Thomie v. Dennard Reply Brief for Plaintiffs-Appellants

    T ,» r  n i . wV. i. -

r UNITED STATES COURT OF APPEALS 
FOR THF- FIFTH CIRCUIT 

No. 30 -s' 3

OSCAR TROUTS, et al.,
p] a mti.f ts-Appellants, 

v.
B.E. DENNARD, et al.,

Defend a nts-A pp e. I i ees .

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

REPLY BRIEF FOR PIJi.INTIFFS~APPELLP.LTS

JACK GREENBERG 
CHARLES STEARIN RALSTON 
JONATHAIT SHAPT .0

10 Columbus viureie, Suite- 2 030 
New York, No-.’ York 10019

THOMAS M. JACKSON 
655 New Street 
Macon, Georgia 312 01

Attorneys for Plaintiffs-Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 30595

OSCAR THOMIE, et al.,
Plaintiffs-Appellants 

v.
B.E. DENNARD, et al.,

Defendants-Appellees.

Appeal from the united States District Court 
for the Middle District of Georgia

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

This brief is submitted, pursuant to the permission of the 
Court given at the oral argument in this case on February 16,
1972, in reply to the Supplemental Brief filed by the attorney for 
defendants-appellees shortly before that date.

In the Supplemental Brief the applicability of the decisions 
of the Supreme Court of the United States in Younger v. Harris,
401 U.S. 37 (1971), and its companion cases, is discussed.
At oral argument it was recognized that the decisions of the 
Supreme Court left open many questions as to the possible 
circumstances under which a federal court iray entertain an



action seeking declaratory and injunctive relief regarding the 
constitutionality of state criminal statutes. We urge that 
throughout the many majority and concurring opinions in those 
cases there is one unifying thread, that the determining question 
is •whether the asserted federal constitutional rights can be 
protected in a single state criminal proceeding. If they can 
be adequately and fully protected, which is the usual case, 
then the federal court may not intervene.

The exceptions to the general rule discussed by the Supreme 
Court in Younger, et al. support this conclusion. Thus, the 

, cases specifically recognized that where it is shown that a 
prosecution is brought in bad faith for the purpose of 
suppressing the exercise of federal constitutional rights then 
a federal court may intervene. This is because under those 
circumstances the prosecution itself, whether or not it ulti­
mately succeeds in state court, is the direct vehicle for the 
denial of federal constitutional rights. Therefore, even a 
successful defense to the prosecution will not adequately
protect those rights since the pendency of the prosecution

1/in and of itself has a "chilling effect."
Younger also suggests another circumstance in which a 

defense to a single state prosecution may not adequately

1/ At oral argument we acknowledged that in this case the 
court below found that there was no bad faith in the prosecutions 
here,and that that finding could not be held to be clearly 
erroneous. ~

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protect the particular constitutional rights involved; that is, 
where the prosecution "is only one of a series of repeated 
prosecutions to which [plaintiff] will be subjected," 401 U.S. 
at 49. In such circumstance, the defense in state court 
cannot protect the rights involved; the defendant wishing to 
exercise his constitutional rights on a continuing basis will 
be faced with a series of prosecutions. Thus, a federal court 
must act to protect the future exercise of First Amendment 
rights. The Supreme Court so held as long ago as Hague v.
C .I,0., 307 U.S. 496 (1938), and strongly reaffirmed that 
position in Zwickler v. Koota, 389 U.S. 241 (1967). And see 
Wisconsin v. Constantineau, 400 U.S. 433 (1971).

We urge that the present action comes within that provision 
of Younger and, moreover, is consistent with the decision of 
the Supreme Court of the United States in Zwickler. In essence, 
we urge that the federal constitutional rights sought to be 
vindicated cannot by their very nature and the circumstances 
of this case be protected by the defense of the pending state 
criminal proceeding. Here, there are plaintiffs who wish to 
conduct demonstrations and marches which they contend are within 
the scope of First Amendment prosecution. They seek a declara­
tion of their rights under the Constitution, viz., do they 
have to comply with the City parade ordinance or is it uncon­
stitutional so that under applicable decisions of the Supreme 
Court of the United States (see Shuttlesworth v. Birmingham,
394 U.S. 147, 151, n. 3 (1969)) they may conduct their

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demonstration ■without compliance until such time that the City 
passes a constitutional ordinance? Moreover, they allege, 
and evidence was presented supporting the allegation, that they 
were subjected to illegal police action which had the effect 
of discouraging them from exercising their federal constitutional 
rights, and will continue to have that effect unless they are 
given protection by the federal court. Thus, the continuing 
nature of the controversy and the threat of a series of future 
prosecutions brings the case within the suggested exception 
to the Younger rule, and the case is similar to Zwickler v.

’ Koota where the plaintiff also sought protection for the 
future exercise of his First Amendment rights.

Younger, Zwickler v. Koota, Golden v. Zwickler, 394 U.S.
103 (1969), and Boyle v. Landry, 401 U.S. 77 (1971), suggest 
another requirement for the maintenance of such an action, 
viz., the particular plaintiffs must have sufficient standing 
to bring the action. In other words, there must be an actual 
controversy either because the plaintiffs have been prosecuted 
in the past or are under a clear threat of future prosecutions. 
Thus, in Younger the action was ordered dismissed as to two 
plaintiffs who did not meet this standing requirement. And 
in Boyle the action was ordered dismissed because the plaintiffs 
had not shown that they were under any threat of being prosecuted 
under the statute which the district court found to be uncon­
stitutional. Golden v. zwickler, the follow-up case to 
Zwickler v. Koota, also makes it clear that the controversy

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demonstration •without compliance until such time that the City 
passes a constitutional ordinance? Moreover, they allege, 
and evidence was presented supporting the allegation, that they 
were subjected to illegal police action which had the effect 
of discouraging them from exercising their federal constitutional 
rights, and will continue to have that effect unless they are 
given protection by the federal court. Thus, the continuing 
nature of the controversy and the threat of a series of future 
prosecutions brings the case within the suggested exception 
to the Younger rule, and the case is similar to Zwickler v.

• Koota where the plaintiff also sought protection for the 
future exercise of his First Amendment rights.

Younger, Zwickler v. Koota, Golden v. Zwickler, 394 U.S.
103 (1969), and Boyle v. Landry, 401 U.S. 77 (1971), suggest 
another requirement for the maintenance of such an action, 
viz., the particular plaintiffs must have sufficient standing 
to bring the action. In other words, there must be an actual 
controversy either because the plaintiffs have been prosecuted 
in the past or are under a clear threat of future prosecutions. 
Thus, in Younger the action was ordered dismissed as to two 
plaintiffs who did not meet this standing requirement. And 
in Boyle the action was ordered dismissed because the plaintiffs 
had not shown that they were under any threat of being prosecuted 
under the statute which the district court found to be uncon­
stitutional. Golden v. Zwickler, the follow-up case to 
Zwickler v. Koota, also makes it clear that the controversy



must be a live one; the action was ordered dismissed as moot 
since, although the plaintiff had been charged with violating 
the statute in question in the past, there was no present 
danger of any such prosecution.

To illustrate our point, a hypothetical case may be 
suggested. (1) An action is brought by individuals who wish 
to conduct peaceful demonstrations and marches in a town.
(2) The town has a parade ordinance which is consitutionally 
suspect and which requires permits. (3) Other persons have 
been denied permits and have been arrested and prosecuted for 

' marching without them. (4) The plaintiffs themselves have 
requested a permit but have been denied one. (5) And there is, 
because of past police practices, a substantial threat of 
unlawful police action against the demonstrators. We would 
urge that the plaintiffs could bring and successfully maintain 
such an action in federal district court for the declaration 
of their rights and, if necessary, obtain an injunction prohibiting 
the enforcement of the parade ordinance or any other interference 
with their rights. See Hague v. C.I.0., supra.

The present case is the same as the hypothetical, with 
one exception; that is, the plaintiffs thenselves have been 
arrested and prosecuted for violating the parade ordinance 
in the past. If anything, this circumstance strengthens the 
right to bring the suit because it clearly establishes the 
existence of a threat to their constitutional rights. See 
Boyle v. Landry, 401 U.S. at 80-81.

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For these reasons, we suggest to this Court that the 
proper disposition should be that used in Leflore v. Robinson,
______ F.2d ______ (No. 28632, June 25, 1971), and in Dyson v.
Stein, 401 U.S. 200 (1971); that is, the case should be remanded 
to the district court to make further findings of facts, with 
instructions to apply the legal standards enunciated above to 
decide whether there is a continuing controversy and a present 
threat that the plaintiffs may be subjected to prosecution under 
the parade ordinance and/or police malpractices if they exercise 
their constitutional rights of peaceful assembly. On remand,

. of course, it may be necessary for the Court to require some 
supplemental evidence with regard to the present situation to 
decide, consonant with Golden v. Zwickler, whether there is 
an existing controversy or whether the matter has become moot.
If the district court finds that the Younger and Zwickler 
prerequisites are present then it should proceed to a declaration 
of the rights of the parties, including the issuance of a 
declaratory judgment with regard to the constitutionality of 
the parade ordinance, and determine whether or not injunctive 
relief along the lines indicated in Kelly v. Page, 335 F.2d 
114 (5th Cir. 1964) is necessary.

Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
JONATHAN SHAPIRO

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

2/ New fact findings are required because it is clear that the 
district court did not decide the case below according to the 
above requirements, but took the position that 28 U.S.C. §2283 was 
an absolute bar to any relief under any circumstances.



THOMAS M. JACKSON 
655 New Street 
Macon, Georgia 31201

Attorneys for Plaintiffs-Appellants

CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the attached 
Reply Brief of Plaintiffs-Appellants on counsel for Defendants- 
Appellees by mailing the same air-mail, postage prepaid, to 
, Manley F. Brown, 549 Mulberry St., Macon, Georgia 31201.

Done this 18th day of February, 1972.

I ' Attorney for Appellants-Plaintiffs

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