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August 18, 1988

DAVID D. LUTZ, Plaintiff,

William W. Caldwell, United States District Judge.

The opinion of the court was delivered by: CALDWELL


 Plaintiff, David D. Lutz, has filed a motion for a preliminary injunction, challenging the constitutionality of the defendant, City of York's, Cruising Ordinance. A hearing on the motion was held on August 5, 1988, the parties have submitted briefs and the motion is ready for disposition.

 On April 19, 1988, the City of York enacted the Cruising Ordinance, prohibiting "unnecessary repetitive driving, also known . . . as cruising." Ordinance No. 6, ยง 4. Cruising was defined in section 3(a) as follows:

driving a motor vehicle on a street past a traffic control point, as designated by the York City Police Department, more than twice in any two (2) hour period, between the hours of 7:00 p.m. and 3:30 a.m. The passing of a designated control point a third time under the aforesaid conditions shall constitute unnecessary repetitive driving and therefore a violation of this Ordinance.

 Section 3(b) of the Ordinance defined the designated area, roughly a long narrow rectangular area of the City popularly known as the "Loop," "as Market Street from the 900 block west and eastward therefrom through and including the 1200 block east, and the 1200 block [of] east Philadelphia Street and westward through and including the 900 block west." The Ordinance excluded from its scope municipal and commercial vehicles and those used in public transportation. Section 5. It was enacted upon the following legislative findings:

It is hereby found that with consistency, on certain days and times, a threat to the public health, safety and welfare arises from the congestion created by repetitive unnecessary driving of motor vehicles on main thoroughfares within the City of York. The purpose of this Ordinance is to reduce the dangerous traffic congestion, as well as the excessive noise and pollution resulting from such unnecessary repetitive driving, and to ensure sufficient access for emergency vehicles to and through the designated city thoroughfares now hampered by this repetitive driving of motor vehicles.

 Plaintiff claims the Ordinance violates the constitutional rights to travel and of association. He also claims that the Ordinance is overbroad. He seeks a preliminary injunction against its enforcement. To obtain the injunction, plaintiff must show:

(1) a reasonable probability of eventual success in the litigation and (2) that the movant will be irreparably injured pendente lite if relief is not granted. Moreover, while the burden rests upon the moving party to make these two requisite showings, the district court "should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest."

 Professional Plan Examiners v. LeFante, 750 F.2d 282, 288 (3d Cir. 1984) (quoting In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982)).

 In support of his claim that the Ordinance violates the constitutional right to travel, plaintiff cites, among other cases, Kent v. Dulles, 357 U.S. 116, 78 S. Ct. 1113, 2 L. Ed. 2d 1204 (1958); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972) and Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). Defendant argues that these cases are factually distinguishable and involve administrative actions or statutes hindering the right to travel abroad or to move between the various states. Here, in contrast, plaintiff only seeks to vindicate his right to travel on city streets solely for his amusement.

 We agree with defendant that plaintiff is not asserting the right to travel as it has been commonly understood in prior cases. In those actions travel has typically referred to migration. See Carmouche v. Bethlehem Steel Corp., 450 F. Supp. 1361 (D. Nev. 1978). Nevertheless, plaintiff has asserted a liberty interest which has been recognized by this court in the past. In Bykofsky v. Borough of Middletown, 401 F. Supp. 1242 (M.D. Pa. 1975), aff'd without opinion, 535 F.2d 1245 (3d Cir.) (table), cert. denied, 429 U.S. 964, 97 S. Ct. 394, 50 L. Ed. 2d 333 (1976), plaintiff challenged a curfew ordinance for minors. In discussing the nature of the right asserted, the court stated:

The rights of locomotion, freedom of movement, to go where one pleases, and to use the public streets in a way that does not interfere with the personal liberty of others are basic values "implicit in the concept of ordered liberty" protected by the due process clause of the fourteenth amendment. [citations omitted]. One may be on the streets even though he is there merely for exercise, recreation, walking, ...

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