusing to comply with a 
lawful order of a law enforcement officer.
26. There is no evidence that any action 

taken by Sergeants Reinold or Phillips 
were based upon Mr. McIntosh’s race.
27. The Court finds no evidence, either 

direct or circumstantial, indicating that 
these police officers conspired with any 
other person to prevent Mr. McIntosh from 
attending the luncheon, nor were they told 
in advance to arrest Mr. McIntosh. From 
the evidence, it appears that they were 
warned that Mr. McIntosh would present 
himself and demand entry for the purpose 
of disrupting the luncheon, but that they 
were Dot to arrest him unless he violated 
the law.

CONCLUSIONS OF LAW
1. At the close of plaintiffs evidence, 

the Court dismissed the complaint as to 
Governor White, State Police Superintend­
ent Tommy Goodwin, and North Little 
Rock Chief of Police Robert Younts. The 
plaintiffs proof faded to connect those indi­
viduals with this episode in .any manner. 
Governor White did receive communica 
tkms from the plaintiff, but there is no 
testimony that he ordered plaintiff s arrest 
or was present when he was arrested. The 
Court has jurisdiction of the various causes 
of action under the statutes alleged, includ­
ing the First, Fourth, Fifth, Thirteenth and 
Fourteenth Amendments to the United 
States Constitution. 42 U.S.C. §§ 1981, 
1983, 1985, 1986 &Dd 1988. The Court has 
jurisdiction over the common-law claims un­
der its pendent jurisdiction because the two

claims derive from a common nucleus of 
operative facts and the plaintiff would ordi­
narily be expected to try his claims in one 
proceeding. U nited  M ine W orkers v. 
Gibbs, 383 U.S. 715, 86 S.Ct 1130, 16 
L.Ed.2d 218 (1966).
[ 1 ] 2. The plaintiffs claims under 42 

U.S.C. § 1983 must be based upon proof 
that the actions of the defendants deprived 
him of a right secured by the Constitution 
or laws of the United States, while that 
defendant wTas acting under color of state 
law. D ai'is v. Paul, 505 F.2d 1180 (6th 
Cir.), reversed on other grounds 424 U.S. 
693 (1974). The statute does not reach 
purely private conduct. See, e.g., B raden  
v. Texas A & M U n iversity  S ystem s, 636 
F.2d 90 (5th Cir.1981).
[2] 3. In order to establish state ac­

tion, the plaintiff must establish a close 
nexus between the challenged conduct and 
the state, so that the state can be said to 
have a significant involvement in the activi­
ty. R en dell-B aker v. Kohn, 457 U.S. 830, 
102 S.Ct. 2764, 73 L.Ed.2d 418 (1982).
[31 4. Based upon the facts as present­

ed, the Court finds no significant involve­
ment of the state that is sufficient to meet 
the requirements to show state action, in 
barring entry to the luncheon. Although 
the facility is publicly owned, it is owned by 
the city' and the city is not a party to this 
proceeding. Further, the city allows per­
sons to rent it for private functions to 
exclude members of the public more or less 
as they wish, as for example for failure to 
pay an admission price. The Court ex­
pressly finds that the city does not require 
by contract or otherwise private groups 
making use of the facility to grant access 
to all members of the public. In fact, to do 
so would substantially restrict the useful­
ness of such facilities, since many private 
groups hold functions for which they 
charge admission and for which they must, 
as a matter of logic and economic necessi­
ty, deny admission tcrxhose who have not 
paid the admission price



McLNTOSH v. WHITE J2 4 9
CU« M M2 f S u p p  1244 (1944)

[4] 6. The fact that a private function 
is held at such a facility, regardless of the 
facility’s other potential uses as a public 
forum, does not render the activity or the 
function itself a public forum for all speak­
ers, trespassers or uninvited guests. H a r­
low  v. F itzgera ld , 457 U.S. 800, 102 S.Ct. 
2727 , 73 LEd.2d 396 (1982); Green v. 
White, €93 F.2d 45 (8th Cir.1982).
6. The proof adduced at trial indicated 

that the Frank White Re-Election Cam­
paign Committee was a private organiza­
tion, which existed solely for the purpose 
of directing the campaign of Frank White 
and raising funds pursuant to that effort. 
There was no direct involvement by the 
state or by any governmental entity.
[5,6] 7. The Arkansas Republican 

Party is also private for the purposes of 
this litigation. It may be that in the Re­
publican Party’s function in holding elec­
tion primaries or other clearly public func­
tions, the Republican Party could arguably 
be said to meet a liberal “state action” 
requirement However, in its function of 
fund raising and campaigning, the party is 

. clearly private. As the court held in Ren- 
dell-B aker, su pra , the court in determining 
whether state action exists must look to 
the specific activity’ which is the subject of 
the lawsuit and not to unrelated activities.
8. The facts establish that Mr. McIn­

tosh purchased a ticket to the luncheon in 
cash, which was at least a technical viola­
tion of the Arkansas Political Practices 
Act, Ark.Stat.Ann. § 3-1116. That law 
provides that no campaign -contribution in 
excess of $100.00 can be made in cash. Mr. 
Finch had a right and â egal duty to abide 
by that statute and was reasonable in di­
recting the refund of the cash contribution 
after it was mistakenly accepted.
17] 9. Mr Finch did not consider the 

plaintiff a campaign supporter, and as a 
private citizen in the exercise of his First 
Amendment rights to campaign for high 
public office, he was free to accept or re 
fuse to accept a proffered campaign dona­
tion. Mr. Finch chose to refuse, and the 
Court does not find that this refusal

amounted to a violation of the plaintiffs 
constitutional rights.
10. Mr. Finch, acting in his capacity as 

Chairman of the Campaign Committee, was 
also reasonable in attempting to tender a 
return of the cash donation to the plaintiff 
and it cannot be said that as a private party 
he violated the constitutional rights of the 
plaintiff in excluding him from Jhe lunch­
eon.
11. Mr. Finch had been placed on notice 

by Mr. McIntosh that he intended to speak 
at the luncheon, and the Court finds that 
Mr. McIntosh’s previous activities as they 
related to Governor White clearly indicated 
that he would have been most uncompli­
mentary and disruptive. In determining 
that Mr. McIntosh should be excluded from 
a purely private event, Mr. Finch therefore 
acted reasonably and in good faith and 
solely as a private person. Plaintiff has 
cited no cases, and the Court-, knows of 
none, that support the proposition that Mr. 
McIntosh had a constitutional right to en­
ter and disrupt the luncheon.
12. In fact, to the Contrary, while free­

dom of expression iE a fundamental right, 
the courts recognize the necessity of pre­
venting flagrant abuses of such rights by- 
individuals who would utilize no self-re­
straint in exercising such a right. P ocket 
Books, Inc. v. Walsh, 204 F.Supp. 297 
(D.Conn.1962); L lo y d  Corp. v. Tanner, 407 
U.S. 551, 567-68, 92 S.Ct 2219, 2228, 33 
L.Ed.2d 131 (1972).
13. Based upon the reasoning of the 

foregoing cases, it is clear that the only 
constitutiona] right owed to Mr. McIntosh 
was his right to rent the facility from the 
city on an equal basis with the defendants, 
and there is no allegation that he was de­
nied that access. He was not free to im­
pose himself upon the listeners at the Ap­
preciation Luncheon who had come to hear' 
the Vice President of the United States.
[8] 14. Although the plaintiff com­

plains that the actions taken byr these de­
fendants were on the basis of his race, the 
proof clearly shows that others of the black 
race were allowed admission to the Appre



1250 6 8 2  F E D E R A L  S U P P L E M E N T

ciation Luncheon. While this fact is not 
conclusive on the issue of racial motivation, 
it is at least persuasive circumstantial evi­
dence that race was not the deciding factor 
in the decision to exclude Mr. McIntosh. 
The evidence adduced on this point raises a 
requirement on the part of Mr McIntosh to 
establish by direct or circumstantial evi­
dence some basis for asking the Court to 
conclude that race was any factor in the 
decision of defendants. Absolutely no such 
evidence has been adduced by the plaintiff 
on that issue. It appears to the Court, and 
we so find, that the discrimination against 
Mr. McIntosh was purely against him as an 
individual and not because of his member­
ship in any race or class. The Court finds 
no invidious class-based discrimination, as 
is required under 42 U.S.C. i 1983, which 
provides protection only for deprivations of 
constitutional rights and creates no inde­
pendent tort liability on its own right
19] 15. Plaintiff also raises the issues 

under 42 U.S.G. § 1981. In order to suc­
ceed the plaintiff must show purposeful 
discrimination on the basis of his race. 
W ashington v. D avis, 426 U.S. 229, 96 
S.Ct 2040, 48 L.Ed.2d 597 (1976); W il­
lia m s  v. D eK alb  C ou n ty , 582 F.2d 2 (5th 
Cir.1978); G rigsby v. N o rth  M ississipp i 
M edical Center, Inc., 586 F.2d 457 (5th 
Cir.1978); Johnson r. H offm an, 424 
F.Supp. 490 (E.D.Mo.), a jffd 572 F.2d 1219 
(8th Cir.), c e r t  d en ied 439 U.S. 986, 99 
S.Ct 579, 58 L.Ed.2d 658 (1978).
N6. In N ew ton  v. K roger, 83 F.R.D. 449, 
454 (E.D.Ark. 1979), Judge Arnold, now of 
the Eighth Circuit Court of Appeals, held 
that a plaintiff in order to succeed under 
§ 1981 “must show subjective intent ...” 
To do so the plaintiff must do more than 
show merely that he was a member of the 
black race. The plaintiff must introduce 
•evidence showing a deliberate intention on 
the part of the defendants or any of them 
to discriminate against him on the basis of 
his race. Thus, he may show “either by 
statistical evidence or by testimony of spe­
cific racially motivated incidents, that there 
is probable cause to believe that {the refus­
al to honor his ticket] ... was motivated in

substantia] part by race.” N ew to n  v. K ro ­
ger, su p ra at 454.
[10] 17. There is no evidence in this 

case, direct or indirect, of specific racially 
motivated incidents, statistical evidence, or 
any other form of evidence which would 
support the plaintiffs allegation" that the 
conduct of the defendants was purposeful' 
and based upon his race. The claims under 
§ 1981 must therefore fail.
[11] 18. The plaintiff has also alleged 

causes of action under 42 U.S.C. §§ 1985 
and 1986. It is clear that § 1985 provides a 
civil remedy for both public and private 
infringements of constitutionally protected 
rights. G riffin  v. B reckenridge, 403 U.S. 
88, 91 S.Ct 1790, 29 L.Ed.2d 338 (1971). 
But § 1985 has clearly been limited to ap­
plication in cases where the plaintiff is 
deprived of a constitutionally protected 
right or privilege, and where the act is 
based upon “some racial, or perhaps other­
wise class-based invidiously discriminatory 
animus.” G riffin  v. B reckenridge, su p ra  ' 
at 102, 91 S.Ct at 1798. For the reasons 
set forth in the foregoing conclusions of 
law, the Court finds that there has been no 
showing of any class-based invidiously dis­
criminatory animus on behalf of any of the 
defendants.
19. Further, the Court expressly finds 

that there has been no infringement of any 
constitutionally protected right by any of 
the defendants. There is therefore no ba­
sis for an action under § 1985.
[12] .'20. 42 U.S.C. § 1986 is a mispri­

sion statute and is derivative in nature. It 
is axiomatic that Lfrthe plaintiff is unable to 
state or prove a claim under § 1985, the 
derivative claim under § 1986 must fail as 
welL W illiam s v. S t  Joseph H osp ita l, 629 
F.2d 448 (7th Cir.1980); T ollett v. D am an, 
497 F.2d 1231 (8th Cir.), c e r t  d en ied 419 
U.S. 1088, 95 S.Ct 678, 42 L.Ed.2d 680 
(1974).
[13] 21. In order to establish a cause 

of action for false arrest or malicious pros­
ecution under the pendent tort claims 
raised in this cause of action, the plaintiff



SHIREY v. UNITED STATES
Q l t  u  582 F £ u p p  1251 (1984)

1251
is required to show that the police officers 
who effected the arrest were not acting in 
good faith and upon probable cause. P e r ­
k in s  v. Cross, 562 F.Supp. 85, 87 (E.D.Ark. 
1983). This is true even though the police 
officer did not choose the wisest or most 
reasonable course of action that he could 
have taken under the circumstances.
114] 22. As the Court has found, Mr. 

McIntosh was eventually acquitted of the 
charge of disorderly conduct. This, how­
ever, is not in and of itself sufficient to 
establish that any of the defendants acted 
“without probable cause.”
23. Of course, with respect ,to the de­

fendants other than the state police defend­
ants, there has been no showing that they 
acted at all. The testimony of the police 
defendants was that they acted because 
they believed that the misdemeanor of dis­
orderly conduct, as set forth in Ark.Stat 
Ann. § 41-2908 (1977), was being commit­
ted in their presence. The Court finds no 
basis for concluding that their belief was 
not reasonable under the circumstances.

theless be required to show , that they acted 
in bad faith. Nothing in the testimony of 
Mr. McIntosh or in any of the evidence 
adduced before this court indicates that 
these two police officers had any racial 
motivation, or that they harbored any ill 
will toward Mr. McIntosh, or that they 
acted in bad faith. The Court therefore 
finds that Mr. McIntosh failed state a 
claim on the pendent false arrest cause of 
action.
Based upon the foregoing findings of 

fact and conclusions of law, none of the 
defendants deprived the plaintiff of any of 
his federally protected rights, nor did any 
of them violate any law. The Court there­
fore finds that Mr. McIntosh’s claims 
should be dismissed with prejudice.

(o limtimBEnsrsTix5>

[15] 24. According to Arkansas law, 
the probable cause in the context of a false 
arrest or malicious prosecution case means 
“such a state of facts known to the prose­
cutor ... as would induce a man of ordi­
nary caution and prudence to believe, and 
did induce the prosecutor to believe, that 
the accused was guilty of the crime al­
leged, and thereby caused the prosecu­
tion.” M alvern B rick  & Tile Co. v. H ill, 
232 Ark. 1000, 1004-1005, 342 S.W.2d 305, 
308 (1961).
[16] 25. The Court believes that the 

state police officers in this case acted in the 
good faith belief that they had probable 
cause to make the arrest of the plaintiff for 
disorderly conduct That is a close ques­
tion, but what convinces the Court is their 
forthright testimony, their courteous treat­
ment of Mr. McIntosh and the fact that Mr. 
McIntosh did refuse their lawful order to 
leave the premises.
26. Even, however, if this court were to 

hold that the stale police acted without 
probable cause, the plaintiff would never­

" Patsy D. SHIREY, Plaintiff,
v..

The UNITED STATES of America. 
Defendant.

Civ. A. No. 82-1639-15.
United States District Court,

D. South Carolina,
Columbia Division.
March 19, 1984.

Purchaser of postal service jeep 
brought an action against the Government 
to recover damages for injuries allegedly 
sustained when jeep overturned. The Dis­
trict Court, Hamilton, J.. held that the 
Government wras not liable for injuries sus­
tained by purchaser of a postal service jeep 
when jeep overturned.

Ordered accordingly.