Anderson v. City of Albany, GA Brief for Appellants-Appellees in No. 20711 and Appellees in No. 20720

    I n  the

States GJmtrt xif Appmis
F ob the F ieth  Circuit

No. 20711

W . G. A nderson, et al.,
Appellants-Appellees,

T he  City of Albany, Georgia, et al.,
Appellees-Appellants.

No. 20720
A sa D. K elley, J r., Individually and as Mayor 

of the City of Albany, Georgia, et al.,
Appellants,

— v.---

M. S. P age, et al.,
Appellees.

BRIEF FOR APPELLANTS-APPELLEES IN NO. 20711  
AND APPELLEES IN NO. 20720

Constance B aker Motley 
J ack Greenberg 
N orman C. A maker 

10 Columbus Circle 
New York 19, New York

C. B. K ing
221 South Jackson Street 
Albany, Georgia

D onald L. H ollowbll
859V2 Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Appellants-Appellees 
in No. 20711 and for Appellees in 
No. 20720



I N D E X

PAGE

Statement of the Case .................................................. 1

Specification of Errors ...................    15

A r g u m e n t .................................      18

I. The Court Below Erred in Denying Appellants 
in Anderson, No. 20711, the Injunctive Relief to 
Which They Were Entitled by the Evidence__ 18

II. The Court Below Did Not Err in Refusing to 
Grant the Injunction Requested by City Offi­
cials in Kelley, 20,720 ................................. ..... 34

III. The Court Below Did Not Err in Refusing the
Injunction Requested by City Officials on Their 
Counterclaim in Anderson, 20,711__________  37

IV. The Court Below Did Not Err in Refusing to 
Grant Injunctive Relief Requested by City Offi­
cials Because These Officials Came Into Equity
With Unclean Hands ........................................  39

C o n clu sio n  ........................................................................................  41

T able of  Cases

Aelony v. Pace, No. 530 N. D........ ................. .............. 4
American Federation of Labor v. Swing, 312 U. S.

321 ____ ______ __________ __ _______ _________  25
Anderson v. City of Albany, 321 F. 2d 649 .... .....2, 3, 5,14,

17,19, 23, 39

Bailey v. Patterson, 323 F. 2d 201 .................. .............  23
Bakery and Pastry Drivers & Helpers Local v. Wohl,

315 U. S. 769 25



11

PAGE

Brantley v. Skeens, 266 F. 2d 447 (D. C. Cir. 1959) ..... 40
Buchanan v. Warley, 245 U. S. 60 ........... ......... .........30, 39

Cafeteria Employees Union v. Angelos, 320 U. S. 293 .. 25
Cantwell v. Connecticut, 310 U. S. 296 .................. ......28, 33
Congress of Racial Equality v. Clemmons, 323 F. 2d

54 ................................. ........... .......... ................. .....36, 37
Congress of Racial Equality v. Douglas, 318 F. 2d 95 .... 30 
Cooper v. Aaron, 358 U. S. 1 ...................... .................30, 39

Edwards v. South Carolina, 372 U. S. 229 __ ___25, 26, 27,
28, 30, 33, 39

Feiner v. New York, 340 U. S. 315................ ........... . 28
Fields v. South Carolina, 375 U. S. 44 ___ ___ ___ 26, 30, 33

Garner v. Louisiana, 368 U. S. 157 ________ ___ ____  26
Guadiosi v. Mellon, 269 F. 2d 873 (3rd Cir. 1959) ....... 40

Hague v. C. I. O., 307 U. S. 496 ...................................30, 32
Harris v. Pace, No. 531 (N. D. Ga.) ........... ..... ........... . 4
Herndon v. Lowry, 301 U. S. 242 ................................... 4
Hughes v. Superior Court of California, 339 U. S. 460 .. 25

Keystone Driller Co. v. General Excavator Company,
290 U. S. 240 ...................................... An

Milk Wagon Drivers Union v. Meadowmoor Dairies, 
312 U. S. 287 .............. .................. . a

NAACP v. Alabama, 357 U. S. 449 .......................... ..... 26
NAACP v. Button, 371 U. S. 415 ........................... ......  26
New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 

552 .................................. 25



Ill

PAGE

Precision Company v. Automotive Company, 324 IT. S.
806 ............................................ ......... ........................ 40

Staub v. Baxley, 355 U. S. 313 ......... .................... ......... 32

Terminiello v. Chicago, 337 U. 8. 1 ............................28, 33
Thornhill v. Alabama, 310 U. S. 88........ .............. ......... 25

United States v. City of Jackson, 318 F. 2d 1 ........... 22
United States v. Oregon State Medical Society, 343

U. S. 326 .................................................. .......... ’......  19
United States v. W. T. Grant Co., 345 U. S. 629 ...........  21

Walker v. Galt, 171 F. 2d 613 (5th Cir. 1948) ............... 40
Wright v. Georgia, 373 U. S. 284 ...... ........... ......... ..... . 4

S tatutes I nvolved

28 U. S. C. A. §§1331, 1343(3) ............. ............. ...3, 5, 35, 36
42 U. S. C, §1983 ........................ ......................... .... ..... 3
42 U. S. C. A. §1985(3) ........ .............................. 5, 35, 36, 37
F. R. C. P., Rule 23(a)(3) ........................... ................. 3
Georgia Code, §26-530 ........................ ................... ....... 39
Georgia Code, §26-902 ....... ........................................... 4, 39
Georgia Code, §26-5301 ............. .................................  4
City Code of Albany, Chap. 11, §6  ......      20
City Code of Albany, Chap. 14, §7 ............ .... .............. 20
City Code of Albany, Chap. 24, §35 .........................16, 20, 31
City Code of Albany, Chap. 24, §36............................... 20



I n the

lutteft ( to r t  of Appals
F or the F ifth  Circuit 

No. 20711

W . G. A nderson, et al.,
Appellants- Appellees,

T he  City of A lbany, Georgia, et al.,
Appellees-Appellants.

No. 20720
A sa D. K elley, J r ., Individually and as Mayor 

of the City of Albany, Georgia, et al.,

—v.—
Appellants,

M. S. P age, et al.,
Appellees.

BRIEF FOR APPELLANTS-APPELLEES IN NO. 20711  
AND APPELLEES IN NO. 20720

Statement of the Case

General Summary

Two appeals and one cross-appeal are here involved.
The first appeal, No. 20711, which arises out of attempts 

by Negro citizens of Albany, Georgia to desegregate facili­
ties open to the public, now presents for this court’s resolu-



2

tion the question reserved in an earlier decision which arose 
out of the same controversy, Anderson v. City of Albany, 
321 F. 2d 649 (July 26,1963, reh. den. Sept. 12, 1963). That 
question is whether peaceful protest demonstrations, en 
masse and in small groups, against both official and private 
racial discrimination, in many areas of community life, 
may be thwarted by arrests and other forms of police ac­
tivity “under the guise of constitutionally worded statutes 
and ordinances” in the name of preserving the public peace 
and safety (321 F. 2d at 647-658).

The earlier Anderson case dealt with the failure of the 
court below to grant injunctive relief against state decreed 
racial segregation in public recreational, library, and audi­
torium facilities and in privately owned transportation 
facilities, taxis and theatres. In its decision, this court 
ordered an end to state enforced segregation in those 
facilities and required the District Court to grant injunc­
tive relief against arrests for attempting to use these pub­
lic and private facilities required by law to be segregated. 
That injunction has been issued, ending that part of the 
controversy in Albany, Georgia. The remainder of the 
controversy is involved in this first appeal.

Appellants in the first appeal, No. 20711, were plaintiffs 
below. However, they are also appellees in No. 20711 
because defendants below filed a counterclaim the denial 
of which they are also appealing. Appel!ants-Appellees in 
No. 20711 are also appellees in No. 20720, having been de­
fendants below in a suit for injunctive relief filed by Albany 
city officials, the same parties who counterclaimed in No. 
20711 and whose counterclaim presented the same case as 
their claim in No. 20720.

All parties have appealed from an opinion and order of 
the United States District Court, Middle District of 
Georgia, Albany Division, the Honorable J. Robert Elliott,



3

issued on June 28, 1963, in which their respective prayers 
for injunctive relief were denied in an opinion dispositive 
of both cases (R. Anderson 26; R. Kelley 35).1 These 
cases were consolidated on this appeal by order of this 
court of October 24, 1963.2 This brief is filed on behalf 
of appellants-appellees in Anderson and appellees in Kelley.

Summary of Proceedings in Anderson, e l al. 
v. City of Albany, No. 20711

The complaint was filed on July 24, 1962 as a class action 
pursuant to F. R. C. P., Rule 23(a)(3), invoking juris­
diction under 28 IJ. S. C. §1343(3) and under the Civil 
Rights Acts, 42 U. 8. C. §1983 (R. Anderson 1). Plaintiffs 
alleged that they, and the members of their class, had 
peacefully demonstrated against: 1) state-enforced racial 
segregation in publicly owned and operated facilities and 
privately owned public transportation facilities and thea­
tres, and 2) against enforcement of racial discrimination in 
drug and department stores opened to the general public. 
Plaintiffs alleged further that they had been arrested, on 
various charges under Albany ordinances, on account of 
their protest demonstrations (R. Anderson 5-7). Addi­
tionally, the complaint averred that plaintiffs had sought 
a permit and cooperation of the police for a peaceful, 
orderly demonstration which had been denied; and that a 
temporary restraining order designed to halt their protest

1 The printed record in Anderson, et al, v. City of Albany, No.
20711, will be referred to hereafter as R. Anderson----- while the
printed record in Kelley, et al. v. Page, No. 20720, will be referred
to as R. Kelley----- . The transcript of testimony already on file in
this Court (having been filed with the earlier Anderson appeal) 
will be cited as T. Vol. ----- , ----- .

2 While decision of the earlier Anderson case was pending in this 
Court, appellants moved to consolidate these appeals with that 
case. The Court denied this motion because it had been filed after 
oral argument and consideration of that case but granted the 
parties the right to use the record in the case in these appeals 
(Order filed July 18, 1963, in Anderson, No. 20501).



4

activity had been sought by city officials and had issued 
without notice on July 20, 1962, following plaintiffs’ re­
quest for police cooperation in a proposed demonstration 
(R. Anderson 6-7). Accordingly, plaintiffs prayed the is­
suance of an injunction securing the right to peacefully 
demonstrate against segregation and discrimination which 
right, it was declared, was protected by the First Amend­
ment to the Constitution of the United States and the due 
process and equal protection clauses of the Fourteenth 
Amendment (R. Anderson 2). Annexed to the complaint 
was a notice for preliminary injunction (R. Anderson 11).

Thereafter, on July 31, 1962, defendants filed an answer 
and counterclaim (designated as a cross claim) alleging 
that plaintiffs had conducted mass demonstrations, mass 
picketing, and boycotts in the City of Albany; had caused 
large numbers of people to congregate on the public streets; 
had blocked and obstructed some of the streets in the 
City; had caused traffic to become congested; and had 
generally constituted a hazard to public safety. Defendants 
further claimed that plaintiffs’ acts violated a number of 
statutes (two of which have since been declared unconstitu­
tional),3 and city ordinances set forth in the counterclaim. 
Defendants, therefore, prayed interlocutory and permanent 
injunctive relief against plaintiffs (R. Anderson 15-24).

Hearing on appellants’ motion for preliminary injunc­
tion commenced on August 30, 1962, at which time the case 
was consolidated for purposes of trial with the Anderson 
ease, previously decided by this Court, and the Kelley case,

3 Ga. Code §26-5301 (unlawful assemblies and disturbing the 
peace) and Ga. Code §26-902 (attempts to incite insurrection), two 
of the statutes which the city claimed were being violated, were 
declared unconstitutional by a three-judge District Court on No­
vember 1, 1963, in Aelony v. Pace, No. 530 and Harris v. Pace, No. 
531 (N. I). Ga.) the court basing its decision on Wright v. Georgia, 
373 U. S. 284 and Herndon v. Lowry, 301 U. S. 242.



5

here. Testimony was concluded at the end of the day on 
August 31, 1962, resumed on September 26, 1962, and con­
cluded on that date.

On June 28, 1963, the District Court wrote an opinion 
in which it made no specific findings in this case on either 
the main claim or the counterclaim but, nevertheless, de­
nied all injunctive relief.

Appeal was taken to this court by both parties via sep­
arate notices of appeal filed on July 12, 1963 (R. Anderson 
37) and July 16, 1963 (R. Anderson 40), respectively.

Summary of Proceedings in 
Kelley v. Page, No. 20720

The complaint in this case was filed on July 20, 1962, four 
days earlier than the complaint in the Anderson cases. 
Jurisdiction was alleged under 42 U. S. C. §1985(3) and 28 
U. S. C. §§1343 and 1331. The complaint in all significant 
particulars alleged the substance of the matter contained 
in the counterclaim filed in the Anderson case, supra, 
namely, that defendants by their activities were disrupting 
the public peace of the City of Albany and were in viola­
tion of the same state statutes and city ordinances. Ac­
cordingly, plaintiffs prayed that a temporary restraining 
order, interlocutory and permanent injunction issue to 
prevent the defendants:

“from continuing to sponsor, finance, incite or encourage 
unlawful picketing, parading or marching in the City 
of Albany, from engaging or participating in any un­
lawful congregating or marching in the streets or other 
public ways of the City of Albany, Georgia; or from 
doing any other act designed to provoke breaches of 
the peace or from doing any act in violation of the 
ordinances and laws hereinbefore referred to.” (R. 
Kelley 1-10.)



6

The complaint was filed sometime during the day of July 
20, 1962, and at 10:55 P. M. that night District Judge 
Elliott issued a temporary restraining order (returnable 
nine days later) in accordance with the prayer of the 
complaint (E. Kelley 13). After signing the order Judge 
Elliott left the state (E. Kelley 20) but on July 24, 1962, 
Chief Judge Tuttle of this Court vacated the order pend­
ing a hearing and ruled that the court below was clearly 
without jurisdiction of the cause of action (E. Kelley 20).

Appellees’ motion to dismiss this complaint on juris­
dictional and other grounds when the case came on for 
hearing in the court below was denied (T. Vol. I, 1 A). 
An amendment to the complaint was filed on July 31, 1962 
(E. Kelley 24), in which plaintiffs alleged additional matter 
consonant with allegations made in the complaint.

Defendants answered on August 6, 1962 (E. Kelley 26), 
denying the allegations of illegal conduct contained in the 
complaint and its amendment and claiming that their con­
duct was only that of peaceful protest against the segrega­
tion laws and practices of the City of Albany and that their 
activities had not violated any valid state law or city 
ordinance. Defendants asked that plaintiffs’ request for 
injunctive relief be denied and the action dismissed be­
cause of lack of jurisdiction (E. Kelley 31).

Testimony in the case commenced on July 30, 1962, con­
tinued through August 3, recessed until August 7, and 
ended August 8, 1962. The record of this testimony was 
considered by the District Court in its decision of all three 
cases pursuant to its consolidation of the cases for trial. 
Thus, in actual effect, the hearing in this case was not 
concluded until September 26, 1962 (see supra). By agree­
ment of counsel for both parties, at the conclusion of all 
testimony on September 26, 1962, the District Court con-



7

sidered all testimony taken from July 30, 1962-September 
26,1962, as that offered on a final hearing.

In its June 27th opinion and order, the District Court 
denied the prayer for injunctive relief and refused to rule 
on defendants’ prayer to dismiss on the ground that de­
fendants’ counterclaim in Anderson (20711) contained sub­
stantially the same allegations and had asked for substan­
tially the same relief as the complaint in this case and 
since the court clearly had jurisdiction of the Anderson 
case, decision of the claim of nonjurisdiction in this case 
was unnecessary (E. Kelley 41; R. Anderson 32).

Notice of Appeal was filed on July 16, 1963 (E. Kelley 
46).

Summary of Evidence
1) Formation and Purpose of the Albany Movement

The movement for desegregation in Albany was spear­
headed by the Albany Movement, an unincorporated asso­
ciation of individuals, primarily Negroes, resident in Al­
bany, Georgia (T. Vol. I, 2A-3A; T. Vol. Ill, 637A-638A; 
T. Vol. V, 120B-121B). Its objectives are the desegregation 
of all publicly owned or operated facilities and privately 
owned facilities patronized by Negroes in the City of Al­
bany, nondiscriminatory representation of Negroes on petit 
and grand juries, and increased public and private em­
ployment opportunities for Negroes (PI. Exh. I, 20501; 
T. Vol. V, 25B-26B). These objectives are to be attained 
through peaceful means (T. Vol. V, 139B). Force and 
violence are definitely eschewed (T. Vol. Ill, 664A).

2) Methods Utilised to Achieve Objectives

The mass protest movement in Albany commenced upon 
the failure of Negro leaders to negotiate the Negro com­
munity’s many grievances with city officials and local mer-



8

chants. Appellant, Dr. W. G. Anderson, president of the 
Albany Movement, testified that on several occasions he 
and others petitioned the Mayor and city officials in vain to 
initiate desegregation of public and private facilities (T. 
Vol. V, 55B-56B, 59B, 83B, 103B-105B). The Movement’s 
public protect activities did not begin until these attempts 
had proven fruitless, and even while the protest demon­
strations were going on attempts to negotiate continued.

In short, the Albany Movement chose the means of peace­
ful public protest in an attempt to achieve that which they 
had been unable to achieve by approaching city officials.

3) The Movement’s Protest Activities and the 
City’s Efforts to Crush Them

Though random protests had occurred prior to November 
19, 1961 (T. Vol. V, 120B), the major organized demon­
strations in which members of the Albany Movement took 
part began in November 1961 (T. Vol. V, 116B). The dem­
onstrations took the form of mass meetings in churches, 
walks to City Hall, prayer vigils in front of City Hall, 
and picketing of segregated public and private facilities.

The testimony with respect to these various protest in­
cidents and the arrests which followed is prolix—spread 
over six volumes—and reveals that protests occurred in 
small spontaneous groups, as well as larger organized dem­
onstrations. However, what emerges from a distillation of 
the record is an unmistakable determination on the part 
of the police, the Mayor, the City Manager and other city 
officials to prevent any public protest no matter how mani­
fested on the part of the Albany Movement against racial 
segregation. One thousand one hundred arrests were made 
over a period of several months involving 450 persons 
charged with various offenses such as parading without a 
permit, refusing to obey an officer, disorderly conduct, etc.



9

a) First, a summary of the small, sporadic protest ac­
tivity which resulted in arrests:

On one occasion Negroes attempted to use the white 
public library, found the library doors locked in anticipa­
tion of their coming, proceeded to kneel and pray on the 
library steps and “the policemen came and literally carried 
[them] away” (T. Vol. V, 110B-111B). A Negro girl was 
arrested for refusing to move to the back of a local city 
bus when the buses were in operation (T. Vol. V, 155B- 
162B; Vol. VI, 199B-211B). A Negro man was arrested 
when he and a companion went into the white restaurant in 
the Trailways Bus Terminal in Albany (T. Vol. V, 167B- 
169B). After the I. G. C. ruling of November 1, 1961, bar­
ring segregation, Negroes were repeatedly arrested in the 
white waiting room of the Trailway Bus station (T. Vol. 
I, 153A-155A; 159A-160A; 162A). A cab driver was ar­
rested for carrying white passengers, without charge, who 
were stranded on the outskirts of the City and requested 
that he drive them into the City. This driver was convicted 
and fined (T. Vol. V, 96B-102B). Negro high school stu­
dents were arrested by the Chief of Police when they con­
ferred with the owner of a local theatre about the owner’s 
segregation policy which resulted in the students having 
to leave their seats on one occasion to make room for the 
white patrons in the Negro section (T, Vol. V, 178B-185B).

There was a great deal of testimony in the record with 
respect to a picketing incident involving appellants Ander­
son, Slater King, Harris and Jackson that occurred in 
March of 1962 in the 100 block of North Washington Street 
in Albany. Two of the above-named appellants were on 
one side of the street and two on the other side (T. Vol. 
V, 149B-151B). Dr. Anderson was carrying a sign reading 
“walk, live and spend in dignity” (T. Vol. IV, 889A). An­
derson was approached by Assistant Chief of Police, Leslie



10

Summerford, and told that he and the other three pieketers 
would have to stop walking and move on or else be arrested. 
Anderson was told by Summerford that a ease would be 
made out against him, and when finally, the group was 
placed under arrest, Anderson was told when he asked 
“on what charge” that “well, we will get a charge” (T. Yol. 
V, 149B). Assistant Chief Summerford testified that he 
did in fact tell Anderson that he would have to make out a 
case against him (T. Yol. VI, 274B), and he also testified 
that Anderson and the three others were doing nothing 
more than walking, “not especially talking” (T. Vol. VI, 
279B), that there was no crowd to speak of (T. Vol. VI, 
285B), no people standing in the recesses or entrances to 
doorways at the scene (T. Vol. VI, 290B), and that the 
only crowd of any size that collected did not collect until 
the arrests were made (T. Vol. VI, 289B).

This incident was typical of others. Other Negroes were 
arrested for similar picketing in small numbers (T. Vol. I, 
249A). Several others were arrested for participating in 
a prayer vigil in front of City Hall (T. Vol. I, 144A-145A, 
146 A).

The record of these incidents testify not only to the fact 
that these demonstrations were both peaceful in intent and 
in fact but also testify to the fact that there was no public 
need for the kind of police conduct that was arrayed against 
the protestors.

b) The following is a summary of the mass protest 
activity which resulted in arrests:

On December 12, 1961, some 267 Negroes marched from 
a church to City Hall in a column of twos. They marched 
close to the curb, leaving a large portion of the street 
unobstructed for normal pedestrian traffic (Def. Exh. 21). 
They were singing freedom songs. There were no threats,



11

intimidation, fisticuffs or incidents of any kind (T. Yol. I, 
48A, 179A, 191A, T. Vol. I, 47A). No businesses were 
required to close (T. Yol. I, 48A-49A). No person was 
prevented from entering a building (T. Vol. I, 181A). The 
situation was under control at all times (T. Yol. I, 206A).

On December 13, 1961, another march involving approxi­
mately 100-200 persons occurred (T. Vol. I, 54A). They 
marched two abreast in close orderly fashion, remaining 
close to the building line. Pedestrian traffic was unimpeded 
and there was no commotion or disturbance (Def. Exh. 23 
(a-p); Def. Exh. 25). Whatever traffic was blocked was 
due to the fact that the last part of the line at one point 
did not get across the street before a traffic light changed 
(T. Vol. I, 56A). Again, no businesses were closed (T. Vol. 
I, 59A) and any crowds that collected were kept moving 
(T. Vol. I, 55A).

On December 17, 1961, a march occurred consisting of 
about 266 persons. It was led by Dr. Anderson, Rev. Ralph 
Abernathy and Dr. Martin Luther King. The police had 
blocked traffic along the route of the march and they had 
closed establishments serving alcoholic beverages. As 
they marched, the group obeyed traffic signals. There were 
remarks from persons assembled along the route of march 
but not from the demonstrators. The Chief of Police testi­
fied that everyone who was observing the march moved on 
when requested to do so by his men. Again, there were no 
incidents (T. Vol. I, 63A-71A, 225A).

On December 13, 1961, there was a kneel-in in front of 
the City Hall. There were crowds of curious onlookers 
across the street, but there was no commotion or dis­
turbance of traffic. Pedestrian and vehicular traffic were 
normal, with the exception of onlookers, and the police 
had the situation under control throughout (T. Vol. II, 
336A, 340A,—Def. Exh. 23 (q-v) ; Def. Exh. 24).

s



12
On July 21, 1962, a march involving about 61 people took 

place (T. Vol. 1,132A). A crowd assembled as they marched 
(T. Vol. I, 133A). The crowd became boisterous and mem­
bers of the Albany Movement “were there policing their 
own crowd” and with city policemen were successful in 
keeping order (T. Vol. I, 136A-137A).

There was considerable testimony relative to a demon­
stration involving about 40 people that occurred on the 
night of July 24, 1962. After those who were in the line of 
march were arrested, a large crowed estimated variously 
from 2,000 to 4,000 persons gathered in the Negro area 
and rocks and bottles were thrown at police officers and 
jeers, epithets and insults hurled. However, none of the 
testimony connected any of the persons in the line of march 
or any of those named as defendants in the action with 
engaging in or encouraging any of the violence that oc­
curred on the part of the post demonstration crowd. In fact, 
the testimony was that members of the Albany Movement 
did everything they could to help control the crowd (T. Vol. 
I, 137A-143A; Vol. II, 324A-347A).

4) Denial of Permits and Police Cooperation

The determination of the City of Albany to bar the pro­
tests of the Albany Movement is seen in the manner in 
which the city handled requests for a permit for a demon­
stration made by Movement officials in attempts to comply 
with the Albany parade ordinance. All requests were uni­
formly denied and then arrests wTere made for parading 
without a permit.

Responsibility for issuing permits rests with the City 
Manager (T. Vol. IV, 836A). However, there are no stand­
ards in the Albany City Code (Chapter 25, §35) which 
define what constitutes a parade (T. Vol. I, 221A). There 
isn’t any written policy guide under which the City Man-



13

ager determines when a permit will issue (T. Vol. IV, 
836A-837A). There is no formal application blank which 
must be completed in order to obtain a permit (T. Vol. IV, 
841A-842A). Consequently, a parade is whatever the Chief 
of Police construes to be a parade (T. Vol. IV, 221A-222A). 
He does not construe four pickets in one block as constitut­
ing a parade (T. Vol. I, 249A), nevertheless, on or about 
June 24, 1962, four Negro residents of Albany were ar­
rested for picketing in the 100 block of Washington Street 
and charged with disobeying an officer and disorderly con­
duct (T. Vol. II, 267A).

Requests are made informally by telephone or letter to 
the City Manager or Chief of Police. When requests are 
made to the City Manager, they are generally forwarded 
to the Chief of Police for his advice. Oral requests for a 
permit have been granted by these officials and they have 
acted on these requests within the same day upon which 
the request was received (T. Vol. IV, 847A-849A).

At a meeting in the Albany City Hall on July 13, 1962, 
Dr. Anderson orally requested a permit to hold a prayer 
service in front of the City Hall which request was denied 
(T. Vol. IV, 902A-903A).

Shortly thereafter, a delegation of two or three persons 
went to the City Manager to make a formal oral request 
for a permit to hold the prayer meeting mentioned at the 
July 13th meeting. The City Manager specified what in­
formation should be included in a letter formally request­
ing a permit: the route, the time, the approximate number 
of persons involved, the sponsors, and the intention of the 
gathering (T. Vol. IV, 850A-851A).

By letter dated July 19, 1962, Dr. Anderson on behalf 
of the Albany Movement, wrote the City Manager and in­
formed him that a prayer service would be held in front



14

of City Hall on July 21, 1962. The letter contained the 
required information, asked the assistance of the Albany 
Police Department in facilitating the crossing of the streets 
by the group on their way to the City Hall, and stated that 
the purpose of the gathering was to “manifest in the pres­
ence of God, the Albany community, and the world our 
great concern over the inability of Negro citizens of Albany 
to effectively communicate to the city fathers their com­
munity problems” (Pl. Exh. A; T. Vol. IV, 846A-852A; 
866A-881A). This letter was considered as a threat to 
violate the City parade ordinance (T. Vol. IV, 880A) rather 
than a request for a permit; and instead of replying, the 
City officials secured from Judge Elliot the restraining 
order without notice referred to above, attaching a copy 
of Dr. Anderson’s letter to their complaint. This consti­
tuted the basis of the action in No. 20720.

Opinion and Order of June 28, 1963

Though hearing of all cases concluded on September 26, 
1962, the District Court did not render any decision until 
February 14, 1963 when it dismissed the suit for an injunc­
tion requiring desegregation of the city’s public facilities. 
This judgment was later reversed by this court in the first 
Anderson case brought here.

The cases presently being appealed were not decided until 
June 27, 1963, almost a year after they had been filed and 
nine months after all proceedings had been concluded and 
after this court in the earlier Anderson case had opined 
that, in its view, the parties were entitled to a prompt deci­
sion on their pending motions (321 F. 2d at 658).

In its decision of June 28, 1963, the District Court de­
clined to rule upon appellees’ prayer made in the Kelley case 
to dismiss the action on the ground of lack of jurisdiction, 
feeling that it was unnecessary to determine this question



15

of jurisdiction since plaintiffs in Kelley had counterclaimed 
in Anderson for essentially the same relief as prayed by 
them in Kelley. The court’s view was that determination 
of the question of jurisdiction would only have been neces­
sary in the event the relief prayed in Kelley was granted 
with respect to parties who were not also parties in Ander­
son (R. Kelley 41; R. Anderson 32). Of course, since the 
court had determined to deny relief to all parties, there 
was no question of the granting of relief with respect to 
persons who were parties in one case but not in the other.

The basis of the court’s denial of relief with respect to 
both main claims and the counterclaim was that the events 
detailed in the record had occurred many months before 
litigation; and after the issuance of the temporary restrain­
ing order in Kelley, the general community situation im­
proved ; and with the exception of the date upon which the 
temporary restraining order was dissolved by Judge Tuttle 
of this court, no further unrest took place. The court also 
noted that there had been no evidence of any substantial 
incidents or aggravations that had occurred during the 
period of the hearings (R. Kelley 42-43; R. Anderson 34). 
Finally, the parties had not submitted any additional evi­
dence of anything that had developed since September 26, 
1962 (R. Kelley 44; R. Anderson 35). Consequently, neither 
side in the court’s view was entitled to relief as of the 
time the hearings concluded or the date of the opinion 
(R. Kelley 45; R. Anderson 36).

Specification o f E rro rs

Because two appeals and a cross appeal are here in­
volved, appellants-appellees in Anderson, No. 20,711 and 
appellees in Kelley, 20,720, believe it would be helpful to 
the court to specify those errors which they believe are and 
are not involved in the three appeals as follows:



16

1. The court below erred in finding “as a matter of fact 
and as a matter of law that the situation existing at the 
time of the conclusion of the hearings in these matters and 
the situation now existing insofar as the Court is informed 
does not show on the part of W. G. Anderson and others, 
as plaintiffs in Civil Action No. 731 (Anderson, 20,711), 
such a denial to Negro citizens of the right to peacefully 
protest and demonstrate against alleged State enforced 
racial segregation or segregation in the other circum­
stances complained of, nor such threats or intimidation as 
would warrant the relief sought by them.”

2. The court below erred in refusing to enjoin arrests 
for peaceful picketing of department and other stores in 
the City of Albany since such arrests as demonstrated by 
the uncontradicted testimony in the record violated rights 
secured by the First and Fourteenth Amendments to the 
Federal Constitution.

3. The court below erred in refusing to enjoin arrests 
for participating in prayer vigils in front of City Hall in 
the City of Albany since such arrests as evidenced by the 
uncontradicted testimony violated rights secured by the 
First and Fourteenth Amendments to the Federal Constitu­
tion.

4. The court below erred in refusing to enjoin arrests for 
participating in peaceful anti-segregation protest demon­
strations of the kind described in Dr. W. G. Anderson;s 
letter to the City Manager of July 19, 1962 (R. Kelley 11) 
and which Dr. Anderson and other parties attempted to 
hold from November 1962 through July 1963, since such 
demonstrations are clearly within the ambit of First and 
Fourteenth Amendment guarantees.

5. The court below erred in refusing to hold the parade 
ordinance of the City of Albany (Chap. 24, §35 of City Code



17

of Albany) unconstitutional on its face and as applied as 
requested by appellants in Anderson, 20,711, in their pro­
posed findings of fact and conclusions of law and as demon­
strated by uncontradicted testimony of the City Manager.

6. The court below did not err in refusing to grant the 
injunction requested by city officials in Kelley, 20,720, since 
the complaint failed to state a federal cause of action upon 
which relief could be granted and the record failed to prove 
one.

7. The court below did not err in refusing the injunction 
requested by city officials on their counterclaim in Anderson, 
20,711, because the officials:

a) failed to prove that any appellant-appellee sought 
to be enjoined wilfully or intentionally attempted to deprive 
any other person of the equal protection of the laws.

b) failed to prove that any appellant-appellee sought to 
be enjoined wilfully or intentionally attempted to prevent 
any official from performing any duty imposed on such 
official by state or federal law.

c) failed to prove that any appellant-appellee or any 
person or persons associated with him actually advocated 
or actually engaged in any violence.

d) failed to prove that any appellant-appellee or any 
person associated with him violated any valid law of the 
State of Georgia or any valid ordinance of the City of 
Albany.

8. The court below did not err in refusing to grant the 
injunction requested by city officials on their counterclaim 
in Anderson, 20,711, because these officials were guilty of 
enforcing unconstitutional racial segregation in both public 
and private facilities, Anderson v. City of Albany, 321 F.



18

2d 649 (C. A. 5th 1963) against which the parties sought 
to be enjoined were protesting and consequently came into 
equity with unclean hands.

A R G U M E N T

I.
T he C ourt Below E rred  in D enying A ppellants in 

Anderson, No. 2 0 7 1 1 , th e  In junctive  R elief to W hich 
T hey W ere E ntitled  by th e  Evidence.

A. No Abatement of Grounds for Equitable Relief

The court below denied all injunctive relief requested by 
appellants in Anderson, No. 20711. This denial was pur­
suant to what that court described as a finding “ . . .  as a 
matter of fact and as a matter of law that the situation 
existing at the time of the conclusion of the hearings in 
these matters and the situation now existing insofar as the 
Court is informed does not show on the part of W. G. 
Anderson and others,. . ., such a denial to Negro citizens of 
the right to peacefully protest and demonstrate against 
alleged State enforced racial segregation or segregation in 
the other circumstances complained of, nor such threats or 
intimidation as would warrant the relief sought by them” 
(R. Anderson 36).

In other words, the court concluded, without any state­
ment in the record to this effect, that the Albany city 
policy have abandoned their policy of arresting persons 
who peacefully picket department and other stores, hold 
small prayer vigils in front of City Hall, and walk to City 
Hall in large numbers in the manner described in Dr. An­
derson’s letter to the City Manager of July 19, 1962 (R. 
Kelly 11) and who otherwise peacefully demonstrate 
against segregation. The court also obviously had con-



19

eluded, again without any record foundation, that the 
grievances of the Negro community which generated these 
demonstrations had been so far adjusted as to preclude the 
“probability of resumption” * of peaceful protests and 
more arrests. The record is to the contrary.

In November 1961, Negro citizens in Albany, Georgia 
commenced public protest demonstrations against all segre­
gated facilities open to the general public. During that 
month, the Albany Movement, an unincorporated associa­
tion of individuals, was born. It is still in existence. The 
organization and the demonstrations were sparked by the 
inability of Negro community leaders to negotiate griev­
ances (Tr. Vol. 1,117A-119A). More specifically, the Albany 
Movement leaders sought to have the city desegregate 
public library and recreational facilities, the city’s audi­
torium, and the city’s hospital facilities. Segregation in 
all of these public facilities, except the hospital, has been 
enjoined by the District Court pursuant to this court’s 
decision in Anderson v. City of Albany, 321 F. 2d 649, 
although the city’s parks remain closed as indicated on that 
appeal and the main swimming pool has been sold. Arrests 
for attempting to use these facilities lawfully on a non- 
segregated basis likewise have been enjoined. The Move­
ment’s objectives were also to end discrimination in the 
selection of juries and public employment. The curbing 
of police brutality was another goal.

The privately owned facilities which the Albany Move­
ment sought to desegregate were public transportation 
facilities (buses were required by local ordinance to be 
segregated) including taxicabs (required by local ordi­
nance to be segregated) and privately owned theatres 
(also required by local ordinance to segregate ticket lines)

4 United States v. Oregon State Medical Society, 343 U. S. 326, 
333.



20

drug and department stores open to the general public 
(Tr. Vol. I, 107A-1Q9A). This court’s decision in Anderson 
v. City of Albany, swpra, also has resulted in an injunction 
against enforced racial segregation on public buses, in the 
bus and train stations, in taxicabs and theatre ticket lines. 
Arrests for attempting to lawfully use same on a lion- 
segregated basis have been enjoined. Additionally, the 
Movement sought to increase employment opportunities for 
Negroes in private establishments.

In short, the objectives of the Albany Movement were, 
and still are, the total elimination of racial discrimination 
and segregation in facilities open to the general public. 
However, these objectives are far from won. Hospital fa­
cilities are still segregated, the theatres still have segre­
gated seating arrangements, white taxicabs still refuse to 
ride Negro passengers, the department stores and drug 
stores are still segregated with respect to lunch counters 
and rest room facilities. No progress has been made in 
securing wider employment opportunities for Negroes in 
either public or private employment. Police brutality and 
jury discrimination are continuing unresolved problems.

During the course of the demonstrations, according to 
the city officials, “the city made 1,100 cases (109A), in­
volving about 450 people (147A).” (Consolidated Brief 
Kelley 13.) These persons were charged with unlawfully 
congregating on the sidewalks so as to obstruct same (Chap. 
24, §36 City Code of Albany), parading without a permit 
(Chap. 24, §35 City Code) willfully failing or refusing to 
obey an officer (Chap. 11, §6 City Code) and disorderly 
conduct (Chap. 14, §7 City Code).5 These arrests were 
designed to and did accomplish a drastic reduction in dem­
onstration activity. But the fact that the unlawful arrests 
have accomplished their objective of breaking the back

6 These ordinances are set forth on pp. 34-35 of Consolidated 
Brief in Kelley.



21

of the Albany Movement does not render the case moot or 
provide a factor which might be taken into consideration 
by the District Court in determining whether an injunc­
tion against future arrests should issue. United States v. 
W. T. Grant, 345 U. S. 629, 633.

Moreover, the record is clear that there were demon­
strations in Albany after the commencement of this action 
on July 24, 1962. On July 30, 1962, the Chief of Police 
testified, at great length, regarding demonstrations which 
had occurred prior to July 24th, 1962. Then the Chief was 
asked by his attorney, the Mayor of the City of Albany, 
whether there had been any demonstrations in Albany after 
July 24th. The Mayor queried:

Q. Now, since the 24th, after that big demonstra­
tion then, what has been taking place? A. They held 
other press conferences there at the residence of Dr. 
W. G-. Anderson.

Q. Have there been any other demonstrations or any 
other activity supported by any of the Defendants? 
A. There have been demonstrations and such at the 
City Hall, in groups of 10, 9, or as high as 25 or 28.

Q. Did any of these people relate to you why they 
were demonstrating? A. They were demonstrating 
because the City Commission, in their own words, 
“would not yield to their demands.”

Q. Did they assign any other reason for congregat­
ing in front of the City Hall? A. Their statement to 
me was that they were there to protest the activity of 
the City Commission (Tr. Vol. I, 44A-45A).

In addition, the Chief of Police testified that he had been 
advised that the Albany Movement intended to continue 
demonstrations against segregation. Queried about this by 
the Mayor, the Chief testified:



22

Q. Now, Chief Prichett, have you discussed the mat­
ter of other activities of the Albany Movement with 
any of these defendants recently? A. Yes, I have.

Q. What has been their attitude, Mr. Prichett? A. 
Their attitude has been such that they felt, they said 
they felt compelled—that they would not have any mass 
demonstrations now, because of the people not being 
willing to follow their non-violence; that they would 
have only small groups, consisting of 10 and as high as 
27, to come to the City Hall to pray; but they said they 
would not—that they would continue their demonstra­
tions in violation of our laws.

*  # # # #

Q. Chief Prichett, after Dr. King was sentenced and 
incarcerated did he state to you, after his fine was paid, 
whether or not he wanted to stay in jail or be released? 
A. He stayed (sic) he wanted to remain in jail.

* # # # #
Q. Did he at that time make any mention of the ordi­

nances of the City? A. He did.
Q. What did he say? A. He stated there in my 

office on his release that he would continue to fight this 
struggle to do away with the evil system of segregation, 
in his own words (Tr. Vol. I, pp. 146A-148A).

Again, as demonstrated above, segregation is far from a 
moot issue in Albany, Georgia. The record here shows that 
same “steelhard, inflexible, undeviating official policy of 
segregation” of which this court took judicial notice in 
United States v. City of Jackson, 318 F. 2d 1, 5-6. When 
Negro citizens of Albany petitioned the city officials to 
desegregate facilities over which they had control, the 
Mayor acknowledged that the petitions had been considered 
by the City Commissioners, but they had concluded that 
there were “no areas of agreement” and the petitioners



23

should, therefore, “go to court” (Tr. Yol. IV, pp. 777A- 
778A, 781A-783A). The record leaves no doubt that the 
Mayor and other white people in Albany would rather see 
the swimming pools closed than integrated (Tr. Vol. V, 
pp. 64B-65B, 76B-77B). The parks have been closed and 
the white swimming pool sold. The segregation ordinances 
were not repealed until long after suit to enjoin enforce­
ment of same was commenced. Anderson v. City of Al­
bany, supra, at p. 657. And no desegregation in Albany 
has occurred other than that ordered by this court; except 
that the library was desegregated on a stand-up basis just 
prior to the argument on appeal in Anderson v. City of 
Albany, supra, at p. 656.

Clearly, then, this court’s words in Bailey v. Patterson, 
323 F. 2d 201, 205 are controlling here:

Under these circumstances, the threat of continued 
or resumed violations of appellant’s federally protected 
rights remains actual. Denial of injunctive relief might 
leave the appellees “free to return to [their] old ways.” 
United States v. W. T. Grant Co., 345 U. S. 629, 632, 
73 S. Ct. 894, 897, 97 L. ed. 1303 (1953).

The refusal of the court below to grant any relief, under 
the circumstance here, was patently unjustified and leaves 
the city officials free to resort to arrests and charges of law 
violations as the vehicles for suppression of future free 
speech demonstrations against segregation.

B. The Record Discloses Plain Violations of 
First Amendment Freedoms

1. The record is clear that appellants Anderson, Slater 
King, Jackson and Harris were arrested and charged with 
failing to obey an officer and disorderly conduct when they 
peacefully picketed department stores in the 100 block of 
North Washington Street in March 1962 (Tr. Vol. II,



24

266A-269A). Two of these appellants were on one side of 
the street and two on the other carrying signs protesting 
discrimination against Negroes. Other small groups of 
pickets were similarly arrested (Tr. Vol. I, 246A, 249A- 
251A-256A). Nowhere in their statement of the facts do 
the city officials describe the Washington Street incident. 
In the argument in their brief (Consolidated Brief Kelley, 
pp. 41-42) the city officials say:

“The only evidence adduced by plaintiffs in this case 
in support of their motion for preliminary injunction 
against interference with their demonstrations and 
picketing was to the effect that on one occasion in March, 
1962, arrests were made of four of the plaintiffs be­
cause of their picketing (149B).”

The circumstances surrounding these arrests the City 
claims were disputed. In support of this contention, they 
cite the testimony of the arresting officer, Summerford, who 
testified that he arrived on the scene around 5:30 and re­
mained until 6 o’clock. He claimed the pickets were caus­
ing the streets to become congested because they attracted 
a crowd (Tr. Yol. VI, 273B). When photographs of the 
scene contradicted this, the officer declared that these pic­
tures did not accurately depict the situation (Tr. Vol. VI, 
279B-289B). But it is self-evident that two pickets on one 
side of a city block and two pickets on the other would not 
interfere with sidewalk traffic.

Bealizing the weakness of their position, the City then 
argues that applicable here is the rule established in Milk 
Wagon Drivers Unions v. Meadowmoor Dairies, 312 U. S. 
287, that even peaceful picketing may be prohibited when 
enmeshed with violence. However, the city officials do not 
point to any violence which had occurred in the City of 
Albany prior to March 1962 (Consolidated Brief Kelley, 
pp. 6-8) or during the course of this picketing. Conse-



25

quently, there being no prior or contemporaneous violence, 
there was no such serious violence as dictated the Meadow- 
moor rule. According to the city officials’ own statement of 
the facts in these cases, no violence occurred until the inci­
dent of July 10, 1962 (Consolidated Brief Kelley, p. 8). 
Then, someone, unidentified, threw rocks at a police car and 
a vehicle occupied by an agent of the F.B.I. and a dome 
light on one vehicle was broken. This was many months 
after March 1962.

The picketing which took place in March 1962, the object 
of which was the elimination of racial discrimination in de­
partment stores open to the general public, including Ne­
groes, was a clear, unadulterated exercise of the First 
Amendment right of free speech protected against state 
abridgment by arrest, and other interference, by the Four­
teenth Amendment to the Federal Constitution. Edwards v. 
South Carolina, 373 U. S. 229; Thornhill v. State of Ala­
bama, 310 U. S. 88; American Federation of Labor v. Swing, 
312 IT. S. 321; Bakery and Pastry Drivers & Helpers Local 
v. Wohl, 315 U. S. 769; Cafeteria Employees Union v. An­
gelos, 320 U. S. 293. “Picketing when not in numbers that 
of themselves carry a threat of violence may be a lawful 
means to a lawful end.” Hughes v. Superior Court of Cali­
fornia, 339 U. S. 460, 466; New Negro Alliance v. Sanitary 
Grocery Co., 303 U. S. 552. “Nor may a state enjoin peace­
ful picketing merely because it may provoke violence in 
others.” Milk Wagon Drivers Union v. Meadowmoor 
Dairies, supra, at p. 296. Here there was no violence pro­
voked by the picketing of department stores, yet the court 
below refused the requested injunction against continued 
denial of the right of the Negro citizens of Albany to peace­
fully picket such establishments (R. Anderson, 3).

2. The testimony of the Chief of Police established that 
there were demonstrations in front of City Hall in groups



26

of 2 and “in groups of 10, 9 or as high as 25 or 28” (Tr. 
Vol. I, 144A, Vol. II, 274A, 282A). Upon direct examina­
tion by the Mayor, the Chief was asked:

Q. Did any of these people relate to you why they 
were demonstrating ? A. They were demonstrating be­
cause the City Commission, in their own words “would 
not yield to their demands” (Tr. Vol. I, p. 144A).

Prior to this, the Chief had testified that some of these 
demonstrations occurred after July 24, 1962, the date of the 
filing of this suit (Tr. Vol. I, p. 144A; Yol. II, 357A). It is 
thus undisputed that after this suit was commenced there 
were small demonstrations against segregation in front of 
City Hall. There was no violence accompanying these pro­
tests. These persons were also arrested (Tr. Vol. II, 274A- 
280A).

The right of Negroes to protest against state imposed 
racial segregation cannot be gainsaid. NAACP v. Alabama, 
357 U. S. 449. The Albany Movement was an organized 
protest against such segregation. Its methods of protest 
were unique. NAACP v. Button, 371 U. S. 415. Small 
groups in addition to picketing prayed in front of City Hall. 
Such protest demonstrations against segregation are like­
wise within the First Amendment’s guarantees of free 
speech, peaceable assembly, and the right to petition the 
government for redress of grievances. Edwards v. South 
Carolina; NAACP v. Button, supra; Garner v. Louisiana, 
368 U. S. 157, concurring opinion of Justice Harlan; they 
are protected against city abridgment by arrest by the 
Fourteenth Amendment. Edwards v. South Carolina, 
supra; Fields v. South Carolina, 375 U. S. 44. Despite this, 
the court below refused to enjoin such arrests.

3. On several occasions, December 12th, 13th and 17th, 
1961, and July 10th, 11th, 21st and 24th, 1962, large num-



27

bers of Negro anti-segregation protest demonstrators 
ranging from approximately 32 in number to 267 on De­
cember 12, 1961, left a Negro church, in Albany and at­
tempted to walk, two abreast, upon the sidewalk to the City 
Hall a few blocks away (Tr. Vol. I, 49A, 67A, 124A, 187A- 
188A, 258A). On the first occasion, the marchers reached 
City Hall. They were stopped and asked if they had a 
parade permit. When they failed to produce a permit, they 
were ordered to disperse. Upon failure to do so, they were 
arrested. Similar incidents occurred on the other dates. 
The Chief of Police testified that on all of these occasions 
the marchers blocked traffic and the sidewalks and walked 
against the traffic lights (Tr. Yol. I, 42A-46A, 55A, 68A). 
Dr. Anderson testified that traffic signals were observed and 
the sidewalks were not blocked (Tr. Vol. IV, 895A-896A).

The District Court made no specific finding of fact re­
garding whether the testimony of the Chief of Police or Dr. 
Anderson was correct. But assuming that the testimony of 
the Chief of Police was correct, the question remains 
whether this blocking of traffic and disobeying traffic sig­
nals presented such a clear and present danger to the peace 
and safety of the citizens of Albany as to justify the Dis­
trict Court in refusing to issue an injunction against ar­
rests for these otherwise peaceful demonstrations against 
segregation. The answer on this record is obvious. There 
was no such clear and present danger as to justify abridg­
ment of First Amendment rights by arrest. Edwards v. 
South Carolina, supra.

The record shows that what the demonstrators intended 
was to walk two abreast upon the sidewalks, observing all 
traffic signals, and holding a one-hour meeting in front of 
City Hall protesting segregation (E. Kelley 11). Appel­
lants specifically prayed for an injunction enjoining the city 
officials from “continuing to pursue a policy of denying to



Negro citizens the right to peacefully protest against state 
enforced racial segregation in the City of Albany, Georgia, 
by peacefully walking, two abreast, upon the public side­
walks of the City of Albany, observing all traffic signs and 
regulations, to the City Hall in the City of Albany, Georgia 
and peacefully assembling in front of City Hall, and peace­
fully speaking out against such segregation during a period 
of not more than two hours during the day, when traffic to 
and from places of business and employment is not at its 
peak” (ft. Anderson 8). This injunction the District Court 
refused to issue although the record is clear from Dr. An­
derson’s testimony (Tr. Vol. IV, 895A-896A) and his letter 
to the City Manager (It. Kelley 11) that this was the kind of 
mass demonstration which the Albany Movement undertook 
to hold.

City officials have strained hard to find in this record 
such advocacy of violence, or threat of violence, or actual 
serious violence accompanying these mass demonstrations 
as would justify the arrests of the demonstrators, Feiner 
v. New York, 340 U. S. 315. However, these officials have 
wholly failed to sustain their burden of showing such ad­
vocacy, actual or threat of violence, as would lead a court 
of equity to deny appellants the relief against arrests for 
peaceful protests which was sought, Edwards v. South 
Carolina, supra; Cantwell v. Connecticut, 310 U. S. 296; 
Terminiello v. Chicago, 337 U. S. 1.

In the first place, there was never any violence by any 
appellant, any member of the Albany Movement, or any 
onlookers directed against the white community. Secondly, 
there was never any violence directed by the white com­
munity against any appellant, any member of the Albany 
Movement or any members of the Negro community. 
Thirdly, the violence which did occur was directed only 
against the police and occurred in each instance only after



29

the leaders of the Albany Movement or other demonstra­
tors had been arrested for peacefully protesting against 
segregation (Tr. Vol. I, 120A-121A, 123A-124A, 137A, 
139A, 140A; Vol. II, 330A, 335A). Fourthly, the little vio­
lence which did occur was perpetrated by onlookers, who no 
one could identify, or by persons unconnected with the 
demonstrations (Tr. Vol. I, 257A; Vol. II, 364A; Vol. Ill, 
620A-624A) and who were so few they could not be appre­
hended by the police, although virtually all available police 
were on the scene plus reinforcements (Tr. Vol. I, 124A- 
127A; Vol. II, 360A). The violence which the police claim 
occurred is set forth in the City’s brief (Consolidated Brief, 
Kelley, p. 11). There, it is stated: “One officer was hit by a 
bottle (449A) a state patrolman was hit in the face by a 
rock, breaking two teeth (510A-524A); a newspaper re­
porter was hit (472A); another officer had a bottle splatter 
over his feet (618A) ; another had to duck to avoid being hit 
(545A); and another was hit on the leg (536A). One of the 
motorcycles was hit with a rock (691A).” At no time was 
there such disorder that the police proved inadequate to 
preserve law and order (Tr. Vol. I, 194A, 203A-206A, 
226A-227A).

It is undisputed that the leaders of the Albany Movement 
advocate non-violence as the only means for achieving de­
segregation (Tr. Vol. I, 92A, 94A, 95A; Vol. Ill, 638A). 
Moreover, the record shows that the Albany Movement 
conducted clinics to instruct persons in the art of non­
violence (Tr. Vol. Ill, 671A-672A) and aided the police 
in restoring order when violence erupted (Tr. Vol. I, 94A- 
95A, 136A-137A, 142A; Vol. II, 330A-331A, 333A). Fur­
ther, when violence did occur on July 24, 1963, the follow­
ing day Dr. King called for a Day of Penance (Tr. Vol. I, 
145A). Consequently, Dr. King not only advocated non­
violence and taught its methods but publicly condemned 
those who engaged in violence. The record is clear that



30

there was no violence in the City of Albany after this Day 
of Penance on July 25, 1962 and until the hearings below 
ended on September 26, 1962. Despite this, however, the 
District Court refused to issue an injunction as prayed 
enjoining the police from arresting Dr. King and the others 
who lead the marches to City Hall.

Certainly, the constitutional rights of these Negro lead­
ers cannot be denied simply because violence by others 
might accompany their exercise. Cf. Cooper v. Aaron, 358 
U. S. 1; Buchanan v. Warley, 245 U. S. 60. In Congress of 
Racial Equality v. Douglas, 318 F. 2d 95, this Court held 
that: “These fundamental rights to speak, assemble, seek 
redress of grievances and demonstrate peacefully in pur­
suance thereto cannot be abridged merely because a riot 
might be threatened to be staged or that the police officers 
are afraid that breaches of the peace will occur if these 
rights are exercised” (at 102). See also, Hague v. C. I. 0., 
307 H. S. 496. These marches which Dr. King and Dr. 
Anderson led were similar to the march of 187 Negro high 
school and college students in Columbia, South Carolina 
which the Supreme Court held in Edwards v. South Caro­
lina, 372 XJ. S. 229; Fields v. South Carolina, 375 TJ. S. 44, 
to be an exercise of the right of free speech, the right of 
peaceable assembly, and the right to petition the govern­
ment for a redress of grievances and protected against ar­
rest by the state by the Fourteenth Amendment. It was, 
therefore, plain error for the court below to refuse to en­
join future arrests for peaceful mass demonstrations of 
the kind pursued by the Albany Movement.

4. The arrests of Dr. King, Dr. Anderson and others 
who participated in these marches were on charges of vio­
lating the parade ordinance of the City of Albany (Tr. 
Vol. I, 43A, 53A-55A, 63A-67A). This ordinance (Consoli­
dated Brief Kelley, p. 34) provides: “All parades, demon-



31

strations or public addresses on the streets are hereby 
prohibited, except with the written consent of the City Man­
ager (Ch. 24, §35 of the City Code).” The ordinance, on 
its face, places a total prohibition on all parades, demon­
strations or public addresses except with the written con­
sent of the City Manager. The ordinance, on its face, con­
tains no guides for the discretion of the City Manager in 
granting or withholding his consent. In addition, the City 
Manager testified that he had no written policy guide (Tr. 
Yol. IV, 837A). There was not even a written application 
form for such consent (Tr. Yol. IV, 841A-842A). In short, 
consent of the City Manager was vested in his sole discre­
tion.

The city officials assert that there was no attack made 
upon the validity of this ordinance which they claimed in 
their suit, Kelley 20720, had been violated. Such assertion 
overlooks two facts. First, in their answer the defendants 
in the Kelley case denied that they had violated any “valid” 
ordinance of the City of Albany (R. Kelley, 29-30). Second, 
at the conclusion of the hearings in these cases the court 
below requested the parties to submit additional briefs or 
arguments. Appellants in Anderson, 20711, submitted pro­
posed findings of fact and conclusions of law in which they 
requested the court below to find as a fact that:

“Defendant, Stephen Roos, in his capacity as City 
Manager of the City of Albany has authority under the 
Albany City Code to issue permits for the holding of 
parades and demonstrations in Albany (R. 727, 
p. 1002). However there are no standards in the Al­
bany City Code which define what constitutes a parade 
(R. 727, p. 275) nor is there any written policy guide 
under which the City Manager determines when a per­
mit will issue (R. 727, pp. 1002-1003). There is not 
even a formal application blank which must be filled



32

out in order to obtain a parade permit (R. 727, pp. 
1008-1009). Consequently, a parade is whatever the 
Chief of Police, in his opinion, construes to be a parade 
(R. 727, pp. 275-76). He does not construe four pickets 
in one block as constituting a parade (R. 727, p. 306). 
Nevertheless on or about June 24, 1962, four Negro 
residents of Albany were arrested for picketing in 
the 100 block of Washington Street and charged with 
parading without a permit (R. 727, pp. 306-308).”

The court below was also asked to conclude as a matter of 
law that:

“A City Ordinance Requiring Application To An Official 
As A Prerequisite For Obtaining A Permit For A Pub­
lic Parade Or Assembly But Which Contains No Stand­
ard Of Official Action But Rather Allows Refusal Of A 
Permit On The Mere Opinion Of An Official That Such 
Refusal Will Prevent Riots, Disturbances Or Disord­
erly Assemblages Is Unconstitutional. Hague v. C. I. O., 
307 U. S. 496.”

There is no question that Albany’s parade ordinance is 
unconstitutional on its face. Hague v. Committee of Indus­
trial Organizations, 307 U. S. 496; Staub v. Baxley, 355 
IT. S. 313. That ordinance, on its face, imposes an uncon­
stitutional prior restraint upon the enjoyment of First 
Amendment freedoms. Staub v. Baxley, supra. Notwith­
standing the surface unconstitutionality of this ordinance, 
the court below refused to issue an injunction enjoining 
arrests for walking to the City Hall as requested (R. Ander­
son 8-9).

In addition to arresting demonstrators for allegedly vio­
lating the parade ordinance, the police officers also ar­
rested for disorderly conduct, willfully refusing to comply 
with the lawful order of a police officer, and congregating



33

on the sidewalk so as to obstruct same, as provided by other 
ordinances of the City of Albany (Consolidated Brief 
Kelley, pp. 34-35). These ordinances were not attacked 
below as unconstitutional on their face. In their answer the 
defendants in Kelley alleged “that the Chief of Police and 
other police officers of said city have sought in various and 
divers ways to thwart the peaceful attempts of said defend­
ants and others exercising their constitutional rights of 
freedom of assembly and of peaceful protest, by arresting, 
harassing and intimidating the defendants and others en­
gaged with them . . . ” (E. Kelley 30). The complaint in 
Anderson, 20711, was directed in its entirety to enjoining 
such arrests in the future.

Clearly, free speech, free assembly, and freedom to peti­
tion for redress of grievances cannot be denied to Albany 
Negroes “under the guise of constitutionally worded stat­
utes and ordinances” invoked in the name of preserving the 
public peace and safety. Edwards v. South Carolina, supra; 
Fields v. South Carolina, 375 U. S. 44; Cantwell v. Con­
necticut, 310 U. S. 296; Terminiello v. Chicago, 337 U. S. 1.

“The circumstances in this case reflect an exercise of 
these basic constitutional rights in their most pristine and 
classic form.” Edwards v. South Carolina, supra at p. 235. 
Here, as in Edwards, the demonstrators “were peaceably 
expressing” opinions “sufficiently opposed to the views of 
the majority of the community to attract a crowd and 
necessitate police protection” (at p. 237). The Supreme 
Court’s holding in the Edwards case is plainly apposite 
here:

“The Fourteenth Amendment does not permit a state 
to make criminal the peaceful expression of unpopular 
views. ‘[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



34

unrest, creates dissatisfaction with conditions as they 
are, or even stirs people to anger. Speech is often 
provocative and challenging. It may strike at preju­
dices and preconceptions and have profound unsettling 
effects as it presses for acceptance of an idea” (at 
p. 237).

Unmoved by these great constitutional principles, the 
court below refused to enjoin the thwarting of peaceful 
protest demonstrations by arrests “under the guise of con­
stitutionally worded statutes.”

II.

The C ourt Below D id N ot E rr  in  R efusing  to G rant 
th e  In ju n c tio n  R equested  by City Officials in  Kelley, 
2 0 ,7 2 0 .

Albany city officials have appealed from the refusal 
below to grant a permanent injunction against individual 
Negro leaders of the Albany Movement and the National 
Association for the Advancement of Colored People, the 
Congress of Racial Equality, the Southern Christian Lead­
ership Conference and the Student Non-Violent Coordinat­
ing Committee enjoining these individuals and organiza­
tions from:

“continuing to sponsor, finance, incite or encourage 
unlawful picketing, parading or marching in the City 
of Albany, from engaging or participating in any un­
lawful congregating or marching in the streets or 
other public ways in the City of Albany, Georgia; or 
from doing any other act designed to provoke 
breaches of the peace or from doing any act in viola­
tion of the ordinances and laws hereinbefore referred 
to” (R, Kelley, 10).



35

Such, an injunction was granted on July 20, 1962, without 
notice or hearing, returnable 9 days later. Attached to 
the complaint for such injunction was a letter which Dr. 
W. G-. Anderson, president of the Albany Movement, had 
written to the City Manager on July 19, 1962 requesting 
police cooperation in a proposed prayer vigil in front of 
City Hall (R. Kelley, 11). This letter was construed as a 
threat to violate the parade ordinance of the City of 
Alban} .̂ On July 24th the injunction was vacated, pend­
ing a hearing, by Chief Judge Tuttle of this court on the 
ground that the court below was clearly without jurisdic­
tion to entertain the case. Jurisdiction below had been 
predicated on Title 28, U. S. C. A., §§1331 and 1343(3). 
The complaint alleged that the action was brought “to 
vindicate . . . rights conferred by the Fourteenth Amend­
ment to the Constitution of the United States and 42 
U. S. C. A., §1985(3)” (R. Kelley, 2).

The alleged federal rights sought to be vindicated were 
those of citizens and inhabitants of Albany “to the free 
and equal use of the streets, sidewalks and other public 
places in and about the City of Albany; to secure to said 
citizens and inhabitants equal protection of the laws as 
guaranteed to them by the Constitution of the United 
States; and to secure to said citizens and inhabitants the 
free and uninterrupted use of their respective private 
property, free from organized mass breaches of the peace 
which tend to prevent and hinder plaintiffs and other duly 
constituted authorities from according to said citizens and 
inhabitants the equal protection and due process of law” 
(R. Kelley, 1-2).

After the injunction order of July 20th was vacated, 
the action came on for hearing on July 30th at which time 
the defendants moved to dismiss the action for lack of 
jurisdiction (Tr. Vol. I, p. 1A). The court below ruled as 
follows:



36

“I rule that the Court does have jurisdiction and I 
overrule the motion to dismiss and the plaintiffs may 
proceed” (Tr. Vol. I, p. 1A).

In its opinion of June 28, 1963, however, that court ruled 
that since the city officials had filed a counterclaim in an 
action brought by the leaders of the Albany Movement to 
enjoin arrests for peaceful picketing in which the city 
officials alleged substantially the same facts and sought the 
same relief as was sought in this action, it was unneces­
sary to determine the question of jurisdiction, unless the 
relief prayed for was granted with respect to denominated 
parties in this action who are not denominated parties in 
the Albany Movement leaders’ action. The defendant in­
dividuals and organizations did not appeal from the judg­
ment below denying the city’s request for a permanent 
injunction similar to the one vacated by Judge Tuttle.

However, the court below did not err in refusing to grant 
the requested permanent injunction. This court held in 
Congress of Racial Equality v. Clemmons, 323 F. 2d 54, a 
similar case brought by officials of Baton Rouge, Louisiana, 
that the District Court could not proceed to hear and de­
termine a complaint alleging facts similar to those alleged in 
this complaint and invoking the identical jurisdictional pro­
visions. The court ruled the facts there alleged attempted 
to state a federally granted right based on Title 28, U. S. 
C. A., §1343(3) and Title 42 U. S. C. A., §1985(3) but failed 
to do so since the complaint and the evidence did not show 
a cause of action arising under the Constitution and laws of 
the United States. Here, as in the Clemmons ease, “there 
is nothing in the complaint and nothing in the record to show 
purpose on the part of the defendants to deprive anyone 
of equal protection of the laws. On the contrary, the whole 
object of the demonstration was to secure equal protection 
of the laws for all. At most, the plaintiffs alleged and



37

proved that the defendants blocked traffic (for a short 
while) and that the . . . officials called a large number of 
police to the Courthouse, reducing police protection in other 
parts of the City” (at p. 60).

This case, as the Clemmons case, is fatally defective be­
cause the plaintiff city officials were deprived of no federal 
rights. “Blocked traffic inconvenienced some citizens, re­
duced police protection was a hazard to some citizens, but 
this does not mean that the rights adversely affected were 
federal rights” (at p. 61).

Again, as in the Clemmons case, the third fatal weakness 
is that the defendants here as there are private persons. “It 
is still the law that the Fourteenth Amendment and the 
statutes enacted pursuant to it, including 42 U. S. C. A., 
§1985, apply only when there is state action” (at p. 62).

Consequently, the court below did not err in refusing to 
reinstate the injunction which had been vacated by Chief 
Judge Tuttle.

III.
The C ourt Below Did Not E rr  in  R efusing the  In ju n c­

tion  R equested  by City Officials on T heir C ounterclaim  
in  Anderson, 20 ,711 .

Albany officials sought to save their proposed cause of 
action in Kelley by filing same as a counterclaim in the 
action brought by leaders of the Albany Movement to en­
join these officials from interfering with peaceful protest 
demonstrations through arrest of the demonstrators. How­
ever, the city officials failed to provide a basis for injunctive 
relief on either federal or state law grounds by failing to 
prove that any partj^ sought to be enjoined: 1) actually or 
willfully or intentionally deprived or attempted to deprive 
any other persons of the equal protection of state or federal



38

laws, 2) actually or willfully or intentionally prevented or 
attempted to prevent any police officer or other official from 
performing any duty imposed upon him by state or federal 
law, 3) actually advocated, engaged in or threatened any 
violence, or 4) actually violated or threatened to violate any 
valid law of the State of Georgia or any valid ordinance of 
the City of Albany.

As this court noted in the Clemmons case, the intention 
here was plainly to secure for everyone equal protection of 
the laws. The record here sustains this. Conclusively, the 
sole purpose and objective of the Albany Movement was 
elimination of racial discrimination against Negroes in the 
City of Albany. There was no proof of willful or inten­
tional action on the part of any person sought to be en­
joined to prevent any official from performing any duty 
imposed upon that official. The Chief of Police testified that 
he and his men were always able to control the situation. 
On the night of July 24, 1962, when the Chief claimed the 
greatest violence took place there was no such serious vio­
lence, as evidenced by the city’s own statement as to what 
occurred, to lead any court to believe that the leaders of the 
Albany Movement intended or had in fact accomplished any 
alleged unlawful purpose to prevent the city from function­
ing. Further, although the city officials proved that there 
was some violence directed at police officials there was not a 
shred of evidence that any of this violence was perpetrated 
by any of the leaders of the Albany Movement or any 
person associated with them or that any of these leaders or 
their associates advocated violence. As a matter of fact, 
the record shows that the Albany Movement leaders ad­
vocated non-violence and when the violence took place Dr. 
King called for a Day of Penance. If any valid law of the 
State of Georgia or any valid ordinance of the City of 
Albany was violated, the city officials failed to prove that 
such laws or ordinances were violated by any persons



39

sought to be enjoined or any persons associated with them. 
The parade ordinance, as demonstrated above, was invalid 
on its face as well as two of the state statutes which the city 
officials in their counterclaim alleged had been violated 
(Georgia Code, §26-530, Unlawful Assembly and Disturb­
ing the Peace, and Georgia Code, §26-902, Attempts to 
Incite Insurrection).6 Assuming the other ordinances to be 
constitutional on their face, and assuming further that 
these ordinances (obstructing sidewalk, willfully failing or 
refusing to comply with any lawful order of a police officer, 
and disorderly conduct) had been violated by a few onlook­
ers, these facts certainly did not furnish a constitutionally 
acceptable basis for enjoining peaceful protest demonstra­
tions against segregation. Edwards v. South Carolina, 
supra; Cooper v. Aaron, supra; Buchanan v. Warley, supra. 
Therefore, the court below did not err in refusing to grant 
the injunctive relief sought by the city officials by way of 
counterclaim.

IV.
The C ourt Below D id Not E rr  in  R efusing to  G rant 

In junctive  R elief R equested by City Officials Because 
These Officials Came In to  E quity  W ith U nclean Hands.

In the suit by Albany officials, Kelley, 20,720, to enjoin 
the leaders of the Albany Movement and civil rights organi­
zations, the United States filed a brief amicus curiae in 
which it urged the court below to deny the requested in­
junction on the ground that those sought to be enjoined 
were engaged in peaceful protest demonstrations against 
segregation which these officials were unconstitutionally en­
forcing in the City of Albany and, therefore, had come into 
equity with unclean hands. Anderson v. City of Albany,. 321

6 See footnote 3, infra.



40

F. 2d 649 (5th Cir. 1963). But this applies not only to the 
action brought by the city but to the relief sought by them 
on their counterclaim in Anderson, 20,711.

Moreover, the evidence here shows that not only did the 
city officials seek to enjoin mass demonstrations which they 
claimed would erupt into violence and civil disorder (which 
of course did not occur) but they also sought to enjoin pick­
eting involving four persons, two on one side of the street 
and two on the other, and small demonstrations in front of 
City Hall involving not more than 28 persons.

■Six volumes of testimony make clear that what the Al­
bany officials intended by the injunction sought was not 
maintenance of law and order but the maintenance of seg­
regation by injunction and arrest and a moratorium on 
First Amendment freedoms. Consequently, the officials of 
the City of Albany did not come into equity with clean 
hands. They were not entitled under this well establised 
equitable principle to the injunctive relief sought under 
the circumstances of this case. As this court said in WalJcer 
v. Galt, 171 F. 2d 613, 615 (5th Cir. 1948): “An actor in 
equity comes into a court of conscience and will not be 
allowed . . . relief otherwise than under the condition 
that he does equity upon his part.” Precision Company v. 
Automotive Company, 324 U. S. 806, 814; Keystone Driller 
Co. v. General Excavator Company, 290 IT. S. 240, 245; 
Brantly v. Skeens, 266 F. 2d 447 (D. C. Cir. 1959); Guadiosi 
v. Mellon, 269 F. 2d 873 (3rd Cir. 1959).

Finally, as Mr. Justice Frankfurter said in his concur­
ring opinion in Hurd v. Hodge, 334 IT. 8. 24, 36: “Equity 
is rooted in conscience. . . . In good conscience, it cannot 
be ‘the exercise of a sound judicial discretion’ by a federal 
court to grant the relief here asked when the authorization 
of such an injunction by the States of the Union violates



41

the Constitution—and violates it, not for any narrow tech­
nical reason, but for considerations that touch rights so 
basic to our society that, after the Civil War, their protec­
tion against invasion by the States was safeguarded by the 
Constitution.” Adherence to this equitable standard re­
quired the court below to deny the injunctive relief sought 
by the city officials in their action and on their counterclaim.

CONCLUSION

For all of the foregoing reasons, the judgment below in 
Anderson 20711 should be reversed and the District Court 
directed to issue an injunction enjoining the Albany City 
police from arresting: 1) persons who in small numbers 
peacefully picket drug, department and other private es­
tablishments open to the general public, 2) persons who 
participate in small anti-segregation demonstrations in 
front of City Hall in groups not exceeding 28 in number, 
3) persons who lead or participate in mass demonstrations 
against segregation by walking 2 abreast upon the side­
walk, observing all traffic signals, close to the building line 
or close to the curb so as not to obstruct pedestrial traffic 
on the sidewalk, and who thus walk to City Hall for the 
purpose of peacefully protesting against racial segrega­
tion in the City of Albany in a demonstration which does 
not exceed one hour and which takes place during that 
time of day when traffic to and from places of business 
is not at its peak.

For all of the foregoing reasons, the judgment of the 
court below denying the city officials any relief upon their 
counter claim in Anderson 20711 should be affirmed.



42

For all of the foregoing reasons, the judgment below 
denying the city officials all injunctive relief sought by 
them in their action, Kelley 20720, should also be affirmed.

Respectfully submitted,

Constance B aker Motley 
J ack Greenberg 
N orman C. A maker 

10 Columbus Circle 
New York 19, New York

C. B. K ing
221 South Jackson Street 
Albany, Georgia

D onald L. H ollowell
859% Hunter Street, N.W. 
Atlanta, Georgia

Attorneys for Appellants-Appellees 
in No. 20711 and for Appellees in 
No. 20720



43

C ertificate o f Service

This is to certify that I have this day served a copy of 
the foregoing Brief on the attorneys for Appellees- 
Appellants in No. 20711 and attorneys for Appellants in 
No. 20720, Eugene Cook, Attorney General of Georgia, 
40 Capitol Square, Atlanta, Georgia, H. G, Rawls, City 
Attorney, Albany, Georgia, H. P. Burt, Elberton, Georgia, 
and E. Freeman Leverett, Deputy Assistant Attorney Gen­
eral, Elberton, Georgia, by mailing a true copy of same 
to each of them at the addresses indicated herein, via 
United States Air Mail, Postage Prepaid.

January 3, 1964