Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., Brief AMicius Curiae in Support of Respondents

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 30595

OSCAR THOMIE, et al.
Plaintiffs-Appellants,
vs.

B.E. DENNARD, et al,
Defendants-Appellees.

Appeal From The United States District Court 
For The Middle District of Georgia

BRIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
JONATHAN SHAPIRO

10 Columbus Circle, Suite 2030 
New York, New York 10019

THOMAS M. JACKSON 
655 New Street 
Macon Georgia 31201

Attorneys For Plaintiffs-Appellants



Page

ISSUES PRESENTED ..................................... iii

STATEMENT OF THE CASE ...............................  1

STATEMENT OF FACTS ..................................  5

ARGUMENT .............................................  9
A. The Court Below Erred in Holding That

It was Barred From Issuing A Declaratory 
Judgment Regarding The Constitutionality 
Of The City Ordinance ...................  9

B. The Court Below Erred In Not Holding The 
Perry Parade Ordinance Unconstitutional
On Its Face ..............................  12

C. The Court Below Erred in Not Enjoining 
The Use Of Violence By Law Officers
Against Arrested Demonstrators ........... 17

CONCLUSION ...........................................  18

I N D E X

CERTIFICATE OF SERVICE 19



Table of Cases

J\ A u , de>***$> r * j r  w  ' n o h ' t c . , £22s
t V ^ e i S ^  $*9H5fc 390.^.S 611 (1968), ............

Davis v. Francois, 395 F.2d 730 -----
(5th Cir. 1968) ....

Freedman v. Maryland, 380 U.S 51 (1965)

. Guyot v. Pierce'- 372 F.2d 658 (5th cir. 1967)
t c> >o w

Hague v. C.I.O., 307 U.S 496 (1938)

Kelly v. Page, 335 F.2d 114 (5th Cir. 1964)i/

LeFlore v. Robinson p 2d /cu-t, r>-
Nov. 12, 1970) ...7777. ----  (5th Clr*

LeFlorev. Robinson, slip op,

^Robinson v. Coopwood 292 F. Supp. 926
(N D. Miss. 1968), ajf^^-gtSt-FTaa li+f „ (5th Cir. 1969f.........

V'

«/

Sh1471®1969)h 7 : . ? ity ° f Birn,in9hai"" 394 U.S 

Ware v. Nichols, 266 F. Supp 564 (N.D. Miss. 1967)

s  m )iiT s»'!'w?llace- 24° f . supp. ioo(M.D. Ala. 1965) ............. _ _
y/ V° 1 V V ' 5 9

10
— »

>7 7 '/
10 " >' K »

12

10

18 3
17

b / 7iv/

—  10, 15,

^ 5

12

10

. / 1 r̂al L *^v -5<70 Cm.]; fa ^  ̂
Zwickler v. Koota, 387 U.S 241 (1967)

18

' V10
Statute

J 28 U.S.C. § 2283
'Tv U5c- $

<+U~h rj / <46 / i/ JT
5, 10,12

li



ISSUES PRESENTED

II.

III.

Whether the court below erred in holding that it 
could not grant declaratory relief regarding the 
constitutionality of a city parade ordinance 
challenged on the ground it violated the First 
Amendment to the Constitution of the United States?

Whether the parade ordinance of the City of Perry, 
Georgia which contains no provision for judicial 
review of denials of parade permits is unconstitu­
tional on its face as violating the First Amendment?

Whether the court below erred in failing to make 
firicli.ric}s of facts and failing to grant injunctive 
relief when presented with evidence showing mis­
treatment by law enforcement officers of arrested 
demonstrators?

iii



TN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 30595

OSCAR THOMIE, et al,
Plaintiffs-Appellants, 

vs.
B.E. DENNARD, et al.,

Defendants-Appellees.

Appeal From The United States District Court 
For The Middle District of Georgia

BRIEF FOR PLAINTIFFS-APPELLANTS

STATEMENT OF THE CASE

This is an action commenced in the United States District
Court for the Middle District of Georgia seeking to challenge the

. , _ k* j- c-'-'constitutionality on its face and as applied of the-parade, ordin-/
U'l' \l */

ance^of Perry, Georgia^ a  declaratory judgment was sought

*/ The full text of the Ordinance5 and of a i«oiifyin.j ^  
amendment are as follows:



O-dhly )
that the ordinanc^/or^iairface and as applied violated freedom 
of speech, assembly, and the right to petition for a redress of 
grievances, as guaranteed by the First and Fourteenth Amendments

'■*/ (Continued)
PARADES AND PROCESSIONS

Sec. 13-1. SHORT TITLE --- This chapter shall hereafter
be known and may be cited as the "Parade Ordinance."
(Ord. of 5-9-63, § 1)
Sec» 13—2. DEFINITIONS --  (1) Parade and procession.
The terms "parade" and "procession" shall be synonymous 
and interchangeable and shall consist of two or more 
persons walking or riding on public streets and side­
walks in the city for the purpose of display, or com­
memoration.

(2) Participant. The term "participant" shall mean 
and include any individual physically engaged in a parade 
or procession and any other individual abetting same.

(3) Sponsor. The term "sponsor" shall mean and in­
clude any person, firm, partnership, association, cor­
poration, company, church, or organization of any kind. 
(Ord. of 5-9-63, § 2)
Sec. 13-3. DECLARATION OF PURPOSE --  It shall be the
purpose of this chapter to provide continuing convenient 
usage of the streets and sidewalks in the city, to the 
general public in the pursuit of their lawful occupa­
tions, activities, and travels, and in the furtherance 

traffic safety to the citizens of the community.
(Ord. of 5-9-63, § 3)
Sec. 13-4. PARADE PERMITS --  REQUIRED --- It shall
be unlawful for any person to be a participant in any 
parade not authorized by a parade permit issued by the 
city clerk. (Ord. of 5-9-63, § 4)
Sec. 13-5. SAME --  PROCEDURE TO OBTAIN --- Each parade
shall have a sponsor who shall make written application 
to the mayor and council, two weeks prior to date of 
parade, requesting a parade permit. Such application 
shall set forth the date contemplated; the time and 
duration of same, the streets and sidewalks to be tra­
versed, the kind and number of vehicles to be used, 
if any, the approximate number of participants, the

-2-



/fe- 12
to the constitution (A. T®) (References are to Appellant's
Appendix (A); page citations are to the pagination found at the 
top of each page). Injunctive relief was also requested 
against the arrest and prosecution of persons for violating 
the ordinance, and specifically against the prosecution of per­
sons arrested on certain specified dates in the past# .

jV (Continued)
object and intent of the parade, and the individual interest 
of the sponsor making the application.

(2) Such application shall be considered by the mayor 
and council at a regular or special meeting and dependent 
upon local exigency and in their discretion, the mayor and 
city council may approve or disapprove same. if approved, 
the city clerk shall issue the permit. if disapproved, the 
city clerk shall remit deposit as required in Section 13-6. (Ord. of 5-9-63, § 5)
Sec. 13-6. SAME   FEE   The fee for a parade permit
shall be fifteen dollars and such amount shall be tendered 
with the application. (Ord. of 5-9-63, § 5; Ord. of 6-1-65)

Cross reference --- Occupational license fees, § 11-13
Sec. 13-7. DURATION OF PARADE --- No parade shall exceed
thi^ty minutes in duration and the continuance of any parade 
for a longer duration shall constitute a violation of this 
Chapter. (Ord. of 5-9-63, § 6)

MINUTES: PERRY CITY COUNCIL, May 12, 1970
A motion by H.E. Smith, seconded by Dan Britton that the 

Mayor be authorized to take applications for parade permit to 
come up Spring Street and down Highway 41 at a minimum of

hour notice and to have discretion of issuing those per­
mits as he sees fit until further notice for this purpose only. 
The traffic control to control this situation will be left up 
to the Chief of Police and Lt. Abernathy at their discretion. 
The fifteen dollar fee will be collected for each occasion.



An injunction was also sought against any form of harassment or
intimidation of persons attempting to exercise their First

(7Amendment rights (A. 2&j
The action was commenced o n ' { ^ 4 ^  1970, by the plain­

tiffs as individuals and as representatives of the class of 
black citizens who had in the past and who wished in the future
to exercise their First Amendment rights, but who had been arrestee 
and threatened with prosecutions pursuant to the p m f e  ordinance'^’
(A. 2-3). They wished to continue their constitutionally pro­
tected activities but the pendency of prosecutions, the threat 
of future arrests and prosecutions, and the use of violence by 
police officials had the effect of discouraging them in so doing
so that the exercise of those rights had been deterred and chilled

N - h T(A. «=ae).
—  A The defendants-appellees are officials of the city of

u . inrlnHinrr oh-iof of nnl iro ' rPerry, ftaorgjj, including the chief of police,' the
Chfiyi, i / u a/
•it+r attorney; M  members of the pity, coun&trt; All o

-iv-C j
yor, the

members of the pityx couni 
officials were responsib 
ordinance*” Ct-v'Ji

lU ô cA j.

rs of the city/council- 7 1
le for the enforcement of 1

cruSLZ.„
Z.JJ, k

f thes<^
the challenged

1970, the district court held an eviden-

cV
inn Tnrr. trr-it1

-J— the hear; - < W i b u ^
trimr-ror— pr r -

USQ-—,

'7

5.3- r r ) .1 • ‘ trA* (A 4 ^   ̂/ (
Testimony was given (which is summarized bê Loy;) con- ,

c-7 CL̂£*̂yu,-fu*{ **< Trt. u / f 6 f CaM^ (tfj/
nts Briefly,cerning events

it dealt with demonstrations held by black citizens to protest
certain policies and actions by the city and the county board of

h£-c
cJ. J.

dtl ~  UA VU^V'^tvt



a. £o~f( sL " CnOyvdl UtUlt^, inu^cri^j L̂i\ cdh J k  0/  cn^'&ii (
education^ arrests made
of violence against arrested demonstrators.

On July 9, 1970, the district court handed down its 
decision (A. 41>7 4-30). After reciting certain findings of 
facts, the court held that it was barred from granting either 
declaratory or injunctive relief. its conclusion was based on 
the applicability of 28 U.S.C. § 2283, the federal anti-injunctic 
statute, which it said barred enjoining pending state criminal 
prosecutions. As a corollary, the court held that it could not 
issue declaratory relief since that would have the effect also of
interfering with pending state prosecutions. Therefore, all 6 ^

or relief were denied without the court reaching the
Co-Â>-/Jc C 4 . 3 VO - S7 y 5“ J ,merits of the -hnllnngn tn tlm p m inli 111 iTI II 11 ITT' I III M IIM I 11 111 i ■ 11 

grounds (A. 426-430).
The Court did not discuss the plaintiffs' request for a 

declaration and injunction regarding the future enforcement of 
the ordinance. Nor did it make any findings of facts concernino 
or indeed discuss, the evidence dealing with police mistreatment 
of demonstrators. f The court's order
on July 14, 1970 
(A. •«•*•).

was entered 
) and a timely notice of appeal was filed

Statement of Facts
The demonstrations giving rise to this case came out of 

discontent among black citizens of Perry, Georgia, with acts and 
omissions of local governing bodies. Primarily these involved 
problems with the board of education. The demonstrations gave

b

/ T y r y ?  &  ** -te*
W. —  *4. 'n ^urt.

Wh* Ob’#



rise to a number of arrests for parading without a permit in 
violation of a city ordinance. Although testimony was given 
concerning other problems in the community this statement of 
facts will by and large be limited to the circumstances of the 
demonstrations and arrests.

The Perry parade ordinance, set out in full in the margin 
above, requires that two weeks before the proposed date of any 
parade or procession (broadly defined as two or more persons 
walking or riding in public streets and sidewalks for the purpose 
of display or commemoration) an application for a permit must be 
made to the mayor and council, accompanied with a $15.00 fee.
The application must set out the date, the time and diration of 
the parade, the route, the number of participants, the object 
and intent of the parade, and the interest of the sponsor making 
the application. The application will be considered by the mayor 
and council and they may approve or disapprove it "dependent upon 
local exigency and in their discretion." No parade will last 
more than thirty minutes. No provision is made for any judicial 
review of a denial of a permit (A. 21-22).

In March, 1970, a white group marched to protest integra­
tion of the schools. Both the fee and time period were waived 
by the council (A. 420). Subsequently, black citizens asked for 
and obtained a permit for a demonstration; on this occasion the 
fee and time period were also waived (A. 420-421)

On May 4, 1970, however, an application by black citizens 
for a demonstration later the same day was denied. on the next

-6-



day, May 5, another application was made for a demonstration to 
be held on May 9, a Saturday. This was also denied by the 
mayor and council, ostensibly because they believed the situation 
in town was too "tense" (A. 220-221; 422). On May 9, black 
citizens met in a building in Perry known as the Spring Street 
Annex (A. 43). The group decided that despite the denial of 
their application they would march to the Board of Education 
offices (A. 49-50; 97-98). Before reaching their destination, 
they were met by police officiers and placed under arrest for 
marching without a permit (A.52). The people were crowded into 
buses, and, according to the testimony of plaintiff Thomie, some 
sort of chemical was sprayed into the bus he was in (A. 53-54; 147). 
When the demonstrators were at the place of incarceration two of 
the leaders were kicked and otherwise mistreated (A. 55-56).

The next day, Sunday, May 10, another group of black 
citizens met at the annex to discuss the arrests of the day 
before. They felt that the arrests were unjustified and decided 
to try to march to the Board of Education by a different route to 
protest. They were also stopped, arrested for parading without 
a permit, and jailed (A. 164; 173-175; 189-190; 194-95). A 
chemical was also sprayed on this group after they had been put 
into a bus (A. 190). A similar occurrence took place on May 11 
(A. 425).

On May 12, the city council met and adopted a resolution 
giving the mayor discretion to permit marches along a specified 
route on only four hours notice (A. 423). Subsequent to that,

-7-



a succession of parades and demonstrations were held without 
incident (A. 423-424).

However, on Saturday June 6, another group was arrested 
for parading without a permit at the courthouse. About forty 
persons had resumed a meeting that had been interrupted by rain. 
When the meeting was over, the whole group started out from the 
courthouse to return to the Annex Square. They were stopped by 
the police officers (after walking 15 or 20 feet) and placed 
under arrest for parading without a permit (A. 352-355).

By agreement, a small number of persons were prosecuted 
and convicted in state court for violating the parade ordinance. 
The remainder of the cases were continued pending appeals and 
disposition of the present action.

-8-



ARGUMENT

THE DECISION OF THE COURT BELOW CONFLICTS 
WITH THE LAW OF THIS CIRCUIT AS ENUNCIATED 

IN LeFORE V. ROBINSON

As shown by the statement of facts, this is another 
in a continuing series of cases that raises the issue of the role 
of the federal courts in ensuring that the rights peacably to 
assemble, to petition for a redress of grievances, and to free 
speech are not abridged. In this instance, lengthy discussion 
is not required, since the case is governed in all significant 
aspects by the recent decision of this court in LeFlore v.
Robinson, ______  F.2d ______ (5th Cir., Nov. 12, 1970).

In LeFlore, challenge was made to an ordinance of 
Mobile, Alabama, that required a permit to be acquired before a 
parade could be held. This Court disposed of a number of issues 
which are present in this case, including:
(1) the power and duty of a federal court to issue a 
declaratory judgment regarding a city ordinance pursuant to 
which prosecutions are pending in state court; and
(2) the constitutionality of a parade ordinance that does 
not provide for immediate court review of a denial of a permit.

A . The Court Below Erred in Holding That It Was 
Barred From Issuing A Declaratory Judgment 
Regarding The Constitutionality of the City

Ordinance
Although the decision of the court below began with

-9-



a statement of the facts as it saw them, the actual holding of 
the court did not deal with the merits of this action. Rather, 
it rested on the grounds that 28 U.S.C. § 2283 barred injunctive 
relief against pending state prosecutions and that therefore 
declaratory relief also could not be given. For these reasons, 
all prayers for relief, declaratory and injunctive, were denied.

However, in LeFlore this Court specifically rejected 
such an approach. Rather, it held that regardless of the ulti­
mate resolution of the question of whether 42 U.S.C. § 1983 was 
an exception to the anti-injunction statute, a federal court was 
still required to examine challenged ordinances for constitutional 
invalidity under the First Amendment, even when state prosecutions 
are pending. LeFlore v. Robinson, slip op. pp. 11-14. This 
holding was fully consistent with a long line of authority in 
this Circuit, See, e.g., Davis v. Francois, 395 F.2d 730, 737, 
n*13 (5th Cir. 1968); Ware v. Nichols. 266 F. Supp. 564 (N.D.
Miss. 1967); Guyot v. Pierce. 372 F.2d 658 (5th Cir. 1967).

The holding of this Court in both LeFlore and Davis 
v. Francois were compelled by the decisions of the United States 
Supreme Court in Zwickler v. Koota, 389 U.S. 241 (1967) and Cameron 
Xi....Johnson, 390 U.S. 611 (1968). in both cases, the Supreme Court 
made it clear that the question of granting a declaratory judgment 
was to be considered before and wholly independently of whether a., 
injunction should or could be issued. Indeed, in Cameron, the 
Court itself first decided the declaratory judgment question and 
then declined to rule on whether 28 U.S.C. § 2283 was applicable

-10-



because of its decision on the first issue. Surely if 2283 
barred any decision on the request for declaratory relief, as 
the Court below held in the present case, the Supreme Court 
would have so ruled and would not have decided the question of 
whether the statute involved in Cameron was constitutional.

Thus, Cameron and LeFlore require reversal of the 
decision below. in addition, however, there is an independent 
reason why the court below erred in not reaching the merits of 
the challenge to the constitutionality of the ordinance here 
involved. The Complaint and proof herein clearly established 
a continuing controversy over the validity of the ordinance.
Not only had the plaintiffs and members of their class demon­
strated in the past and were arrested, but they desired to con­
tinue their activities in the future (A. 17-18).
However, the past and threatened future enforcement of the 
ordinance had and would have the effect of discouraging their 
activities (A. 17-18; 162-163). Protection was sought
against not only the pending prosecutions, but against future 
arrests for failures to comply with the challenged ordinance.

Thus, the plaintiffs clearly alleged, and proved, 
a continuing controversy with city officials that could only 
be resolved by a decision by the federal court as to whether the 
parade ordinance was constitutional and had to be complied with. 
Tbe resolution of this controversy would in no way involve or 
require the enjoining of any pending state prosecutions and

-11-



hence 28 U.S.C. § 2283 was simply inapplicable to that aspect 
of the case.

B. The Court Below Erred in not Holding The
Perry Parade Ordinance Unconstitutional 

On Its Face

Since, under LeFlore, the Court below clearly erred 
in not deciding the constitutionality of the parade ordinance of 
Perry, Georgia (Sec. 13-1-13-7, Ordinances of Perry, Ga., see 
above pp. 1 - 3 ), this Court could remand for an initial deter­
mination by that court of the issue. However, plaintiffs- 
appellants urge that it would be more appropriate for this Court 
to decide the question now since it is squarely governed by the 
decision in LeFlore.

In LeFlore, this Court held unconstitutional the 
Mobile, Alabama, parade ordinance on a ground directly applicable, 
viz., the absence in the ordinance of a provision "for prompt, 
Commission-initiated judicial review" of a denial of a parade 
permit (slip op. p. 35). Thus, the ordinance was invalid 
under the rule of Freedman v. Maryland, 380 U.S. 51 (1965), as 
expanded in Shuttlesworth v. City of Birmingham, 394 U.S. 147(1969).

The Perry, Georgia, parade ordinance has precisely 
the same infirmity. The procedures for acquiring a permit are 
set out in Sec. 13-5 of the ordinance. They require that 
persons seeking to hold a "parade" make written application to 
the Mayor and council two weeks prior to the date of the

-12- i



parade. Certain information must be provided, including the
date, time and duration, the route, the approximate number of
participants, and "the object and intent of the parade, and
the individual interest of the sponsor making the application".
The application will be considered by the Mayor and council at
a regular or special meeting, and they may approve or disapprove
the application "dependent upon local exigency and in their
discretion". if the application is disapproved the city clerk
shall remit the fifteen dollar fee and that, as far as the
ordinance is concerned, is the end of the matter.

The vice of such a regulatory scheme, as explained
in LeFlore, is that the absence of any provision for judicial
review may in fact allow the exercise of an unbridled censorship
over the exercise of constitutional rights even when facially
adequate standards are set out in the statute. The Court
pointed out that this is particularly true when the definition
of "parade" is so sweeping so as to require advance notice to
the city of any march (slip op. pp. 35-36). The definition of
"parade and procession" in the Perry ordinance is at least as

** /
broad as that in the Mobile ordinance struck down in LeFlore"

t/ The subsequent amendment as to time will be discussed below.
1'll/ Compare: "The terms 'parade' and 'procession' shall be synony­

mous and interchangeable and shall consist of two or more 
persons walking or riding on public streets and sidewalks 
in the city for the purpose of display, or commemoration" 
Sec. 13-2, Perry City Ordinance;

W i t h 1parade' is any formal public procession, march, cere- 
money, show, exhibition, pageant, or a group of persons or 
vehicles containing persons moving onward in an orderly,

V

-13-



That these concerns are not merely theoretical is 
amply demonstrated by the record in this case. The court below 
made much of the fact that parade permits were given on a number 
of occasions. But while it is commendable that First Amendment 
rights were not totally denied in Perry, the issue in this case 
is whether the ordinance led to denials in any instances. Thus, 
on May 4, 1970, an application was made for a parade for later 
that afternoon and was denied. No parade was held on that day 
(A. 421 ). On May 5, another application was made for a
parade in the early afternoon of May 9. This was denied, but not 
because of any of the specific standards of ordinance, e.g., con­
venient usage of the streets, traffic safety, etc. Rather, it 
was as the court below found because the Mayor and council decided

V
that a "tense" situation prevailed at that time (A. 422; 222).

Thus, the city departed from the standards of its own 
ordinance and denied a permit because they, on the basis of facts 
or information unchallengeable in any way, decided the town was 
too tense. If the ordinance provided for an immediate judicial 
review of this decision the plaintiffs would have been able to

**/(Continued)
ceremonious, or solemn procession, or any similar display in 
or upon any street, park or other public place in the city." 
Sec. 14-051, Mobile City Ord. (LeFlore v. Robinson, si.op.p.26)
A word should be said concerning the two-week advance notice 
provision. This had become in effect inapplicable because 
of a consistent policy of waiving it folloed by the Mayor and 
council. Subsequently, on May 12, a resolution was passed 
authorizing the Mayor to take applications on four hours 
notice and to issue permits on his discretion alone.

-14-



challenge the decision, find out on what information it was based 
and perhaps have it overturned in the four days between the denial 
of the permit and the date they wished to march.

As it was, with no such avenue provided for in the 
ordinance, on May 9 they were faced with either acquiescing in 
the city's decision and giving up their First Amendment rights or 
marching and subjecting themselves to criminal penalties. It 
is precisely this dilemma that is impermissible under Freedman 
and Shuttlesworth and that is the fundamental basis for the 
decision in LeFlore.

Two other incidents may be briefly noted to show 
the invalidity of the ordinance. On May 10, the day after the 
incident described above, a group of persons attempted to march 
to protest the arrests of the day before. Obviously, the 
necessity for immediate expression of protest makes applicable 
the language quoted in LeFlore (si. op. pp. 35-36) from Robinson 
v. Coopwood, 292 F. Supp. 926, 934 (N.D. Miss. 1968), aff'd, 415 
F .2d 1377 (5th Cir. 1969):

Advance notice is impossible where the demonstration 
results from a spontaneous group desire, and, even 
where there is sufficient time to give the requisite 
notice, the requirement necessarily destroys the feeling 
of security from official restraint and deters potential 
marchers from participating.

On that day the demonstrators were arrested for parading without 
a permit, as was another group demonstrating for the same reason
on May 11 (A, 164; 173-175; 425).

Finally, on a later occasion a group of demonstrater

-15-



held a meeting on the courthouse square. They were unmolested 
during the meeting, but when the group (approximately 40 persons) 
left at its conclusion 10 to 12 persons were arrested for parad­
ing without a permit. Thus the police chief made an ad hoc, 
and therefore unreviewable determination, that twelve people 
leaving a peaceful meeting together was a parade. Again, the 
necessity of the decisions in LeFlore and Robinson v, Coopwood is 
vividly illustrated by this incident.

Thus, the direct applicability of LeFlore to the
Vpresent case is clear and the decision below must be reversed .

jk_/ Just as in LeFlore other provisions of the ordinance that 
give rise to constitutional issues may be noted in passing 
(See, si. op. p.28, n.13). Although the ordinance pur­
ports to be concerned with traffic problems, by its terms 
it gives a much broader grant of discretion to the city 
council than does the Mobile ordinance. Thus Sec. 13-5 
allows the council to grant or to deny permits "in their 
discretion" and "dependent upon local exigency". That 
this allows consideration of factors other than those set 
out in the ordinance is, of course, illustrated by the 
council's denial of the permit for the May 9 march because 
it believed that the town was "tense".

Next, the two-week notice requirement is simply too 
long to be justified. The fact that it was waived 
regularly does not cure the problem, since waivers were 
or were not given on the basis of no discernable standards 
except the impermissible one of whether the council be­
lieved it was wise in the particular case.

Finally, the May 12 resolution has the practical 
effect of replacing the ordinance with a wholly different 
scheme. It gives the Mayor alone ungoverned discretion 
to allow or not allow parades on a specified route on 
four-hours notice.

-16-



c. The Court Below Erred in Not Ernoining 
The Use of Violence By Law Officers 
Against Arrested Demonstrators

In yet another respect this case is strikingly 
similar to LeFlore. In both, the issue of mistreatment of 
demonstrators after arrest and during incarceration was raised 
(see LeFlore, si. op. p. 41). In both, of course, the main 
focus of the action was on the constitutionality, facially and 
applied, of ordinances used against demonstrators. However, 
violence by law enforcement officers after arrests, whether 
such arrests be constitutionally valid or not, can have a power­
ful deterrent effect on the free exercise of First Amendment rights.

The evidence in this case involved incidents that 
occurred in connection with the May 9 arrests. Testimony, des­
cribed more fully in the statement of facts above, was given 
that arrested demonstrators were sprayed with a chemical after 
they were placed in busses and that certain persons were mis­
handled at the county prison farm. The district court, however, 
made no findings of fact concerning these claims and issued no
injunctive relief against police violence.

No reasons were given for the court's failure to
deal with this issue, although it can be assumed that it believed 
that since it could not interfere with pending criminal prosecu­
tions, it also should do nothing regarding these other claims.

We believe that this was plainly error. Ever si 
Kelly v. Page, 335 F.2d 114 (5th Cir. 1964) this Court has made 
it clear that federal district courts have a responsibility to

-17-



protect persons against all forms of illegal interference with
V

the exercise of First Amendment rights . This includes pro­
tection against unwarranted violence by law-enforcement officers. 
See, Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965).

Thus, in its order of remand, this Court should in­
struct the district court to make findings concerning the alleged 
mistreatment of demonstrators and to issue appropriate injunctive 
relief if necessary.

CONCLUSION

For the foregoing reasons appellants pray that the 
decision below be reversed with instructions to enter a declara­
tory judgment that the Perry, Georgia, parade ordinance is un­
constitutional and to issue such injunctive relief as may be 
proper.

Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON
JONATHAN SHAPIRO

10 Columbus Circle, Suite 2030 
New York, New York 10019

THOMAS M. JACKSON 
655 New Street 
Macon, Georgia 31201

V' And indeed, in Hague v. C.I.O., 307 U.S. 496 (1938), 
the Supreme Court also so held.

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CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the 
attached Brief of Plaintiffs-Appellants and the Appellants' 
Appendix on counsel for Appellees-Defendants by mailing the 
same air-mail, postage prepaid to D.P. Hulbert, Esq. and Tom 
W. Daniel, Esq., 912 Main Street, Perry, Georgia 31069.

i

Done this day of November, 1970.

C. i  c . '  u ,  S  [Isjhi
Attorney For Appellants-Plaintiffs.

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