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MCINTOSH v. WHITE

November 3, 1987

Robert "Say" McIntosh, Plaintiff
v.
Frank White, et al., Defendants



The opinion of the court was delivered by: BOGUE

 ANDREW W. BOGUE, SENIOR JUDGE, UNITED STATES DISTRICT COURT.

 This case is before this Court on remand from the Eighth Circuit Court of Appeals, 825 F.2d 184, sitting en banc and vacating the panel opinion dated April 14, 1987. As ordered in said remand this Court will reconsider this case in light of Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523.

 Because of the en banc Court's reference to Anderson v. Creighton, supra, this reconsideration will be limited largely to the issue of qualified immunity pertaining to Defendants State Patrolmen Jerry Reinold and Barney Phillips.

 All records, transcripts, and files of the earlier trial before the Honorable Henry Woods, United States District Judge, Eastern District of Arkansas, are by reference included herein and made a part hereof.

 From all the records, transcripts, and files herein, as well as the testimony presented at the court trial before this Court, the Court makes the following Findings of Fact and Conclusions of Law.

 FINDINGS OF FACT

 1. Because there is no real issue as to Findings No. 1 through 21 entered by Judge Woods in the first trial of this case, and because these findings were affirmed on appeal, this Court adopts such findings as its own and by reference makes them a part hereof.

 2. At the North Little Rock jail, Mr. McIntosh was charged with disorderly conduct, questioned, booked, and released on his own recognizance at 1:16 p.m., according to the records of the North Little Rock Police Department.

 3. Judge Woods found that McIntosh's purpose in attending this private event was to make a disruptive and unsolicited speech on some topic of his choice in front of Vice President Bush and Governor White. The Eighth Circuit Court of Appeals in its opinion stated, "Although McIntosh makes no challenge to these findings, we have reviewed the record and conclude that the district court's findings are not clearly erroneous." It is urged by Plaintiff's counsel that such findings and ruling by the Eighth Circuit Court of Appeals refer only to the Plaintiff's first amendment claim. This is a totally unrealistic argument. Had the Appellate Court intended to limit its ruling as to Plaintiff's purpose, it would have clearly so stated. The finding by Judge Woods, affirmed by the Eighth Circuit Court of Appeals, that Plaintiff's purpose in attending this private event was to make a disruptive and unsolicited speech on some topic of his choice in front of Vice President Bush and Governor White, is now a conclusive finding in this case and it is a finding which cannot be relitigated. (emphasis supplied)

 4. Plaintiff was dressed in a manner which attracted, and was intended to attract, immediate attention. At the time Plaintiff was intercepted by the officers, he was standing within 20 feet of two open doors leading into the private luncheon area. Again, he was repeatedly tendered a refund, advised that he would not be allowed to enter the private luncheon and asked to leave the premises. He refused to leave and insisted that he intended to enter the luncheon. Many ticket holders were going in and out of the dining area within a few feet of Plaintiff who was agitated and was raising his voice. He could have been easily heard and observed.

 5. Other persons carrying placards were in the same general building, but on a different floor and were not indicating by word or deed that they were going to attempt to gain entrance to the luncheon area. No arrests were made of these people.

 6. Ark. Stat. Ann. ยง 41-2908 (Repl. 1977) defines disorderly conduct as disrupting or disturbing any lawful assembly or meeting of persons with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk thereof.


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