defendants did not appeal the judgment declaring section 193-2 to be unconstitutional
How later courts described this case
- defendants did not appeal the judgment declaring section 193-2 to be unconstitutional
Written by the judges who cited it.
The opinion
FAIRCHILD, Chief Judge
(concurring).
The City obtained a judgment against Allen. Implicit therein is a determination that the ordinance was constitutionally applied to him. Allen failed to appeal. Allen’s opponents in the present action are different and perhaps not in privity with the City. In my view, however, the circumstances make it appropriate to hold Allen collaterally estopped from challenging the constitutionality of the ordinance in this action. See Huffman v. Pursue, Ltd., 420 U.S. 592, 606, fn. 18 , 95 S.Ct. 1200 , 43 L.Ed.2d 482 (1975).
Foster, of course, is not similarly es-topped. The judgment in her favor rests upon the proposition that as a matter of law it was unreasonable for a police officer to believe in 1971 that the ordinance could constitutionally be applied to her. I can agree that that proposition cannot be sustained as a matter of law upon the facts *1321 shown in this record and those which can be judicially noticed.