Zellner v. Lingo Mimeographed Record

    IN THE
UNITED STATES

COURT of APPEALS
FOR THE FIFTH CIRCUIT

No.

John Robert Zellner, et al., 

v.

A l Lingo, Director of Public Safety 
for the State of Alabama, et al.,

Appellants

Appellees

Fred D. Gray 
34 North Perry Street 
Montgomery, Alabama

Jack Greenberg 
Constance Baker Motley 
Derrick A. Bell, Jr. 
Norman C. Amaker 
10 Columbus Circle 
New York 19, New York

Attorneys for Appellants

Hon. Richard Flowers 
Attorney General of Alabama 
State Administrative Building 
Montgomery, Alabama

John P. Kohn 
Hugh Maddox 
Bell Building 
Montgomery, Alabama

Beck & Beck 
Fort Payne, Alabama

Attorneys for Appellees

Appeal from the United States District Court 
for the Middle District of Alabama 

Northern Division

Mimeographed Record



I N D E X

1. Complaint 1

2. Motion for Preliminary Injunction 7

3- Motion for Leave to File Amended and 
Supplemental Complaint 9

4. Order 9

5- Amended and Supplemental Complaint with 
Exhibits 12

6o Amended Motion for Preliminary Injunction 30

7- Motion to Dismiss of A1 Lingo 32

8. Motion to Dismiss of John P. Kohn and 
Hugh Maddox 34

9- Motion to Dismiss of Harold Richards and 
W. J„ Tindle 36

10. Motion to Dismiss of Richmond Flowers 39
11. Motion to Dismiss of W. C. Holman 40

12. Order of June 19, 19^3 4l

13. Notice of Appeal 50

14. Phis Designation 51



Hi THE

UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF AIAEAMA 

NORTHERN DIVISION

JOHN ROBERT ZELLNER, Mobile, Alabama :
WILLIAM HANSEN, Pine Bluff, Arkansas :
JESSE HARRIS, Jackson, Mississippi :
WINSTON LOCKETT, New Haven, Connecticut:
RICHARD HALEY, New York, New York
ERIC WEINBERGER, New York, New York : F I L E D
ROBERT GORE, New York, New York :
ZEV AEIGNY, Chicago, Illinois, : May 3, 1963

Plaintiffs,

v.

AL LINGO, Director of Public Safety 
for the State of Alabama,

R, 0. Dobson 
Clerk

____ _________
Deputy Clerk

Defendant.

C O M P L A I N T

I

Tie jurisdiction of this Court is invoked pursuant to 

the provisions of Title 28, United States Code, §13^3(3). 

This action is authorized by Title h2, United States Code, 

§1983> and is brought to redress the deprivation of rights, 

privileges, and immunities secured to plaintiffs by the Con­

stitution of the United States. The rights, privileges and 

immunities sought to be secured by this action are rights,



privileges and immunities guaranteed by the due process, equal 

protection and privileges and immunities clauses of the Four­

teenth Amendment to the Constitution of the United States, as 

hereinafter more fully appears. Plaintiffs are threatened 

with the deprivation of these rights, privileges and immuni­

ties by the defendant, and other persons acting under defend­

ant's direction and authority. Defendant and those acting 

under his direction and authority are acting under color of 

the statutes, ordinances and regulations of the State of Ala­

bama. Jurisdiction is also involved pursuant to provisions 

of Article I, Section 8, Clause 3 (the Commerce Clause) of 

the Constitution of the United States.

II

This is a proceeding for a temporary restraining order, 

and a preliminary and permanent injunction enjoining the de­

fendant, his agents, subordinates, employees, attorneys and 

successors, and all persons in active concert and participation 

with him from enforcing and giving effect to defendant's 

stated intention to interfere, by arrest, prosecution and im­

prisonment, with the plaintiffs' constitutionally protected 

right to peacefully walk through the State of Alabama along 

the public highways.

Ill

Plaintiffs in this case are: John Robert Zellner,



3

William Hansen, Jesse Harris, Winston Lockett, Richard Haley, 

Eric Weinberger, Robert Gore and Zev Aelony. Each plaintiff 

is an adult citizen of the United States. Plaintiff John 

Robert Zellner is a citizen of the State of Alabama, but is 

presently residing in Atlanta, Georgia. Plaintiff William 

Hansen is a citizen of the State of Arkansas residing in Pine 

Bluff. Plaintiff Jesse Harris is a citizen of Mississippi, 

residing in Jackson. Plaintiff Winston Lockett is a citizen 

of Connecticut, residing in New Haven. Plaintiffs Richard 

Haley, Eric Weinberger, and Robert Gore are citizens of the 

State of New York and reside in New York City. Plaintiff Zev 

Aelony is a citizen of Illinois residing in Chicago.

IV

Defendant in this case is A1 Lingo, the Safety Director 

for the State of Alabama, with offices and headquarters in the 

State Capitol, Montgomery, Alabama. Defendant is an official 

of the State of Alabama, appointed pursuant to state statute 

by the Governor of the State of Alabama, and is empowered, 

inter alia, to enforce all laws pertaining to roads and high­

ways in the State, and to establish other rules and regula­

tions pertaining to the maintenance of safety, laws and order 

on such roads and highways. Code of Ala., Tit. 30, §§ 58(5k)- 

58(68).



h

V

Plaintiffs are Negro and white persons who are commit­

ted to working both individually and with groups for the peace­

ful elimination of racial discrimination and segregation in 

the United States, and view as an important aspect of their 

work the calling of the publicfs attention to the problem of 

racial discrimination* In connection with this aspect of their 

work, plaintiffs and others have planned and begun on May 1, 

1963, a "Freedom Walk" from Chattanooga, Tennessee, to Jackson, 

Mississippi, The walk is intended as a memorial to one William 

L, Moore, a citizen of Maryland, who recently set forth on a 

walk, covering a similar route, carrying signs urging an end 

to segregation, Moore was shot and killed en route near Gads­

den, Alabama, on April 23, 19^3? and it is the intention of 

plaintiffs to peacefully complete the walk which Moore began.

VI

Plaintiffs will carry signs indicating their desire that 

all men have equal rights, and intend to walk in groups of two 

abreast at 15-foot intervals. On that part of their walk in­

side the boundaries of the State of Alabama, plaintiffs plan 

to follow U. S, Route 11 by walking on the left side or should­

ers of the highway clear of and facing vehicular traffic, and 

when walking through towns and villages will walk on the side­

walks, and to pass through the counties of DeKalb, Etowah,



5

Saint Clair, Jefferson, Tuscaloosa, Greene and Sumpter. They 

intend to obey all traffic and other laws, rules and regula­

tions .

VII

Upon the public announcement of plaintiffs' plans to 

walk through the State of Alabama, which plans were conveyed by 

plaintiffs to the Governor of the State of Alabama, the de^ 

fendant stated publicly that he had given orders to the Ala­

bama Highway Patrol to arrest the plaintiffs if they crossed 

the Alabama State line as indicated by their previously de­

signated route. Defendant also reportedly stated that if plain­

tiffs entered the State of Alabama, "they will be arrested, 

placed in jail and charged with breach of the peace."

VIII

Defendant's threat to arrest, jail and prosecute for 

breach of peace, persons engaged in freedom walks has been 

carried out as to eight persons arrested in Etowah County 

near Attalla, Alabama, on May 1, 1963* Its enforcement by 

defendant when plaintiffs enter the State of Alabama on about 

to-wit Saturday, Mhy A, 19^3^ will constitute a violation of 

plaintiffs' constitutional rights under the due process, equal 

protection and privileges and immunities clauses of the Four­

teenth Amendment, and their rights under Article I, Section 8, 

Clause 3, of the Constitution.



6

If plaintiffs are arrested, jailed and prosecuted by- 

defendant when they enter the State of Alabama, they will be 

deprived of the right to their freedom of speech and expres­

sion, their right to have state law's applied to them fairly 

and without regard to their race or racial beliefs, their 

right to due process of the law and the right of national 

citizenship to move freely from state to state, all of which 

deprivations will cause plaintiffs to suffer Irreparable in­

jury and harm* They have no plain, adequate or complete remedy 

to prevent or redress these threatened wrongs other than this 

suit for injunctive relief* Any other remedy would be attend­

ed by such uncertainties and delays as to deny substantial 

relief, would involve a multiplicity of suits and prosecutions, 

cause further irreparable injury and occasional damage, vex­

ation and inconvenience to the plaintiffs.

WHEREFORE, plaintiffs respectfully pray that:

1. the Court advance this cause on the docket and 

order a speedy hearing of this case;

2. the Court, after hearing, issue a preliminary 

and permanent injunction against the defendant, enjoining him, 

his agents, subordinates, employees, attorneys and successors, 

and all persons in active concert and participation with him 

from carrying out defendant's intention to interfere with, by 

arrest, prosecution and imprisonment, plaintiffs' constitu­

IX



7

tionally protected right to peacefully walk through the State 

of Alabama along the public highways;

3, the Court further enjoin defendant from failing 

to take appropriate measures to guarantee plaintiffs' consti­

tutional rights while they are in the State of Alabama,

Plaintiffs pray that this Court will allow them their 

costs herein and grant such further, other, additional or 

alternative relief as may appear to the Court to be equitable 

and just.

s/_____Fred Gray____________
Fred Gray
34 North Perry Street 
Montgomery, Alabama

Jack Greenberg 
Constance Baker Motley 
Derrick A. Bell, Jr,
George Smith 
10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs

/Caption Omitted/

MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs upon their complaint filed herein move the



8

Court to grant a preliminary injunction herein against defend­

ant and all other persons under his direction and authority, 

including agents, subordinates, employees, attorneys and suc­

cessors, pending the final determination of this action and 

until the final order of this Court, enjoining him from taking 

any action to interfere by arrest, prosecution and imprison­

ment with the plaintiffs', John Robert Zellner, William Hansen, 

Jesse Harris, Winston Lockett, Richard Haley, Eric Weinberger, 

Robert Gore, Zev Aelony, constitutionaliy protected right to 

peacefully walk through the State of Alabama along the public 

highways and to take appropriate measures to protect and guar­

antee plaintiffs’ constitutional rights while they are in the 

State of Alabama, on the ground that unless restrained by this 

Court, defendant will by arrest, prosecution and imprisonment 

as referred to in the complaint deprive plaintiffs of their 

constitutional rights with resultant immediate irreparable 

injury, loss and damage to plaintiffs, during the pendency of 

this action as more fully appears from the complaint herein.



/Caption Omitted/

MOTION FOR LEAVE; TO FILE AMENDED 

AND SUPPLEMENTAL COMPLAINT

Plaintiffs, by their undersigned attorneys, move this 

Court on the annexed Amended and Supplemental Complaint for 

leave to file said Complaint on the ground that the facts, 

events, and circumstances alleged therein have occurred since 

the filing of the original complaint in this cause and on the 

further ground that said facts, events, and circumstances 

require the addition of new parties plaintiff and defendant 

all to the end that complete relief may be granted in the 

premises and a speedy and just determination of this cause 

may be had.

/Caption Omitted/

ORDER GRANTING LEAVE TO FILE AMENDED 
AND SUPPLEMENTAL COMPLAINT

Plaintiffs having moved this Court for leave to file 

an Amended and Supplemental Complaint herein and the Court 

having considered said motion and the grounds alleged there-



in and the Amended and Supplemental Complaint thereto 

annexed,

IT IS HEREBY ORDERED; ADJUDGED AMD DECREED THAT 

plaintiffs' Motion For Leave to File Amended and Supplemental 

Complaint he and is hereby G-RMTED.

DATED: May 18, 1963.

_______ Frank M. Johnson, Jr.
United States District Judge



Hi the
UNITED SPATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA. 
NORTHERN DIVISION

JOHN ROBERT ZELLNER, Mobile, Arkansas
WILLIAM HANSEN, Pine Bluff, Arkansas
JESSE HARRIS9 Jackson, Mississippi
WINSTON LOCKET, New Haven, Connecticut
RICHARD HALEY, New York, New York
ERIC WEINBERGER, New York, New York
ROBERT GORE, New York, New York
ZEV AEBONY, Chicago, Illinois
JAMES B. FOREMAN, Atlanta, Georgia
LAND! McNAIR, Jackson, Mississippi by his mother
and next friend, Nina McNair
CARVER GENE NEBLETT, Albany, Georgia by his father 
and next friend, Pleasant Neblett
SAMUEL CURTIS CHIRAH, JR,, De Funiak Springs, Florida 
by his father and next friend, Samuel Shirah, Sr.,

• Civil
• Action

: No.3

Plaintiffs,

v.

AL LINGO, Director of Public Sa,fety for the State of 
Alabama; HAROLD RICHARDS, Sheriff of De Kalb County, 
Alabama.; W. J, TINDLE, Solicitor for De Kalb County, 
Alabama; RICHMOND FLOWERS, Attorney General of the 
State of Alabama; JOHN p / K 0EN and HUGH MADDOX, 
Solicitors and Counsellors for George Wallace, 
Governor of Alabama; Dewey Colvard, Sheriff of 
Etowah County, Alabama, W. C. Holman, Warden of 
Kilby Prison, Montgomery, Alabama,

Defendants

FRED D. GRAY 
3^ North Perry Street 
Montgomery, Alabama

JACK GREENBERG 
CONSTANCE BAKER MOTLEY 
DERRICK A, BELL, JR. 
GEORGE SMITH 
NORMAN C. AMAKER 
10 Columbus Circle 
New York 19, New York

ATTORNEYS FOR PLAINTIFFS



12

AMENDED AND SUPPLEMENTAL COMPLAINT

I

Pursuant to Rule 10 (c) of the Federal Rules of Civil 

Procedure,, plaintiffs adopt by reference and reassert the al­

legations of paragraph I of the original complaint filed 

herein on May 3, 1963 relating to the jurisdiction of this 

Court. Plaintiffs also adopt each and every other allegation 

of said complaint as applicable to the facts, events and cir­

cumstances hereinafter alleged.

II

Parties plaintiff in addition to those set forth in 

paragraph III of the original complaint are: James R, Fore­

man, a Negro citizen of the United States and a resident of 

Atlanta, Georgia; .Tandy McNair, a Negro citizen of the United 

States and a resident of Jackson, Mississippi hy his mother 

and next friend, Nina McNair; Carver Gene Neblett, a Negro 

citizen of the United States and a resident of Albany, Georgia 

by his father and next friend, Pleasant Neblett and Samuel 

Curtis Shirah, Jr,, a white citizen of the United States and 

a resident of De Funiak Springs, Florida by his father and 

next friend, Samuel Shirah, Sr.

Additional parties defendant are also added hereby as 

follows: Harold Richards, Sheriff of De Kalb County, Alabama,

W e J. Tindle, Solicitor for De Kalb County, Alabama, Richmond 

Flowers, Attorney General of the State of Alabama, John P. Kohn



and Hugh Maddox., Solicitors and Counsellors for George Wallace, 

Governor of Alabama, Dewey Colvard, Sheriff of Etowah County, 

Alabama, and W . C, Holman, Warden of Kilby Prison, Montgomery, 

Alabama.

Addition of these parties, plaintiffs and defendants, is 

necessary due to the facts, events, and circumstances herein­

after alleged below.

III

Plaintiffs bring this action pursuant to Rule 23 (a) (3) 

of the Federal Rules of Civil Procedure on behalf of them­

selves and all persons similarly situated. Members of the 

class are too numerous to be brought individually before this 

court but there are common questions of law and fact involved, 

plaintiffs assert common grievances arising out of common 

wrongs and common relief is sought for plaintiffs and members 

of the class. Plaintiffs fairly and adequately represent the 

interests of the class.

IV

This is a proceeding for a preliminary and permanent in­

junction enjoining the defendants, their agents, subordinates, 

employees, attorneys, successors and all persons in active 

concert and participation with them from continuing to inter­

fere by arrest, prosecution, imprisonment and abuse of state 

judicial process with plaintiffs' constitutionally protected 

right to peacefully walk through the State of Alabama along



14

the public highways. This is also a proceeding to enjoin de­

fendants from interfering with this right hy enforcing an in­

junctive decree issued by the Circuit Court of DeKalb County 

on May 1963 as hereinafter more fully appears.

V

Plaintiffs show to the court the following facts, events, 

and circumstances which have occurred since the filing of the 

original complaint in this cause which require injunctive re­

lief in addition to that prayed for therein”,

l) On Friday, May 3, 19^3^ at approximately 2:30 - 2:4-5 

PoM«, plaintiffs with the exception of James R. Foreman and 

Landy McNair were walking along U. S. Highway 11 near the 

Georgia (Dade County) - Alabama (DeKalb County) border carry­

ing signs protesting racial segregation. These plaintiffs were 

walking two abreast approximately 15 feet apart. Plaintiffs 

Foremen and McNair were riding in an automobile at the rear of 

the group, As plaintiffs crossed the State line into Alabama, 

they were stopped by defendant A1 Lingo, Alabama Director of 

Public Safety and by police officers of the State of Alabama 

and DeKalb County acting under his orders, control and direc­

tion and were told by said defendant to disperse within one 

minute or they would be arrested for breach of the peace.

These statements were made by defendant over a loud-speaker 

mounted on top of an automobile. Defendant Lingo waited one 

moment and then told plaintiffs, "you have one more chance"



15

but plaintiffs did not disperse. He then directed the arrest 

of each plaintiff including plaintiffs Foreman and McNair who 

though not walking at the time, were accompanying the group 

via automobile.

2) Plaintiffs were taken immediately thereafter to the 

DeKalb County jail at Fort Payne, Alabama and there charged 

with conduct calculated to provoke a breach of the peace pur­

suant to Title 14, Sec * 119 (l) of the 1958 Alabama Code.

They were then incarcerated in said jail under $300.00 bond 

pending trial which is tentatively set for each on June 3,

1963 but which date may be later in the event demand for jury 

trial is made. Each plaintiff except plaintiffs, James Fore­

man and laiidy McNair who were released on bond on May 4, 1963 

was held in the custody of defendant Harold Richards, Sheriff 

of DeKalb County, Alabama until May 14, 1963 when they were 

transferred to the county jail at Etowah County in the custody 

of defendant, Dewey Colvard and subsequently to Kilby Prison, 

Montgomery, Alabama, where they are now being detained in the 

custody of defendant, W, C, Holman, Warden of Kilby Prison.

3) On May 7> 1963  ̂ defendants, Richmond Flowers, Attorney 

General of the State of Alabama, and Gordon Madison, Assistant 

Attorney General of Alabama, petitioned the Circuit Court of 

DeKalb County for a writ of temporary injunction against plain­

tiffs herein and the Congress of Racial Equality, a New York



16

corporation, the Student Non-Violent Coordinating Committee,, 

an unincorporated association with its principal place of 

business in Atlanta, Georgia, and the National Association 

for the Advancement of Colored People, a New York corporation. 

Said petition prayed for the issuance of a temporary injunc­

tion enjoining and restraining these plaintiffs and the or­

ganizations above-named from "conducting, sponsoring, publi­

cizing or participating in so-called 'Freedom Walks’ within 

the State of Alabama." On the same day, the Circuit Court of 

DeKalb County, without prior notice to plaintiffs and without 

an opportunity for them to b e heard on their behalf, granted 

"ohe prayer of the petition insofar as it applied to DeKalb 

County and issued a writ of temporary injunction applicable 

to DeKalb County. None of the plaintiffs have been served 

with a copjr of the injunction. Copies of the petition and the 

injunctive decree are attached hereto as exhibits "A" and "B" 

and are made a part of this complaint.

Plaintiffs aver that the above injunctive decree is an 

interference with, impediment to, and in contravention of the 

already existing jurisdiction of this Court inthese premises 

and therefore the enforcement thereof by the defendants above- 

named should be enjoined by this Court. This injunctive de­

cree violates the rights of these plaintiffs and those simi­

larly situated secured by the due process, equal protection, 

and privileges and immunities clauses of the Fourteenth



17

Amendment, and their rights under Article I, Section 8, Clause 

3, of the Constitution of the United States and therefore its 

enforcement should he enjoined hy this Court.

VI
Plaintiffs have been arrested by defendant Lingo and per­

sons acting under his control and direction and have been de­

tained in custody by defendants Richards and Colvard and per­

sons acting under their control and direction and are now being 

detained in custody by defendant Holman and persons acting under 

his control and direction all on account cf their exercise of 

their constitutionally protected rights to walk peacefully 

through the State of Alabama upon the public highways, to free­

dom of speech and protest against racial injustice- to equal 

protection cf the laws of the State of Alabama and the privi­

leges and immunities of United States citizens that they share 

in co;~tmon with all other American citizens* Plaintiffs are 

threatened wifch prosecution by defendant, W. J. dandle, and/or 

those acting under his control and direction on account of their 

exercJ.sc of these rights. Plaintiffs are faced with long pris­

on sentences and with fines if convicted for exercising these 

rights. Unless defendants named herein are enjoined by this 

Court, continued denial of plaintiffs' constitutional rights 

as indicated above will occur.

Plaintiffs and those similarly situated who desire in the 

future to walk peacefully upon the public highways of the State



18

of Alabama will be prevented from so doing by all the acts and 

conduct of defendants described above, particularly by the in­

junctive decree issued by the Circuit Court of DeKalb County. 

The named plaintiffs are presently being deprived of their con­

stitutional rights by their imprisonment and are threatened 

with further deprivation by the immanency of conviction and 

long-term imprisonment on criminal charges. Plaintiffs and 

others similarly situated desirous cf exercising their consti­

tutional rights in the aforesaid mr.'K::' are also threatened by 

future injunctions and continued intimidation and harassment 

by the abuse of the judicial processes of the State Courts of 

Alabama, particularly the injunctive powers of its courus of 

equity,

VI jr

Irreparable injury to plaintiffs and those similarly sit­

uated has occurred and the threat of continuing and future ir­

reparable injury and harm is imminent unless defendants are en­

joined and restrained by this Court from depriving plaintiffs 

and those similarly situated of their constitutional rights 

secured by the due process,, equal protection and privileges 

and immunities clauses of the Fourteenth Amendment to the Con­

stitution of the United States and by Article I, Section 8, 

Clause 3 of the Constitution. Plaintiffs have no other adequate 

or complete remedy other than this suit for injunctive relief.

WHEREFORE, plaintiffs on their behalf and on behalf of



19

others similarly situated, injured and threatened pray that:

1. This Court will advance this cause on the docket and 

order a speedy hearing;

2. This Court, after such hearing, will issue a prelimin­

ary and permanent injunction against the defendants, their 

agents, subordinates, employees, successors, attorneys and

all persons in active concert and participation with them from:

(a) Continuing to arrest plaintiffs and others simi­

larly situated under color of the laws of the State of Alabama 

on account of the exercise of their constitutional right to 

walk peacefully through the State of Alabama on the public 

highways;

(b) Continuing to imprison and imprisoning plaintiffs 

and others similarly situated under color of the laws of the 

State of Alabama on account of the exercise of their constitu­

tional rights to walk peacefully through the State of Alabama 

on the public highway;

(c) Prosecuting or threatening to prosecute plaintiffs 

and others similarly situated for criminal offenses under 

color of the laws of the State of Alabama on account of the ex­

ercise of their constitutional rights to walk peacefully through 

the State of Alabama on the public highways;

(d) Enforcing against these plaintiffs and others 
similarly situated the injunctive decree issued by the Circuit

Court of DeKalb County on May 1, 1963 attached hereto as



20

Exhibit "B".
(e) Abusing the judicial processes of the State of 

Alabama particularly the injunctive powers of its courts or 

equity, by seeking to obtain and/or by seeking to enforce and/ 

or by enforcing any injunctive decree of a court of equity of 

Alabama enjoining plaintiffs and others similarly situated 

from exercising their constitutionally protected rights.

3. Phis Court will grant such other, further, addition­

al or alternative relief as may be appropriate, equitable and 

just.

Fred D. Gray
3! Forth Perry Street 
Montgomery, Alabama

jack Greenberg 
Constance 3 kor Motley 
Derrick A. Bell, Jr. 
G-.crge Smith 
Borman. C. Amaker

10 Columbus Circle 
New York 19, Hew Ycrk

Attorneys for Plaintiffs



21

Exhibit "A"

STATE OF AIABAMA, Ex Rel, )
RICHMOND FLOWERS, as Attorney j
General of Alabama, )

Petitioner, j

)
JOHN ROBERT ZELINER; WILLIAM )
WALTER HANSEN, JR., SAMUEL )
CURTIS SHIRAH, JR,; RICHARD )
HALEY; WINSTON HENRY LOCKETT; )
JAMES RUFUS FCRMAN: ZEV AELONY; )
CARVER GENE NEBLETT; LANDY )
McNAIR; JESSIE LEE HARRIS; ROBERT )
EROOKCNS GORE; ERIC WEINBERGER; j
CONGRESS OF RACIAL EQUALITY; )
NATIONAL ASSOCIATION FOR THE )
ADVANCEMENT OF COLORED PEOPLE; )
STUDENT NON-VIOLENT COORDINATING )
COMMITTEE; JOHN DOE AND RICHARD )
ROE, )

Respondents. j

IN THE CIRCUIT COURT 

OF

DEKALB COUNTY, ALABAMA 

NO.

PETITION FOR PEREMPTORY OR TEMPORARY 
____________ INJUNCTION______________

TO THE HONORABLE W, J. HARALSON, AS JUDGE OF THE CIRCUIT 
COURT OF DEKALB COUNTY, ALABAMA, IN EQUITY:

Comes now the State of Alabama, acting by and through

and on relation of its Attorney General, Richmond Flowers,

its Assistant Attorney General, Gorgon Madison, and would show

unto this Honorable Court as follows:

1. That your Petitioner brings this proceeding in the

name of the State of Alabama, as the Attorney General of the

State of Alabama, and Assistant Attorney General of the State

of Alabama; that your Petitioner is the duly elected and



qualified. Attorney General of the State of Alabama and the 

duly appointed and commissioned Assistant Attorney General of 

the State of Alabama.

2. Your Petitioner avers that the names and addresses 

of the Respondents are as fodious: John Robert Zellner, At­

lanta, Georgia; William Walter Hansen, Jr., 1520 W. King 

Street, Pine Bluff, Arkansas; Samuel Curtis Shirah, Jr., P t0 r 

Box 5; DeFuniak Springs, Florida; Richard Haley, 11A Clinton 

Street, Apt. D, Hew York; Winston Henry Lockett, 6l8 Cleve­

land Avenue, Lebanon, Tennessee; James Rufus Forman, 2080 Del 

aar lane, Atlanta, Georgia; Zev Aelony, 4350 Garfield Avenue, 

Minneapolis, Minnesota; Carver Gene Neblett, 504 Madison, 

Albany, Georgia; landy McNair, 939 Carver, Jacknon, Mississ­

ippi; Jessie Lee Harris, Jackson, Mississippi; Robert Brookins 

Gore, 620 W. l47th Street ,; Hew York, Hew York; Eric Weinberger, 

Volunbown, Connecticut - Your Petitioner further avers that 

each of the Respondents is over the age of twenty-one years 

except that Respondents Samuel Curtis Shirah, Jr., Carver Gene 

Eeblett, and landy McNair are under the age of twenty-one 

years. Petitioner further avers that all of said Respondents 

who are under the age of twenty-one years are over the age of 

fourteen years >

3. The Respondent Congress of Racial Equality, Xne., is 

a New York corporation with its home office at 38 Park Row,



23

New York 38, New York.

k« The Respondent Student Hon-Violent Coordinating Com­

mittee is an unincorporated association and its principal ad­

dress is 6 Raymond Street, N.W., Atlanta lk, Georgia,

5. Respondent National Association for the Advancement 

of Colored People is a corporation organized under the laws 

of the State of New York and its principal place of business 

is 20 West kOth Street, New York 11, New York.

6. Your Petitioner avers that on or about, to-wit: May 

3, 1963* Respondents, who are Negro and White persons, are 

committed to work individually ar.d with divers groups, to 

create disorder and dissension among the citizens of the State 

of Alabama. Petitioner avers that the Respondents are profes­

sionally trained provokers, agitators and trouble makers who 

have come to the State of Alabama in order to create disorder 

and dissension* Petitioner avers that on or before, to-wit:

May 1, 1963, the Respondents, acting in concert with divers 

persons who are unknown to the Petitioner, did plan and organ­

ize a so-called "Freedom Walk" which began in Chattanooga, Ten­

nessee, on or about to-wit: May 1, 1963; and which continued

to a point within the jurisdiction of this Court. Such so- 

called "Freedom Walk" was calculated to receive nationwide 

publicity and has in fact received nationwide public attention 

and said so-called "Freedom Walk" was formed, sponsored and 

organized to create disorder and dissension within the State



of Alabama and within the jurisdiction of this Court and has 

provoked, disturbed and caused a breach of peace in the State 

of Alabama and within the jurisdiction of this Court.

7* Your Petitioner avers that on or about, to-wit: May 

3, 1963, Respondents did enter DsKalb County, Alabama, at a 

point on Highway 11 where said highway crosses the Alabama" 

Georgia State line and that at such time there were gathered 

at such place numerous persons numbering between two and three 

thousand, who had gathered at said point at said time above 

described creating a tense, strained and dangerous situation 

from the standpoint of peace and quiet» Your Petitioner avers 

that prior to the time that said Respondents entered the State 

of Alabama at said place that the Respondents knew that a tens 

and dangerous, and volatile situation existed at the point 

where they entered the State of Alabama and their activities 

were designed to create and did create the dangerous and vola­

tile situation which existed at said time and place.

8. On and prior to May 3* 1963* the Respondents in con­

cert with divers groups and persons had organized, sponsored 

and were participating in a so-called "Freedom Walk" which 

demonstration or participation was reasonably calculated to 

provoke a breach of the peace in the State of Alabama. Peti­

tioner avers that prior to the time said Respondents entered 

the State of Alabama they had given to the press numerous and 

periodic releases of their activities and that said "Freedom



25

Walk" had gained nationwide attention through the media of the 

press and other mediums of publicity and that as a result of 

such publicity and the avowed purpose of the Respondents to 

walk through the State of Alabama* and that such action at such 

time and at such place* was action which was reasonably calcu­

lated to constitute and provoke a breach of the peace within 

the State of Alabama and did constitute a breach of the peace. 

Petitioner further avers that Respondents Congress of Racial 

Equality* National Association for the Advancement of Colored 

People and student Non-Violent Coordinating Committee* have 

sponsored* financed and assisted groups which are so-called 

"Freedom Walkers" in their efforts and activities within DeKalb 

County and the State of Alabama and which are designed to 

foment violence within the State of Alabama and which are de­

signed to violate the laws of this State.

9. Petitioner avers that the Respondents were engaged 

in a so-called "Freedom Walk" and on or about* to-wit: May 3* 

1963* said Respondents did enter the State of Alabama* Dekalb 

County* Alabama* at a point on Highway 11 where said highway 

crosses the Alabama-Georgia State line and that at said time 

and said place the actions of the Respondents were reasonably 

calculated by them to constitute a breach of the peace within 

the State of Alabama and did so constitute a breach of the 

peace.

10. Your Petitioner further avers that said Respondents



26

were arrested in the Stat^ of Alabama, DeKalb County, Alabama, 

on to-wit: May Z> 19^3^ and were each charged with the offense

of breaching the peace. Your Petitioner further avers that 

opportunity was given to each of the Respondents to cease and 

desist from their activities of engaging and participating in 

this so-called "Freedom Walk". 2his opportunity was given to 

them on three occasions, but said Respondents refused to cease 

and desist, even though thev knew their actions were designed 

to and did create a dangerous and volatile situation In DeKalb 

County and the State of Alabama,

11. Petitioner avers that unless restrained the Respond- 

ents and other persons acting in concert with them will engage 

in other so-called Freedom Walks within this County and within 

the State of Alabama and that such "Freedom Walks" are designed 

and planned and organized to constitute a breach of the peace 

within the State of Alabama, Petitioner further avers that un­

less restrained the Respondents and others acting in concert 

with them are planning and plan to sponsor other so-called 

"Freedom Walks" within this State and within this County and 

that such so-called "Freedom Walks" are not bona, fide activi­

ties but are calculated to gain national publicity and to foment 

violence and to cause breaches of the peace within the State 

of Alabama and within this County, and that such activities 

have constituted a breach of the peace, and if the Respondents 

are allowed to continue their so-called "Freedom Walk" within



27

the State of Alabama, the peace, dignity and tranquility of 

the Sovereign State of Alabama will be irreparably injured.

13. Petitioner avers that there is no adequate remedy 

at law to prevent such continuing unlawful and illegal conduct 

by the Respondents.

WHEREFORE, PREMISES CONSIDERED, your Petitioner prays:

1. That this Court will take jurisdiction of this Bill 

of Complaint and cause the proper process to issue to the 

Respondents herein requiring them to plead, answer or demur 

within the time required by law or else suffer a decree pro 

confesso.
2. That this Court will issue a temporary injunction 

enjoining and restraining the above-named Respondents, their 

officers, servants, agents and employees, from further conduct­

ing, sponsoring, publicizing or participating in so-called 

'^Freedom Walks'' within the State of Alabama.

3. That upon a final hearing the Court will issue a perm­

anent injunction in accordance with the foregoing prayer for

a temporary injunction.

k, And your Petitioner prays for such other, further and

different relief as may he just in the premises and to which

he is in equity and good conscious entitled.

Bated: May 7th, 1963. /s/ Richmond Flowers
RICHMOND FLOWERS, Attorney 
General, State of Alabama



/si Gordon Madison________
GORDON MADISON, Assistant 
Attorney General, State of 
Alabama.

and

Is/ John P. Kohn_____________ _

Is/ Hugh tfeddox_______________

JOHN P. KOHN and 
HUGH MADDOX; as Solicitors and 
Counsellors for George Ci 
Wallace, as Governor of Alabama 
^Pursuant to Title 7> Section 72 
of the Code of Alabama, 19^0 
(Recompiled, 1958).

Exhibit "B’’

STATS OF ALABAMA, EX. REL., <RICHMOND KXWSRS, as Attorney 
General of Alabama,

)
IN THE CIRCUIT COURT
OF DeXALB COUNTS,

Petitioner, )
)
)
)
;

ALABAMA.

VS, HI EQUITY

JOHN ROBERT ZELDTER, et alls., NO.

Respondents.
/
)

TEMPORARY mTUNCTICN

A verified Petition in the above styled cause having been 

presented to me on this, the 7th day of May, 19^3 > &t 5*3® 

o'clock, P.M. in the City of Fort Payne, Alabama.

Upon consideration of said Petition, and tne public wel­

fare, peace and safety requiring it, it is hereby considered, 

ordered, adjudged and decreed that a peremptory or temporary



writ of injunction be, and the same is, hereby issued in ac­

cordance with the prayer cf said Petition*

It is further ORDERED, ADJUDGED and DECREED that the 

Respondents, and others identified in said Petition, their 

agents, members, employees, servants, attorneys, followers, 

and all others in active concert or participation with res­

pondents and all persons having notice of this order are 

hereby enjoined and restrained from any acts designated in 

the Petition, particularly: engaging in, sponsoring, or en­

couraging so-called "Freedom Walks'1' and from performing acts 

reasonably calculated to cause breaches of the peace in DeKalb 

County, Alabama, and from doing any acts designed to consum­

mate conspiracies to engage in said unlawful acts which are 

reasonably calculated to cause a breach of the peace in DeKalb 

County, Alabama*

Done on this 7th day of May, 1963*

/s/_W, J. Haralson 
CIRCUIT JUDGE" ’



/Caption Omitted/

AMENDED MOTION FOR PRELIMINARY INJUNCTION 

Plaintiffs, John Robert Zallner, William Hansen, Jesse 

Harris, Winston Lockett, Richard Haley, Eric Weinberger,

Robert Gore, Zev Aelony, James R. Foreman, landy McNair by 

his mother and next friend, Nina McNair, Carver Gene Neblett 

by his father and next friend, Pleasant Neblett, Samuel Curtis 

Shirah, Jr*, by his father and next friend, Samuel Shirah, Sr. 

upon their amended and Supplemental Complaint filed herein 

move this Court to grant a preliminary injunction against de­

fendants: A1 Lingo, Harold Richards, W, J, Tindle, Richmond

Flowers, John P. Kohn, Hugh Maddox, Dewey Colvard, W. C, Hol­

man, their agents, servants, subordinates, employees, success­

ors and attorneys, pending the final determination of this ac­

tion and until the final order of this Court, enjoining them 

from:
(a) Continuing to arrest plaintiffs and others similar ly 

situated under color of the laws of the State of Alabama on 

account of the exercise of their constitutional rights to walk 

peacefully through the State of Alabama on the public highways:

(b) Continuing to imprison and imprisoning plaintiffs and 

others similarly situated under color of the laws of the State 

of Alabama on account of the exercise of their constitutional 

rights to walk peacefully through the State of Alabama on the

public highway;



31

(c) Prosecuting or threatening to prosecute plaintiffs 
and others similarly situated for criminal offense under color 
of the laws of the State of Alabama on account of the exercise 
of their constitutional rights to walk peacefully through the 
State of Alabama on the public highways;

(d) Enforcing against these plaintiff and others similarly 
situated the injunctive decree issued by the Circuit Court of 
DeKalb County on fey 7> 19̂ 3 attached hereto as Exhibit ”E".

(e) Abusing the judicial processes of the State of .Alabama 
particularly the injunctive powers of its courts of equity, by 
seeking to obtain and/or by seeking to enforce and/or by en­
forcing any injunctive decree of a court of equity of Alabama 
enjoining plaintiffs and others similarly situated from exer­
cising their constitutionally protected rights on the ground 
that unless restrained by this Court, plaintiffs will be denied 
their constitutional rights by defendants with resultant im­
mediate irreparable injury, loss and damage to plaintiffs, dur­
ing the pendency of this action as more fully appears from the 
amended and supplemental complaint herein.



32

/Caption Omitted^
MOEXJI TT DISMISS

Now comes the Defendant,, A1 Lingo, by and through counsel, 
and moves the Court to dismiss this cause, and as grounds of said 
Motion sets down and assigns the following, separately and 
severally:

1. The Complaint fails to state a cause of action upon 
which relief can be granted.

2. It affirmatively appears that the Plaintiffs are work­
ing in concert with other individuals and groups who are not 
joined as parties in this cause.

3. It affirmatively appears that this is a suit against 
the State of Alabama by citizens of another state in violation 
of Amendment 11 to the Constitution of the United States.

1. This Court lacks jurisdiction over the subject matter 
of this cause.

5. This Court should refuse to take jurisdiction over the 
subject matter of this cause.

6. This Court lacks jurisdiction of the person of the De­
fendant A1 Lingo.

7. This Court should refuse to exercise jurisdiction 
over the person of the Defendant, A1 Lingo.

8. This Court lacks "equity" jurisdiction of the subject
matter of this cause.



33

9. This Court lacks "equity" jurisdiction over the person 
of the Defendant., A1 Lingo-

10, It affirmatively appears that this is a suit against 
the State of Alabama without its consent.

11. It affirmatively appears that the Plaintiffs seek a 
temporary injunction and the complaint is not verified and no 
affidavit has been filed in connection with the Motion for a 
Preliminary Injunction,

12, It affirmatively appears that Plaintiffs have "unclean 
hands".

13- Tb.e issues involved in this cause are now moot as ap­
pears by affidavit of the Defendant, A1 Lingo, which affidavit 
is attached hereto and made a part hereof as if fu.lly set out 
herein.

Ik, phis Court cannot presume the Defendant will not do 
his duty.

1 5, '.there is an adequate remedy at law.
16, The State of Alabama is an indispensable party to this 

cause,

17- This Court should not issue an injunction against the 
Defendant on the ground that the United States must guarantee 
to each State a Republican form of government under Article h, 
Section k, of the Constitution of the United States.

This 17th day of May, 19̂ 3»



/s/ Hichmond FlowersRICHMOND FLOWERS, as Attorney 
General of Alabama

/s/ Gordon MadisonGORDON MADISON, as Assistant 
Attorney General of Alabama
and-—

/s/ John P. Kohn
/s/ Hugh Maddox

J03N Pc KOHN and HUGH MADDOX 
Attorneys for A1 Lingo.
A TTRNEi'S FOR DEFENDANT
A.j znmc.

/Caption Omitted/
MOTION TO DISMISS

Now come the Defendants, John P. Kohn and Hugh Maddox, 
and move the Court to dismiss this cause, and as grounds of 
said motion set down and assign the following, separately 
and severally:

1. The Complaint fails to state a cause of action upon 
which relief can he granted.

2. It affirmatively appears that the Plaintiffs are 
working in concert with other individuals and groups who are 
not joined as parties in this cause.



3* It affirmatively appears that this is a suit against 

the State of Alabama by citizens of another state in violation 

of Amendment 11 to the Constitution of the United States.

4. Elis Court lacks jurisdiction over the subject matter 

of this cause.

5* Eiis Court should refuse to take jurisdiction over 

the subject matter of this cause.

6. Eiis Court lacks jurisdiction over the persons of 

the Defendants John P. Kohn and Hugh Maddox.

7* Eiis Court should refuse to exercise jurisdiction 

over the persons of the Defendants, John P. Kohn and Hugh 

Maddox.

8. Eiis Court lacks "equity" jurisdiction over the sub­

ject matter of this cause.

9* Eiis Court lacks "equity'1 jurisdiction over the per­

sons of the Defendants, John P„ Kohn and Hugh Maddox.

10. It aifirmatively appears that this is a suit against 

the State of Alabama without its consent.

11. It affirmatively appears that the Plaintiffs seek a 

temporary injunction and the complaint is not verified and no 

affidavit has been filed in connection with the motion for

a preliminary injunction.

12. It affirmatively appears that Plaintiffs have "un­

35

clean hands".



13* This Court cannot presume the Defendants will not do 

their duty.

14. There is an adequate remedy at law.

15• The State of Alabama is an indispensable party to 

this cause.

l6* This Court should not issue an injunction against 

the Defendants on the ground that the United States must guar­

antee to each State a Republican form of government under 

Article h, Section 4 of the Constitution of the United States,

This 29th day of May, 1963.

/s/ Hugh Maddox
HUGH MADDOX, as Attorney for 
John P. Kohn

/s/ John P. Kohn
JOHN Po KOHN, as Attorney for 
Hugh Maddox.

/Caption Omitted/

MOTION TO DISMISS

Now come the Defendants, Harold Richards, Sheriff of De 

Kalb County, Alabama, and W. J, Tindle, Solicitor of DeKalb 

County, Alabama, jointly and severally, by and through counsel,



37

and. move the Court to dismiss this cause, and as grounds of 

said Motion set down and assign the following, separately and 

severally:

1* The Complaint fails to state a cause of action upon 

which relief can he granted.

2. It affirmatively appears that the Plaintiffs are work­

ing in concert with other individuals and groups who are not 

joined as parties in this cause»

3. It affirmatively appears that this is a suit against 

the State of Alabama by citizens of another state in violation 

of Amendment 11 to the Constitution of the United States.

4. Phis Court lacks jurisdiction over the subject matter 

of this cause.

5. This Court should refuse to take jurisdiction over 

the subject matter of this cause.

6. Elis Court lacks jurisdiction of the persons of the 

Defendants, Harold Richards, and W. J. Tindle.

7 . Elis Court should refuse to exercise jurisdiction over 

the persons of the Defendants, Harold Richards and ¥. J 3 Tindle.

8. Eiis Court lacks "equity" jurisdiction of the subject 

matter of this cause.

9. Eiis Court lacks "equity" jurisdiction over the per­

sons of the Defendants, Harold Richards and W. J. Tindle.

10. It affirmatively appears that this is a suit against 

the State of Alabama without its consent.



38

11* It affirmatively appears that the Plaintiffs seek a 

temporary injunction and the complaint is not verified and no 

affidavit nas been filed in connection with the Motion for a 

Preliminary Injunction.

12. It affirmatively appears that Plaintiffs have "un­

clean Hands."

13. This Court cannot presume the Defendants will not do 
their duty.

l4o There is an adequate remedy at law.

15- The State of Alabama is an indispensable party to 
this cause.

l6. This Court snould not issue an injunction against 

the Defendants on the ground that the United States must guar­

antee to each State a Republican form of government under 

Article k, Section it- of the Constitution of the United States.

This 29th day of Jfoy, A.D„, 1963.

BECK AND BECK

Sy /s/______________ _____________
ATTORNEYS FOR DEFENDANTS, 
HAROLD RICHARDS And 
W. J. TINDLE,



/Caption Omitted/

MOTION TO DISMISS

Defendant Richmond M. Flowers, as Attorney General of 

the State of Alabama, moves to dismiss the amended complaint 

on the following separate and several grounds:

1. The amended complaint fails to state a claim upon 

which relief can be granted.

2. The same is an attempt to interfere with the judg­

ment and discretion of the Attorney General of the State of 

Alabama in the discharge of his duties as such.

3- Hie same is an attempt to interfere with the judg­

ment and discretion of tills defendant in his official capacity 

as to what suits should be properly brought for and on behalf 

of the State of Alabama.

k. For that adequate relief is available, if any of 

plaintiffs' constitutional rights have been violated, in the 

Circuit Court of DeKalb County, Alabama.

5- For that the amended complaint seeks to enjoin the 

prosecution of state court criminal cases.

6. For that DeKalb County, Alabama, is not within this 

Court's judicial district.

/s/ Gordon Madison 
GORDON MADISON 
As Assistant Attorney 
General
State of Alabama 

Attorney for said defendant



40

/Caption Omitted/ 

MOTION TO DISMISS

Defendant W. C, Holman, as Warden of Kilby Prison, 

Montgomery, Alabama, moves to dismiss the amended complaint on 

the following separate and several grounds:

1. The amended complaint does not state a claim upon 

which relief can be granted.

2. For aught that appears, this defendant is acting 

under the orders of duly constituted State authority which 

defendant is duty bound to obey.

/s/ Richmond M. Flowers 
RICHMOND Mo FLOVHRS 
As Attorney General 
State of Alabama

/s/ Gordon Midison 
GORDON MADISON 
As Assistant Attorney 
General
State of Alabama

Attorneys for said defendant



hi

/Caption Omitted/"

O R D E R

On fey 3, 1963, the plaintiffs filed their complaint in 

this Court against the Director of Public Safety for the State 

of Alabama; said complaint was filed pursuant to the provis­

ions of 28 U.S»CtA, § 13^3(3), h2 U»SeC*A. I 1983, and Article 

I;  ̂8, Clause 3, Constitution of the United States. The al­

leged purpose of the action was to redress deprivation of 

rights secured to plaintiffs under the Due Process and Equal 

Protection Clauses of the Fourteenth Amendment to the Consti­

tution of the United States. Hie complaint alleged that plain­

tiffs were threatened with the deprivation of these rights in 

that the defendant Lingo and those acting under his direction 

and control, under color of law, intended to interfere by arrest, 

prosecution and imprisonment, with plaintiffs' constitutionally 

protected right to walk peacefully through the State of Alabama.

A study of the complaint reflects that the plaintiffs had 

planned a "freedom walk" through the State of Alabama as a mem­

orial to one William Moore, who was shot and killed recently on 

a similar walk. On fey 18, 1963, the plaintiffs filed an amend­

ed and supplemental complaint, adding additional defendants 

and making additional averments. The amended and supplemental 

complaint reflects that on Friday, fey 3, 1963 (at or about 

the time the original complaint was filed in this Court), the 

plaintiffs, while walking two abreast at approximately 15 feet



k2

apart, along U* S. Highway 11 in DeKalb County, Alabama, and 

while carrying signs protesting racial segregation, were ar­

rested by the defendant Lingo and those acting under his dir­

ection and control; that plaintiffs were immediately thereafter 

incarcerated in the DeKalb County Jail at Fort Payne, Alabama, 

and charged with conduct calculated to provoke a breach of the 

peace under § 119(l), Title lk, of the Alabama Code. The 

amended and supplemental complaint further reflects that, while 

plaintiffs were incarcerated on this breach of peace charge, 

at the instigation of the Attorney General for the State of 

Alabama and other attorneys, herein made defendants, acting 

for the Governor for the State of Alabama, the Circuit Court 

of DeKalb County, Alabama, without prior notice to plaintiffs 

and without an opportunity for them to be heard, issued a tem­

porary injunction wherein said plaintiffs were, insofar as De­

Kalb County is concerned, enjoined from participating in the 

"freedom walk” demonstration. The plaintiffs, in their amended 

and supplemental complaint, ask this Court to issue an injunc­

tion against the defendants, forbidding them from continuing to 

act under color of law of the State of Alabama in such a manner 

as to interfere with their right to walk peacefully through the 

State of Alabama and enjoining them from continuing to imprison 

and prosecute plaintiffs for their having exercised their con­

stitutional right to walk peacefully through the State of Ala­

bama and, generally, enjoining the defendants and those acting



43

in concert with them from prosecuting plaintiffs "and others sim­

ilarly situated" for violations of the criminal laws of the 

State of Alabama on account of plaintiffs' exercising their con­

stitutional rights.

Each of the defendants to the complaint as amended and 

supplemented, by formal motion, seeks to have this Court 

enter an order dismissing the action. In support of these 

motions to dismiss, the defendants assign grounds such as this 

Court lacks jurisdiction over the subject matter; this Court 

lacks jurisdiction over the persons of the defendants; the 

State of Alabama is an indispensable party to the action; an 

injunction, if issued, would violate the proposition that each 

state is guaranteed a republican form of government under 

Article IV, I 4, of the Constitution of the United States; and 

this Court should refuse to exercise its "equity jurisdiction" 

in this matter. All the grounds raised by the defendants are 

completely without merit, with the exception of that one asking 

this Court not to exercise its jurisdiction, in this particular 

case. This Court has concluded, for the reasons hereinafter set 

out, that the motions to dismiss should be granted. The other 

motions filed herein by the defendants will become moot on the 

dismissal of this action.

As this Court has held many times, § 1343, Title 28, United 

States Code, and I 1981, Title 42, United States Code, vest this 

Court with jurisdiction in cases such as this one. In this con-



44

nection, the Supreme Court of the United States in Edwards v.

California (l94l), 314 U„S3 160, stated:

"Hie right to move freely from State to State is 
an incident of national citizenship protected by the 
privileges and immunities clause of the Fourteenth 
Amendment against state interference. Mr. Justice 
Moody in Twining v. New Jersey, 211 U. S„ 78, 97, 
stated, 'Privileges and immunities of citizens of 
the United States . , . are only such as arise out 
of the nature and essential character of the National 
Government, or are specifically granted or secured to 
all citizens or persons by the Constitution of the 
United States.* And he went on to state that one of 
those rights of national citizenship was 'the right to 
pass freely from State~¥o State. 1 Id,, p. 97. Now it 
is apparent that this right is not specifically granted 
by the Constitution. Yet before the Fourteenth Amend­
ment it was recognized as a light fundamental to the 
national character of our Federal government. It was 
so decided in 1867 by Crandall v. Nevada, 6 Wall. 35.
In that case this Court struck down a Nevada tax 'upon 
every person leaving the State' by common carrier,
Mr. Justice Miller writing for the Court held that 
the right to move freely throughout the nation was a 
right of national citizenship. That the right was 
implied did not make it any the less 'guaranteed' by 
the Constitution, Id., p. 47* To be sure, he empha­
sized that the Nevada statute would obstruct the right 
of a citizen to travel to the seat of his national 
government or its offices throughout the country. And 
see United States v. Wheeler, 254 U. S, 281, 299. But 
there is not a shred of evidence in the record of the 
Crandall case that the persons there involved were 
en route on any such mission any more than it appears 
in this case that Duncan entered California to inter­
view some federal agency. Hie point which Mr, Justice 
Miller made was merely in illustration of the damage 
and havoc which would ensue if the States had the 
power to prevent the free movement of citizens from 
one State to another. This is emphasized by his 
quotation from Chief Justice Taney’s dissenting 
opinion in the Passenger Cases, 7 How. 283, 492:
’We are all citizens of the United States; and, 
as members of the same community, must have the 
right to pass and repass through every part of it 
without interruption, as freely as in our own 
States.' . . . .



45

"So, when the Fourteenth Amendment was 
adopted in 1868> it had been squarely and authori­
tatively settled that the right to move freely 
from State to State was a right of national 
citizenshipa As such it was protected by the 
privileges and immunities clause of the Fourteenth 
Amendment against state interference. Slaughter 
House Cases, lb Wall. 36, 74, 79- . • (Inphasis 
by the Court .)

The exercise of this jurisdiction where it is requested 

for the purpose of restraining criminal prosecutions by the 

states is another matter. One of the leading cases on this 

particular point is Douglas v» Jeannette (.1943), 319 U,S, 157. 

In dealing with the particular question now presented to this 

Court, the Supreme Court therein stated:

"The power reserved to the states under the 
Constitution to provide for the determination of 
controversies in their courts may be restricted by 
federal district courts only in obedience to Con­
gressional legislation in conformity to the judiciary 
Article of uhe Const i-cut ion. Congress, by its legis­
lation, has adopted the policy, with certain well 
defined statutory exceptions, of leaving generally 
to the state courts the trial of criminal cases 
arising under state laws, subject to review by this 
Court of any federal questions involved. Hence, 
courts of equity in the exercise of their discretion­
ary powers should conform to this policy by refusing 
to interfere with or embarrass threatened proceedings 
in state courts save in those exceptional cases which 
call for the interposition of a court of equity to 
prevent irreparable injury which is clear and imminent; 
and equitable remedies infringing this independence 
of the states— though they might otherwise be given—  
should be withheld if sought on slight or inconse­
quential grounds, gi Giovanni v. CamdenIns. Assn., 
supra, 73; Matthews v. Rodgers, 284 U. S, 521,
525-26; cfc. United States ex rel. Kennedy v. Tyler,
269 U. S. 13; Massachusetts State Grange v. Benton,
272 u. s. 525. ‘  ~



"It is a familiar rule that courts of equity do 
not ordinarily restrain criminal prosecutions. No 
person is immune from prosecution in good faith for 
his alleged criminal acts. Its imminence, even though 
alleged to be in violation of constitutional guaranties, 
is not a ground for equity relief since the lawfulness 
or constitutionality of the statute or ordinance on 
which the prosecution is based may be determined as 
readily in the criminal case as in a suit for an 
injunction., Davi.s & Farnuro Mfg . Co » v. Los Angeles,
189 Uo So 207;“Fenner v7 Po;y];:in, 271 Uo S.“240. ‘where 
the threatened prosecution is by state officers for 
alleged violations of a state law, the state courts 
are the final arbiters of its meaning and applica­
tion, subject only to review by this Court on 
federal grounds appropriately asserted. Hence the 
arrest by the federal courts of the processes of 
the criminal law within the states, and the deter­
mination of questions of criminal liability under 
state law by a federal court of equity, are to be 
supported only on a showing of danger of irreparable 
injury 'both great and immediate 01 Spie3man_ Motor 
Co6 v. Dodge, 295 U 0 S„ 89, 95} and cases cited;
Beal Vc Missouri Pacific R. Corp., 312 U, S. b5,
£ 9,  and cases cited; Watson v« B u ck , 313 U . S r 3873 
Wj.113.ams v. Miller, 317 U.S, 599

The Supreme Court of the United States next dealt with this

matter again in Stefanelli v. Minard (l95l)> 3^2 U.S. 117-

There the Court, while admitting the state action violated

the Fourteenth Amendment, stated;

"For even if the power to grant the relief here 
sought may fairly and constitutionally be derived 
from the generality of language of the Civil Rights 
Act, to sustain the claim would disregard the power 
of courts of equity to exercise discretion when, in 
a matter of equity jurisdiction, the balance is against 
the wisdom of using their power. Here the considera­
tions governing that discretion touch perhaps the most 
sensitive source of friction between States and Nation, 
namely, the active intrusion of the federal courts 
in the administration of the criminal law for the 
prosecution of crimes solely within the power of the 
States.



47

" . . .  The maxim that equity will not enjoin a 
criminal prosecution summarizes centuries of weighty 
experience in Anglo-American law . . . , The special 
delicacy of the adjustment to he preserved between 
federal equitable power and State administration of 
its own law, has been an historic concern of con­
gressional enactment, see, e.g,, 28 U.S.C. IS 1341,1342, 
2283, 2284 (5). This concern lias been reflected in 
decisions of this Court, not governed by explicit 
congressional requirement, bearing on a State's 
enforcement of Its criminal law. E,g«, Watson v,
Buck; 313 UcS. 337; Beal v. Missouri Pacific R . Co.,
312 U.S. 45; Spielman Motor Co. v. Bodge, 295 U.S.
89; Fenner v. Boykin, 271 U.S. 240, It has received 
striking confirmation even where an important counter­
vailing federal interest was Involved. Maryland v.
Soper, (No. l), 270 U.S, 9; dryland v. Soper (No. 2), 
270 U,S» 36; tfe.ryle.nd v. Soper* (No. “3), 2fd*U»S. 44." 
(Footnotes omitted., J~

The latest treatment of this proposition by the Supreme Court 

of the United States was In Cleary v. Bolger (Jan, 1963), 371 

U.S. 392. In that case, Mr. Justice Harlan, speaking for the 

Court, stated:

"Courts of equity traditionally have refused, 
except in rare instances, to enjoin criminal prose­
cutions. This principle 'is impressively reinforced 
when not merely the relations between coordinate 
courts but between coordinate political authorities 
are in issue.' Stefanelli v. Mnard, 342 U.S. 117,
120. It has been manifested in numerous decisions 
of this Court involving a State's enforcement of its 
criminal law. E, g., Pugach v. Bollinger, 365 
U. S,> 458; Douglas v. City of Jeannette, ~319 
U, S. 157; Watson v. Back, 313 U.S. 387; Beal v.
Missouri Pac, R, Co., 312 U 0S, 45. The considera­
tions that have prompted denial of federal Injunctive 
relief affecting state prosecutions were epitomized 
in the Stefanelli case, in which this Court refused 
to sanction an injunction against state officials 
to prevent them from using in a state criminal trial 
evidence seized by state police in alleged violation 
of the Fourteenth Amendment:

11' /w7e would expose every State criminal 
prosecution to insupportable disruption.



J+8

Every question of procedural due process of 
law— with its far-flung and undefined range—  
would invite a flanking movement against the 
system of State courts by resort to the federal 
forum, with review if need be to this Court, 
to determine the issue. Asserted unconsti­
tutionality in the impaneling and selection 
of the grand and petit juries, in the failure 
to appoint counsel, in the admission of a 
confession, in the creation of an unfair 
trial atmosphere, in the misconduct of the 
trial court— all would provide ready oppor­
tunities, which conscientious counsel might 
be bound to employ, to subvert the orderly, 
effective prosecution of local crime in local 
courtsu To suggest these difficulties is to 
recognize their solution,’”

The action now being taken by this Court in refusing to 

enjoin the criminal prosecution of these plaintiffs by officers 

acting under color of law for the State of Alabama must not be 

construed as an approval of the action taken by these officers 

in arresting and prosecuting these plaintiffs under the guise 

of maintaining and preserving the peace and tranquility of the 

State of Alabama. This Court is not unmindful of the consistent 

action of the Supreme Court of the United States in reversing 

such convictions based upon breach of the peace statutes; for 

instance, Edwards, et al. v. South Carolina (Feb. 1963), 372

U. S. 229; Wright, et al. v. State of Georgia (May 1963)̂ _____

U, S._____; Peterson, et al, v. City of Greenville, South

Carolina (May 1963),_____U.S._____ ; Lombard, et al. v. State

of Louisiana (May 1963),_____U.S._____. It is significant to

note, however, that in each of these cases the matter was pre­

sented to the Supreme Court through the state court system and



9̂

not in a collateral proceeding in a United States district 

court such as plaintiffs attempt here in violation of the prin­

ciples as set out in Douglas v, Jeannette, Stefanelli v.

ana SiSSJX v. Bolger; furthermore, the action herein 

taken "by this Court should not he considered as an approval of 

the action on the part of certain of the attorney-defendants 

in their "running" to the Circuit Court of DeKalb County, Ala­

bama, after this natter had been filed and was pending in this 

Court and before this Court was given a reasonable opportunity
y  ~ 2/

to act. Such a maneuver adds nothing to the legal position 

of the defendants and adds nothing to the stature of the attor­

neys participating therein as officers of this Court.

For the foregoing reasons and for good cause, it is, there­

fore, the ORDER, JUDGMENT and DECREE of this Court that the mo­

tion of the defendant Lingo filed herein on May 17, 1963, the 

motion of the defendants Kohn and Maddox filed herein on May 29, 

1963> motion of the defendants Tindle and Richards filed 

herein on May 31, 1963, the motion of the defendant Flowers 

filed herein on May 31* 19^3j and the motion of the defendant 

Holman filed herein on May 31, 19&3> be and each is hereby 

granted. It is further ORDERED that this cause be and the same 

is hereby dismissed as to each of the defendants named in 

plaintiffs' amended and supplemental complaint.



50

It is further ORDERED that the costs incurred herein be 

and they are hereby taxed against the plaintiffs, for which 

execution may issue.

Done, this the 19th day of June, 1963.

_______ Frank_M. Johnsont_Jr,
UNITED STATES DISTRICT"JUDGE

1/ This action was filed in this Court on May 3, 1963; the 
defendant Lingo was served on fey 3, 1963.; on Fay 7, 1963, the 
action seeking an injunction was filed in the Circuit Court 
of Dekalb County, Alabama, and a State court injunction was 
granted without notice on the same date.

2/ This Court has the authority to proceed under 28 UoS,C„ 
b 2283 even in the face of such State court action "where 
necessary in aid of its jurisdiction."

/Caption Omitted/

NOTICE OF APPEAL

The plaintiffs, John Robert Zellner, William Hansen, Jesse 

Harris, Winston Lockett, Richard Haley, Eric Weinberger, Robert 

Gore, Zev Aelony, James R. Foreman, Landy McNair, by his mother 

and next friend, Nina McNair, Carver Gene Neblett, by his father 

and next friend, Pleasant Neblett, Samuel Curtis Shirah, Jr., 

by his father and next friend, Samuel Shirah, Sr., hereby appeal



51

to the United States Court of Appeals for the Fifth Circuit 

from the order dismissing this action as to each of the de­

fendants, on June 19* 19^3*

July 9, 1963

II

DESIGNATION OF CONTENTS OF RECORD OR APPEAL

Appellants, pursuant to Rule 75 of the Federal Rules of 

Civil Procedure, designate the record in the subject case to be 

contained in the record on appeal, vhich record appellants are 

preparing in accordance with Rule 23(10) of the Fifth Circuit 

Rules, to include:

Is Complaint.

2. Motion for Preliminary Injunction.

3« Motion for leave to File Amended and Supplemental 

Complaint.

4. Order Granting Leave to File Amended and Supplemental 

Complaint.

5. Amended and Supplemental Complaint with Exhibits.

6. Amended Motion for Preliminary Injunction.

7. Motion to Dismiss of A1 Lingo, May 17, 19^3*

8 . Motion to Dismiss of John P. Kohn and Hugh Maddox,

May 29, 1963*

9. Motion to Dismiss of Harold Richards and ¥. J. Tindle,

May 31, 1963



52

10, Motion to Dismiss of Richmond Flowers, May 31,? 19^3 *

11, Motion to Dismiss of W. C, Holman, May 31, 1963.

12, Order of June 19, 19^3*

13, Notice of Appeal,

Ik. This Designation.