Turner v. Barron Brief for Plaintiffs-Appellants

    A7
IN THE '■>J>//<v r 2-cJ -2 i'

c t . . f? G-UNITED STATES COURT OF APPEALS I

f  v* ^  "fx̂
FOR THE FIFTH CIRCUIT

NO. 30433

^  I \  ■

RICHARD TURNER, et al..

Plaintiffs-Appellants,

vs,

LEE BARRON, 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

JOHN H. RUFFIN, JR.
930 Gwinnett St.
Augusta, Georgia 30903

Attorneys for Plaintiffs-Appellants



I N D E X

Page

ISSUES PRESENTED ........................................

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

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

The Arrests of February 6, 1970 ...............

Mistreatment of Demonstrators ................ .

Intimidation of Black Citizens By Boycotters

IV

6

7

9

9

ARGUMENT

THE COURT BELOW ERRED IN HOLDING THAT 
IT WAS BARRED FROM ISSUING A DECLARATORY 
JUDGMENT REGARDING THE CONSTITUTIONALITY 
OF THE CHALLENGED ORDINANCES AND COURT 
ORDER ........................................... 11

II. THE SANDERSVILLE CURFEW ORDINANCES AND 
THE COURT ORDER LIMITING DEMONSTRATIONS 
ARE OVERBROAD REGULATIONS OF FIRST 
AMENDMENT RIGHTS .......................... .

A.

B.

The Loitering and Curfew Ordinances 
in Flatly Prohibiting All Demonstra­
tions Regardless of Circumstances, 
Unduly Restrict the Exercise of First 
Amendment Rights .........................

The Court Order Banning all Marches 
In The Vicinity Of the Courthouse Is 
Similarly Overbroad ....................

15

15

21



Page

III. THE COURT BELOW ERRED IN NOT ENJOINING
THE USE OF VIOLENCE BY LAW OFFICERS 
AGAINST ARRESTED DEMONSTRATORS ..........

IV. THE COURT BELOW ERRED IN GRANTING 
INJUNCTIVE RELIEF AGAINST PLAINTIFFS ...

CONCLUSION ................................................

CERTIFICATE OF SERVICE ................................

Table of Cases

Abernathy v. Conroy, 429 F.2d 1170 (4th Cir. 1970)

Cameron v. Johnson, 390 U.S. 611 (1968) ...........

Cottonreader v. Johnson, 252 F.Supp. 492
(M.D. Ala. 1966) ......................................

Cox V. New Hampshire 312 U.S. 569 (1941) ..........

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

Guyot V. Pierce, 372 F.2d 658 (5th Cir. 1967) ....

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

Kelly V. Page, 335 F.2d 114 (5th Cir. 1964) ......

22

24

26

28

20

13

20

17, 19 

12, 18, 21 

12 

23

23, 25, 27

11



page

LeFlore v. Robinson ______ ^F.2d ______ (5th Cir.
NOV.12, 1970) ...........................................

Robinson v. Coopwood, 292 F.Supp. 926 (N.D. Miss. 
1968) .....................................................

Shuttlesv/orth v. City of Birmingham, 394 U.S.
147 (1969) ..............................................

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

Williams v. Wallace, 240 F.Supp. 100 (M.D. Ala.
1965) .....................................................

Young v. Davis, 9 Race Rel. L. Rev. 590
(M.D. Fla. June 9, 1964) .............................

Zwickler v. Koota, 387 U.S. 241 (1967) ..............

Statutes

28 U.S.C. § 2283 .........................................

42 U.S.C. § 1983 .........................................

11, 12,19 
21

20

17

12

24

20

12

5, 12, 13, 
14.

12

111



ISSUES PRESENTED

I. Whether the court below erred in holding that it could

not grant declaratory relief regarding the constitutionality 

of city loitering and curfew ordinances and a state court 

order banning demonstrations in certain public places on 

the ground they violated the First Amendment to the Con­

stitution of the United States?

II. Whether the above mentioned ordinances and court order 

are unconstitutional on their face as being overbroad 

regulations of activities protected by the First Amendment?

III. Whether the court below erred in failing to make findings 

of fact and failing to grant injunctive relief when pre­

sented with evidence showing mistreatment by law enforce­

ment officers of arrested demonstrators?

IV. Whether the court below erred in issuing an injunction 

against the plaintiffs-appellants that unduly restricts 

their exercise of rights protected under the First 

Amendment?

IV



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 30433

RICHARD TURNER, et al,,

Plaintiffs-Appellants, 

vs.

LEE BARRON, 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 Court 

for the Middle District of Georgia seeking to challenge the con­

stitutionality on their face and as applied of the loitering
V

and curfew ordinances of Sandersville, Georgia and a court 

order restricting marches and demonstrations in that city.

'̂ / The full text of the Ordinances and court orders are 
as follows:



A declaratory judgment was sought that the ordinances and 

court order on their face 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 to the constitution (A. 16-18) (References are to

(Continued)
 ̂ Section 277 of the City Code:

"It shall be unlawful for any person or persons to 
lounge and loiter after 9 o'clock p.m. on any 
street, sidewalk, alley or square of said city, 
provided this section shall not apply to a person 
returning home from his legitimate business or 
occupation or other like cases. Any person 
violating this section is guilty of an offense 
against the city, and upon conviction, shall be 
punished as provided for in the code of said c i ty ."

Order dated February 11, 1970:
"BE IT ENACTED BY THE COUNCIL OF THE CITY OF 
SANDERSVILLE, that a curfew is hereby established 
in the City of Sandersville from the hour of 
11:00 p.m. to 5:00 a.m. during which time it 
shall be unlawful for any person or persons to 
lounge, loiter, congregate, assemble, walk, march, 
parade, or be present on any street, sidewalk, 
alley, square, or public property in the City of 
Sandersville, provided this ordinance shall not 
apply to any person returning home from his 
legitimate place of business, going to his legi­
timate place of business, or in the transaction 
of his legitimate business employment.

"This ordinance is enacted in confirmation of 
verbal proclamation of the Mayor of the City of 
Sandersville establishing and implementing this 
curfew, and does not invalidate or in any manner 
alter Section 277 of the City Code, which remains 
of force.

"This ordinance and the proclamation above cited 
are enacted and proclaimed due to the state of civil 
unrest which the Mayor and Council of the City of 
Sandersville deem to exist at the present time, which

- 2 -



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 ordinances and court order, and specifically 

against the prosecution of persons arrested on certain speci­

fied dates in the past. An injunction was also sought against

any form of harassment or intimidation of persons attempting
**/

to exercise their First Amendment rights (A. 17).

jl/ (Continued)
conditions cause the Mayor and Council to judge that 
it is in the public interest and for the public safety 
necessary that such curfew be enforced."

Order dated February 5, 1970, of City Court:
"Whereas, the City Court of Washington County is now 
in session at the Court House on the Public Square 
in Sandersville and the Traverse Jury of the City 
Court are deliberating cases at said Court House.

"Therefore, it is considered, ordered, and ad­
judged that no marches or demonstrations shall be 
held on the Court House Square or in the streets 
and subdivision surrounding the Court House Square 
on this date or thereafter during the time that 
said court is in session. This shall specifi­
cally include that portion of North Harris Street 
that forms a portion of the Court House Square.

"The Sheriff, his Deputies, and all law enforce­
ment officers are directed to route all parties 
that may be involved in a march or demonstration 
to another part of the city in compliance with 
this order."

**/ An injunction against prosecuting certain persons for tres­
passing on the driveway of a bank during the course of a 
demonstration at the adjoining Board of Education building 
was also sought. In light of the findings of fact by the 
court below, however, this issue is not raised in this 
appeal.

-3-



The action was commenced on March 9, 1970, by the 

plaintiffs 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 arrested and threatened with prosecutions pursuant to the 

ordinances and order (A. 2-3). They wished to continue their 

constitutionally protected activities but the pendency of pro­

secutions, the threat of future arrests and prosecutions, and 

the use of violenceby police officials had the effect of dis­

couraging them in so doing so that the exercise of those rights 

had been deterred and chilled (A. 14-15).

The defendants-appellees are officials of the city 

of Sandersville and of Washington County, Georgia, including 

the chief of police, the mayor, the sheriff, city and county 

attorneys, members of the city council, and judge of the city 

court. All of these officials are responsible for the pro­

mulgation and enforcement of the challenged ordinances and 

court order.

On March 11, April 7, 17, and 24, 1970, the district 

court held an evidentiary hearing. During the proceedings, a 

cross-complaint was filed by the defendants seeking injunctive 

relief against the plaintiffs for alleged acts of violence and 

intimidation (A. 53-55). Testimony was given (which is sum­

marized below) concerning events in Sandersville and Washington 

County in late 1969 and early 1970. Briefly, it dealt with

-4-



demonstrations held by black citizens to protest certain 

policies and actions by the city and the county board of 

education, a boycott of white-owned business, various inci­

dents of violence in the county, arrests made during demon­

strations, and acts of violence against arrested demonstrators.

On July 9, 1970, the district court handed down its 

decision (A. 829-845). 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

injunction 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 of the plaintiffs' prayers for relief were denied 

without the court reaching the merits of the constitutional 

issues raised (A. 840-845).

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 con­

cerning or indeed discuss, the evidence dealing with police 

mistreatment of demonstrators. On the other hand, the court 

did make findings regarding defendants' allegations of misconduct 

on the part of the plaintiffs (A. 835-837). As a result of 

those findings the court enjoined the plaintiffs from certain

-5-



conduct as they carried out their boycott (A. 847). The 

court's order was entered on July 14, 1970 (A. 846-847) and 

a timely notice of appeal was filed (A. 848).

STATEMENT OF FACTS

The demonstrations giving rise to this case came out 

of discontent among black citizens of Sandersville, Georgia, 

with policies of the board of education, the local government, 

and local businesses. At various times parades and marches 

took place mainly at the offices of the board of education.

In addition, a boycott of local business establishments was 

organized and pickets and demonstrators were sent out to attempt 

to persuade other black citizens not to shop at those stores.

During the period involved, from October 1969, through 

April, 1970, when the hearings below were held, marching and 

picketing occurred regularly. On January 30, 1970, a series

of arrests of demonstrators was made under an ordinance pro­

hibiting parades. When this resulted in mass protests, however, 

the arrested demonstrators were released, the ordinance was res­

cinded, and no prosecutions were held under it (A. 832).

Subsequently, a number of demonstrations were held 

which b y  and large resulted in no arrests. During this same 

period, however, various incidents not directly connected to 

specific demonstrations occurred, including fires, shooting

-6-



into houses, threatening telephone calls, etc. On December 

27, 1969, the mayor issued a proclamation declaring a curfew 

from 11.00 p.m. to 5.00 a.m. This action was ratified by a 

meeting of public officials on December 31, 1969, and on 

February 11, 1970, the curfew was formalized into an ordinance.

Before that date, however, there had been in effect 

an earlier ordinance prohibiting loitering after 9.00 p.m. and 

which was used to arrest a group of demonstrators in an incident 

discussed in more detail below. In the meantime, the judge of 

the city court issued an order generally and flatly banning all 

marches and demonstrations in the vicinity of the courthouse 

square (the two ordinances and the court order are set out in 

full in the footnote, supra). It is against this general 

background that the incidents that gave rise to this litigation 

occurred.

The Arrests of February 6, 1970

In the early afternoon of February 6 about forty—three 

young people began to walk to the office of the board of educa­

tion in Sandersville in order to talk to the superintendent of 

schools about the closing of a school (A. 109-110). The office 

is located on Harris Street, which adjoins the courthouse square. 

As they approached the square on Harris Street, but before they 

reached it, they were stopped b y  local police and the state 

patrol (A.111). They were informed that they could not walk 

on the street adjacent to the square because of the court order

-7-



mentioned above (A.112-113). When the marchers refused to 

turn back or to go through an alley they were arrested, in­

carcerated for from four to six days, and ultimately convicted 

of contempt of court (A. 116; 127). The group itself made no 

noise, and informed the police officers they did not intend to, 

but were merely walking to the board of education (A. 126).

Later that afternoon, another group of marchers went 

to the board of education and marched around the building.

The board of education building had next to it a driveway to 

the parking lot of a bank. As the group circled the building 

they walked on the driveway. Subsequently, the demonstrators 

were arrested for trespassing on bank property, allegedly 

because they had been asked by a bank official to remain off 

the driveway but had refused (A. 129-131; 142-143; 152-153; 

369-374).

Later that evening, a group of black citizens, includ-. 

ing parents of children arrested earlier in the day, went down 

to the jail in Sandersville. When it appeared that the 

children were not to be released, they resolved to spend the 

night outside the jail in order to reassure the children and 

to protest the arrests (A. 196-199). One mother testified 

that her son called out to her from his cell but was apparently 

struck b y  someone who appeared to be an officer. (A. 200). The 

group went back to their meeting place, resolved to get blankets, 

and return to the jail for their vigil (A. 203-204).

- 8-



They returned at sornetime between 10.30 p.m and 

11.00 p.m. An announcement was made that the group was 

violating the curfew and when the people remained they were 

arrested, put into busses, and taken to jail (A. 204-205; 

212—214). One woman had gone down independently of the group 

because someone at the s h e r i f f s  office suggested she come to 

speak to the sheriff concerning the arrest of her children. 

Nevertheless, she was also arrested although, according to 

testimony, white persons who were standing watching were not 

(A. 185-189; 226-229). She was charged with and convicted of 

a violation of section 277 of the city code, the anti-loitering 

after 9.00 p.m. provision (A. 188-189).

M istreatment of Demonstrators

A number of witnesses testified to mistreatment of

demonstrators both during and after the making of arrests.

Tear gas or mace was sprayed into cells (A. 76; 90-91; 149;

188; 206-207). Prisoners inside of the jail were assaulted 

(A. 200; 209-210; 212-213), as were demonstrators as they were 

arrested (A. 186-187; 214; 223-224). Police evidently des­

troyed pictures one of the persons arrested at the bank had 

taken of the demonstration and arrests (A.148).

Intimidation of Black citizens By Boycotters

In support of their cross complaint defendants— 

appellees introduced considerable testimony dealing to their 

allegations regarding intimidation of black citizens of

-9-



Washington County to gain adherence to the boycott of white 

businesses (see, generally, A. 537-736). Plaintiffs, in turn, 

offered testimony denying such acts and denying any intent to 

intimidate people into co-operating with the boycott (see, e.g. 

A. 96-97). Since the district court made findings of fact 

regarding these matters (in contrast with its failure to do so 

regarding allegations of mistreatment by police officers) we 

will not describe the testimony here, but refer the Court to 

the district court's opinion (A.835-837).

- 10 -



ARGUMENT

I.

THE COURT BELOW ERRED IN HOLDING THAT 
IT WAS BARRED FROM ISSUING A DECLARATORY 
JUDGMENT REGARDING THE CONSTITUTIONALITY 
OF THE CHALLENGED ORDINANCES AND COURT 

ORDER

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 grievance, and to free speech are not abridged. 

Plaintiffs-Appellants urge that in a number of respects this 

case is governed by the recent decision of this Court in

LeFlore v. Robinson,__________ F.2d __________(5th C i r . , Nov. 12,

1970). Specifically, that decision clarified and reiterated 

the power and duty of a federal court to issue a declaratory 

judgment when city ordinances are challenged as violating the 

First and Fourteenth Amendments to the Constitution because of 

overbreadth, even when prosecutions under those ordinances are 

pending in state courts.

Here, related loitering and curfew ordinances, used 

to arrest persons engaged in peaceful demonstrations, were 

challenged as being overbroad. In addition, challenge was made 

to a state court issuing ex parte and pursuant to no pending 

action, an order having the essential effect of an ordinance 

banning all demonstrations regardless of circumstances on the

- 11 -



streets along the courthouse square.

Although the decision of the court below began with 

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 as to the constitutionality 

of the challenged ordinances and injunctive 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 con­

stitutional invalidity under the First Amendment and to issue 

a declaratory judgment 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.l3 (5th 

Cir. 1958); 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. Ko ot a, 389 U.S. 241 (1967) and

- 12 -



— eron v. 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 an injunction should or could be 

issued. indeed, in Cam e r o n , the Court itself first decided 

the declaratory judgment question and then declined to rule 

on whether 28 U.S.C. § 2283 was applicable because of its 

decision on the first issue. Surely if 2283 barred any deci­

sion on the request for declaratory relief, as the court below 

held in the present case, the Supreme Court w u l d  have so ruled 

and would not have decided the question of whether the statute 

involved in Cameron was constitutional.

The same result should apply to the question of 

declaratory judgment as to the constitutionality of the court 

order banning all marches and demonstrations on the courthouse 

square or surrounding streets in Sandersville. The crucial 

fact IS that the order has the operative effect of a city 

ordinance. it was not issued as part of a pending action, 

against parties thereto, with those parties attempting to have 

it overturned in federal court. it was issued not only ex p a r t e , 

ut outside of any judicial proceeding whatsoever. The sheriff 

vas instructed to enforce it in the same way he would an ordin­

ance, and he did so, making arrests pursuant to it.

Thus, £ ameron and LeFlore require reversal of the 

decision below. m  addition, however, there is an independent

-13-



reason wh y the court below erred in not reaching the merits of 

the challenge to the constitutionality of the ordinances and 

court order here involved. The Complaint and proof herein 

clearly established a continuing controversy over their validity. 

Not only had the plaintiffs and members of their class demon­

strated in the past and had been arrested, but they desired to 

continue their activities in the future (A. 14-15). However, 

the past and threatened future enforcement of the ordinances 

and court order had and would have the effect of discouraging 

their activities (A. 14-15). Protection was sought

against not only the pending prosecutions, but against future 

arrests for failures to comply with the challenged ordinances 

and order.

Thus, the plaintiffs clearly alleged, and proved, a 

continuting controversy with city officials that could only 

be resolved by a decision by the federal court as to whether 

the curfew ordinance and court order banning demonstrations 

were constitutional and had to be complied with. The resolu­

tion of this controversy would in no way involve or require 

the enjoining of any pending state prosecutions and hence 

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

case.

-14-



II.

THE SANDERSVILLE CURFEW ORDINANCES AND
THE COURT ORDER LIMITING DEMONSTRATIONS
ARE OVERBROAD REGULATIONS OF FIRST AMENDMENT

RIGHTS

Since, under LeFlore, the court below clearly erred

in not deciding the constitutionality of the Sandersville

loitering and curfew ordinances and the court order banning

marches in the vicinity of the courthouse, this Court could

simply remand the case for an initial determination by that

court of the issues. However, plaintiffs-appellants urge that
the

it would be appropriate for this Court to decide/constitutional 

issues at this time.

A. The Loitering and Curfew Ordinances, in Flatly 
Prohibiting All Demonstrations Regardless Of Circum­
stances, Unduly Restrict The Exercise of First Amendment

Rights

In their complaint, plaintiffs-appellants attacked laws 

as overbroadly interfering with the First Amendment rights of 

free assembly, free speech, and petition. Two separate ordin­

ances are involved; they are set out in full supra, pp. 

and will be summarized here. Section 277 of the Sandersville 

City Code states that it shall be unlawful for any persons to 

"lounge or loiter" after 9.00 p.m. on any street or other public 

place. Specifically excepted are persons "returning home from 

any legitimate business or occupation or other like cases."

-15-



A s  a result of the demonstrations and other occurrences out­

lined above in the statement of facts, on December 27, 1969, 

the Mayor declared a curfev? from 11.00 p.m. to 5.00 a.m.

This curfew was ratified at a meeting of the Mayor and Council

and other officials on December 31.

on February 11, 1970, the curfew was formalized by 

passage of a new ordinance. It provided that during the hours 

of 11.00 p.m. and 5.00 a.m. it would be unlawful for any persons 

to "lounge, loiter, congregate, assemble, walk, march, parade, 

or be present "in any public places". Again, an exception was 

made for persons returning home from work, going to work, or 

transacting business. The ordinance specifically states that 

it does not invalidate the existing loitering ordinance, sec­

tion 277.

It was under these enactments that persons were 

arrested on February 6, 1970, in the vicinity of the county

jail. A group of about 100 persons had gone there during 

the evening to register their protest against arrests of two
il/

groups of demonstrators earlier that same day. They had 

resolved to remain at the jail until those arrested were 

released; at least one person had gone there to find out the 

whereabouts of her children. Shortly after 11.00 p.m., a 

state patrolman advised the group of the time and of the curfew

*/ One group was arrested for violating the court order 
“  discussed infra. The second was arrested for tres­

passing on the driveway of a bank during a demonstra­
tion at the adjoining Board of Education building.

-16-



and told them to disperse and go home. When the group did not 

do so, its members were arrested and charged with violating 

section 277 of the city code, the 9.00 p.m. loitering ordinance. 

Appellants urge that the loitering and curfew ordin­

ances, on their face and as applied, are unconstitutionally over­

broad under a consistent line of authority. Recently, the 

Supreme Court of the United States reaffirmed cox v. New Hampshire 

312 U.S. 569 (1941), upholding state power to specify the time, 

place and manner" of a parade "in order to accommodate competing 

demands for public use of the streets." Shuttlesworth y. 

Birmingham, 394 U.S. 147, 155-56 (1969). The Court stated the 

constitutional test in the following terms (394 U.S. at 155):

rp'j-jg inquiry in every case must be that stated b y  
Chief Justice Hughes in Cox v. New Hampshire, 312 
U.S. 569 —  whether control of the use of the streets 
f o r a  parade or procession was, in fact, "exerted so 
as not to deny or unwarrantedly abridge the right of 
assembly and the opportunities for the communication 
of thought and the discussion of public questions 
immemorially associated with resort to public places.
Id. at 574

Neither of the Sandersville ordinances can be sustained as an 

attempt "to accommodate competing demands for public use of the 

streets" (Shuttlesworth, supra, 394 U.S. at 155-56). They 

utterly fail to accommodate the pressing need for black citizens 

to participate in marches in the evening as a means of accom­

plishing social and economic reform, or indeed for them even to 

be able to go to and from evening meetings to discuss such 

issues (see A. 13). People leaving work about 5.00 p.m must

-17-



usually go home, eat supper and attend to their children, 

before they can go to such meetings and participate in a 

demonstration.

Section 277 clearly does not attempt to accommodate 

these needs. Indeed, it does not attempt to accommodate the 

need of any group to have meetings or demonstrations after 

9.00 p.m. It is not based upon a finding of any peculiar 

traffic hazard after that time. Instead, it is a flat pro­

hibition, leaving appellants and this Court in the dark as to 

its rationale.

Both Section 277 and the February 11, 1970, ordin­

ance, in fact, place persons going to and from night meetings' 

and taking part in night demonstrations in a kind of "second- 

class citizen" status. They both recognize and allow for 

people to be on the streets at all hours of the night for 

certain purposes, namely, going to and from work or carrying 

out business. Presumably, this could include substantial 

numbers of persons, e .g ., workers leaving a factory after an 

evening shift. Section 277 by its enforcement and the curfew 

ordinance by its explicit language, however, single out persons 

engaged in otherwise peaceful, non-violent, and legal First 

Amendment activities and makes them criminals. Surely, the 

preferred freedoms protected b y  the Constitution can not be 

relegated to such a position.

Perhaps the case in this circuit closest in point is 

Davis V. Francois, 395 F.2d 730 (5th Cir. 1968). There, this

-18-



Court invalidated a city ordinance which limited the number of 

pickets at any facility within the city. (See also, LeFlore v. 

Robinson, si. op. p. 15). The city attempted to bring the 

ordinance within the purview of Cox v. New Hampshire, supra, 

by contending that it was a regulation of "manner" within the 

meaning of C o x 's sanction of regulations as to "time, place and 

manner." The Court rejected this contention, invalidating the 

ordinance "because it does not aim specifically at a serious 

encroachment on a state interest or evince any attempt to 

balance the individual's right to effective communication and 

the state's interest in peace and harmony" (395 F.2d at 735). 

The Court continued (395 F.2d at 736):

We emphasize again that our holding does not mean 
the city is powerless to regulate demonstrations. It 
must simply identify a substantial interest worthy of 
protection. Note, Regulation of Demonstrations, 80 
Harv. L. Rev. 1773 (1967). The decisions indicate 
that this process has been accomplished in at least 
two ways. First, the state b y  a narrowly drawn statute 
may regulate the time, place and manner of the demon­
strations. Unless the building is a sensitive facility 
that may be made totally off limits to public debate, 
the right to demonstrate on public property should only 
be regulated b y  statutes that consider all of the 
nuances of the time, place and manner. Second, it is 
clear that the state may enact an ordinance that carves 
out of the demonstration the evil it seeks to prohibit 
and thereby isolates conduct that does not have First 
Amendment protection

Some district courts in this Circuit, having considered 

"all of the nuances of the time, place and manner" of a 

particular situation have explicitly sanctioned night

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V  ’HI/
marches; while one has prohibited them.

The Fourth Circuit, however, has recently upheld an 

ordinance of Charleston, South Carolina banning peaceful demon­

strations after 8.00 p.m. Abernathy v. Conroy, 429 F.2d 1170 

(4th Cir. 1970). We urge first, that the Fourth Circuit s 

holding not be followed. The better position, and one con­

sistent with the approach of this Court in D a ^ ^  and LeFlo .̂ , 

is that flat prohibitions on First Amendment activities, re­

gardless of the circumstances prevailing in the particular 

instance are unconstitutional. Rather, legitimate interests 

of the city in preserving order can be served by more narrowly 

drawn regulations that address themselves to the specific pro­

blem of concern. For example, the city might prohibit noisy 

demonstrations in residential areas after a particular time, 

but could not flatly outlaw the kind of vigil outside of a 

public building that was involved here in the arrests of February 6.

Moreover, the ordinance in Abernathy dealt with parades 

as such. It did not, apparently, have the effect of making 

criminal the going to and from meetings held indoors. Ihis is 

precisely what section 277 of the Sandersville city code does.

*/ see Young v. D a v i s , 9 Race Rel.L.Rev. 590 (M.D Fla., June 
9 1964) in which the district court restrained city and
state officials from "prohibiting Andrew Young and other 
Negroes or persons associated with them from 
orderly demonstrations by marching in and about the City 
of St. Augustine, Florida and ^^s public streets, side- 
walks and parks, at any hour in the night time . ( ^ .  at 597). 
see also Pnbinson v. Coopwood, 292 F. Supp.9 2 6 (N.D.Miss.1968)

**/ See Cottonreader v. Johnson, 252 F .Supp.4 9 2 (M.D.Ala.1966).

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however, and as long as it stands the black citizens of the 

city can not help but be deterred from engaging in activities 

clearly protected b y  the First Amendment.

R. The Court nrder Banning All Marches in the  ̂
vicinity of the Courthouse is Similarly Overbro_^

Again, Davis v. Francois and LeFlore v.— Robinson 

stand squarely for the proposition that flat bans on peaceful 

marches or demonstrations fall afoul of the First Amendment, 

in the present case, a state court judge issued a directive 

that no marches, regardless of their character or the circum­

stances surrounding them, could be held on the courthouse 

square "or in the streets and subdivision" surrounding it

during the time the court was in session.

The incident on February 6, resulting in arrests for 

violating the order vividly demonstrates its overbreadth. The 

group was small, consisting of forty-three persons. Its mem­

bers were quiet; they did not sing, clap, yell, or apparently 

make any noise. They were on their way to the Board of Educa­

tion, the focus of their protest, by the most direct and most 

public route. Nevertheless, they were halted arrested, jaxled 

for up to five days, and eventually sentenced to $100.00 or

15 days.

in the language quoted above from Davis, this court 

states that the right to demonstrate on public places can be 

regulated only by narrowly drawn statutes that "consider all 

of the nuances of the time, place and manner" (395 F.2d at 736)

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The court there recognized that some buildings may be so sen­

sitive that they may be made totally off limits to public 

debate. Appellants do not question that a courthouse itself 

may be so designated. Nor do they question that a narrowly 

drawn regulation, whether statute, ordinance, or court order, 

could prohibit unruly and noisy crowds in the near vicinity of 

a courthouse while a court was in session that would make it 

impossible for a court to function. The order involved here, 

however, is not so narrowly drawn and does not address itself 

to these legitimate state interests. Rather, its overbreadth 

sweeps within its ambit orderly, peaceful, marches along

a public street whether or not they in fact could possibly inter­

fere with a court. Thus, it also should be held unconstitu­

tional for overbreadth.

III.

THE COURT BELOW ERRED IN NOT ENJOINING THE 
USE OF VIOLENCE BY LAW OFFICERS AGAINST 

ARRESTED DEMONSTRATORS

In yet another respect this case is related 

to LeFlore. In both, the issue of mistreatment of demon­

strators 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, or ordinances used against demonstrators.

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Hov/Gver, violGncG by law enfojrcGiri0nt officers aft0r arr0sts, 

w h 0 th0 r such arrests be constitutionally valid or not, can 

have a powerful deterrent effect on the free exercise of First 

Amendment rights.

In the present case, testimony, more fully described 

in the statement of facts above, was given concerning various 

acts of police officers that was clearly illegal. This in­

cluded the spraying of Mace and tear gas into cells filled 

with prisoners, the apparent destruction of pictures taken by 

one of the demonstrations, and the assault of a young demon­

strator. The district court, however, made no findings of 

fact concerning these claims and issued no injunctive relief 

against police violence.

jjo 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 prose­

cutions, it also should do nothing regarding these other claims.

We believe that this was plainly error. Ever since 

Kelly V. page, 335 F.2d 114 (5th Cir. 1964) this Court has made 

it clear that federal district courts have a responsibility to 

protect persons against all forms of interference with

the exercise of First Amendment rights. This includes protection

*/ And indeed, in HaQue v. C.I.O., 307 U.S. 496(1938) 
~  the Supreme Court also so held.

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against unwarranted violence by law-enforcement officers, 

see, Williams v. Wa ll ac e, 240 F. Supp. 100 (M.D. Ala. 1965).

Thus the order of the court below should be reversed 

and remanded with instructions to make findings concerning the 

alleged mistreatment of demonstrators and to issue appropriate 

xnjunctive relief if necessary.

IV.

THE COURT BELOW ERRED IN GRANTING 
INJUNCTIVE RELIEF AGAINST PLAINTIFFS.

AS noted in the statement of the case, the defendants- 

appellees cross-complained against the plaintiffs and asked for 

an injunction against certain alleged practices. Considerable 

testimony was introduced concerning alleged threats against 

black people who frequented stores against which a boycott was 

urged. There was also testimony concerning alleged acts of

arson, threatening telephone calls, etc.

The district court made findings of fact concerning 

these matters (A. 835-837). Although it denied any injunctive 

relief on behalf of plaintiffs, the court did issue an injunc­

tion against them, enjoining them from directly or indirectly 

attempting to "injure, oppress, threaten, intimidate, coerce 

or otherwise prevent" persons from shopping in stores and parti­

cularly from taking pictures or pointing cameras at people near 

or about stores.

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plaintiffs-Appellants urge that granting this in­

junction v/as error, particularly in the context of the court 

having failed to address itself to the evidence presented b y  them 

concerning acts of violence and intimidation visited on them in 

their exercise of First Amendment activities. Again, in this 

respect, the court below failed to conform to the rule established

in Kelly v. Page, supra.

jn Kelly, this Court held that a district court, when 

faced with a demonstration situation, must address itself to the 

total picture. It is not enough simply to enjoin demonstrators 

from committing acts that go beyond the pale of First Amendment 

protections. Rather, it must deal with all aspects of the 

situation and clarify for all concerned the duties, rights, and 

responsibilities of police officials as well.

To do otherwise has the inevitable effect of stifling 

and chilling the exercise of First Amendment rights. Here, 

the plaintiffs made serious allegations and presented evidence 

concerning police abuses. They also testified as to violence 

and intimidation inflicted on them. They appealed to the 

federal court for protection and for definition of their rights. 

But, the court said nothing about their allegations and refused 

to issue any guidelines to govern police conduct or to give them 

protection. Instead, it made findings as to alleged wrongful 

acts they had committed and issued an injunction against them 

along. The message to them seems clear; the court will not

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protect you against wrongful acts of the police when you are 

arrested as the result of a demonstration, but if you do anything 

wrong the court will add its weight to that of the police to 

keep you in line. With this array of force against them, wi th­

out any counterbalancing attempt to give protection or even 

decide whether protection is needed, individuals can hardly 

help but feel intimidated and deterred from exercising any of 

their constitutional rights for fear of the consequences.

Further, in the context of a balanced order spelling 

out what the police as well as the demonstrators may do, the 

injunction issued might be proper. But standing alone its 

language is too broad. It enjoins ^  attempts, direct or in­

direct, to prevent people from shopping in any store in Washing­

ton county. This could be interpreted by many as possibly in­

cluding speaking with people, or picketing, in order to convince 

them to join in the boycott. With the threat of being held in 

contempt of court ever present, many persons could decide not 

to take the risk that an attempt to persuade equalled an attempt

to prevent.

CONCLUSION

For the foregoing reasons, the order of the court 

below should be reversed and the case remanded with instructions 

to (1) enter a declaratory judgment that the Sandersville loitering

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and curfew ordinances and the court order prohibiting inarches 

are unconstitutional; (2) make findings of fact concerning 

the allegations of police misconduct; and (3) enter appropriate 

injunctive relief pursuant to the standards of Kelly v. Page.

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

JOHN H. RUFFIN, Jr.
930 Gwinnett St. 
Augusta, Ga. 30903

Attorneys For Plaintiffs-Appellants

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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 :

Mr. Denmark Groover, Jr, 
Attorney At Law 
P .O . Box 755 
Macon, Ga. 31202

Mr. T.A. Hutcheson 
Attorney At Law 
P.O. Box 621 
Sandersville, Ga. 31082

Mr. D.E. McMaster 
Attorney At Law 
P.O. Box 348 
Sandersville, Ga. 31082

Hon. Ervin L. Evans 
109 W  Church Street 
Sandersville, Ga. 31082

Done this day of November, 1970

/  V //
3 )

Attorney for Appellants-Plaintiffs.

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