Gonzalez v. The Home Insurance Company Complaint

    SIGNED COPY

IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 30.433
RICHARD TURNER, et al.,

Plaintiffs-Appellants,
versus

LEE BARRON, et al.,
Defendants-Appellees.

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

BRIEF FOR DEFEN DAN TS-APPELLEES

BYRD, GROOVER & BUFORD
P. O- BOX 755
MACON, GEORGIA 31202

D. E. McMASTER 
SANDERSVILLE, GEORGIA 
Attorneys for Defendants-Appellees



INDEX
Page

ISSUES PRESENTED ........................................................ 1

STATEMENT OF THE CASE .......................................... 2

ARGUMENT:

I. WHETHER THE COURT ERRED IN  
HOLDING THAT IT SHOULD NOT 
GRANT DECLARATORY RELIEF ON 
THE COMPLAINT AND THE EVI­
DENCE ...................................................................... 4

II. WHETHER THE COURT ERRED IN 
FAILING TO MAKE FINDINGS OF 
FACT AND IN FAILING TO GRANT 
AN INJUNCTION AGAINST ALLEGED  
MISTREATMENT BY LAW ENFORCE­
MENT OFFICERS? .............................................. 8

III. WHETHER THE COURT ERRED IN 
ISSUING AN INJUNCTION AGAINST 
THE PLAINTIFFS-APPELLANTS? .............. 9

CONCLUSION ...........................................................................10

CERTIFICATE OF SERVICE ...........................................11



II
TABLE OF CASES

Atlantic Cotaist Line v. Engineers,

Page

U.S.
26 L.Ed. 2d 234 ..................................................................  5

Cameron v. Johnson, 390 U.S. 611, 20 L.Ed.2d 182 . . . .  5

Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116,
14 L.Ed. 2d 22 ..................................................................  5

Jones V . Mayer, 392 U.S. 409, 20 L.Ed.2d 1189 ..........  9

Kelly V . Page, 335 F2d 114, 118 (5th Cir. 1964) ..........  9

LeFlore, et al. v. Robinson, et al. (5th Cir., No­
vem ber 12, 1970) ..........................................................  5, 6

McLucas V . Piahner, F.2d (2nd Circuit,
May 21, 1970) 38 Law Week 2665 ..............................  6

Mitchum v. Foster (Three Judge D istrict Court, 
Northern District of Florida rendered July 
22, 1970) ..............................................................................  5

Zwickler v. Zoota, 389 U.S. 241, 19 L.Ed. 2d 444 ..........5

Statutes

28 U.S.C. §2283 ...............................................................   5

42 U.S.C. §1982 ..........................................................................  9

18 U.S.C. §241 ..........................................................................  9



IN THE
UNITED STATES COURT OF APPEALS  

FOR THE FIFTH CIRCUIT

No. 30,433

RICHARD TURNER, et al..
Plaintiffs-Appellants,

versus

LEE BARRON, et al.,
Defendants-AppeUees.

Appeal From The United States D istrict Court For The 
Middle D istrict of Georgia

BRIEF FOR DEFENDANTS-APPELLEES

ISSUES PRESENTED

I. Whether the Court erred in holding that it 
should not grant declaratory relief on the 
complaint and the evidence?

II. Whether the Court erred in failing to make 
findings of fact and in failing to grant an 
injunction against alleged m istreatm ent 
by law  enforcement officers?



III. Whether the Court erred in issuing an in­
junction a g a i n s t  the Plaintiffs-Appel- 
lants?

STATEMENT OF THE CASE

Appellants brought this action on behalf of them ­
selves and others as a result of numerous arrests in 
the City of Sandersville, Georgia for three separate 
violations of law:

(a) Violating the anti-trespass law  of the State of 
Georgia;

(b) Violating a Court im posed order against 
m arches in the vicinity of the courthouse; and

(c) Violating a curfew ordinance of the City of San­
dersville.

All of the arrests, which gave rise to this action, 
occurred on the sam e day and the arrests referred  
to in (c) w as a result of the acts of those arrested  
to force the release of persons arrested and held for 
the violations described in (a) and (b).

The order appealed from w as issued only after a 
full evidentiary hearing at which presum ably all avail­
able evidence was presented.

This brief on the part of the Defendants is prim arily  
concerned with the denial of the relief prayed with



respect to the arrests m ade with respect to the City 
of Sandersville curfew ordinance.

On February 6, 1970, persons for whom this class 
action was brought were arrested in the City of San­
dersville for marching, after having been warned not 
to do so, in violation of an order of the Judge of the 
City Court for Washington County. Later that sam e 
day another group was arrested for refusing to leave  
private prem ises, after having been requested to do 
so.

These persons were confined by the proper officials 
and refused to m ake bond. Later that sam e day a group 
of sympathizers, including some of the ones who bring 
and for whom this action is brought, determined to 
dem onstrate until those previously arrested earlier in 
the day had been released. In the words of one of the 
Plaintiff’s w itnesses: “We went down town to sit until 
they let them  go, or until they lock us up.” (Mrs. Gor­
don, A-212)

Some several days after the arrests, those arrested  
were released and prosecutions for the violations were 
initiated in the Municipal Court of Sandersville, Geor­
gia with respect tO' the city ordinance violation and 
the City Court of Washington County with respect to 
the anti-trespass statute and the violation of the court 
order.

Thereafter, on March 9, 1970, the Plaintiffs filed this 
complaint alleging that the various ordinances and 
law s were unconstitutional on their face and as applied



to the Plaintifls and the class which they represented. 
A tem porary injunction was issued; and, thereafter, 
the m atter was fully and com pletely heard by the trial 
judge.

The thread nf Plaintiff’s com plaint and the m otivat­
ing factor for the relief sought was the alleged chilling 
or interference with their F irst Am endm ent rights.

At the conclusion of the hearing and evidence, the 
Judge rendered an opinion (A-829, et seq.) denying the 
relief.

ARGUMENT

I.

WHETHER THE COURT ERRED IN HOLDING 
THAT IT SHOULD NOT GRANT DECLARA­
TORY RELIEF ON THE COMPLAINT AND THE 
EVIDENCE?

This Court, perhaps more than any other Circuit in 
the United States, has dealt with cases of this type 
and has exam ined in depth and applied the rules of 
the Supreme Court of the United States in the delicate 
area of conflict brought about by controversies bring­
ing into play the issues of adequate protection of Citi­
zens’ F irst Amendment Rights v. Federal — State Re­
lationships.

The D istrict Court, in his opinion, exam ined and ap­
plied the Supreme Court’s pronouncements in this area



and particularly Atlantic Coast Line v. E n g in eers ,------
U.S. ____ , 26 L.Ed.2d 234; D ombrowski v. Pfister, 380
U. S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22; Cameron v. John­
son, 390 U.S. 611, 20 L.Ed.2d 182; Zwickler v. Koota, 
389 U.S. 241, 19 L.Ed.2d 444, and others. The Court 
also exam ined and applied the federal statutory pro­
hibition contained in 28 U.S.C. §2283. Having exam ­
ined those pronouncements and federal statute, the 
Court concluded that since state court jurisdiction had 
attached that in line with Atlantic Coast Line v. En­
gineers, supra, a federal injunction should not be is­
sued, The Court further concluded with due regard to 
Zwickler v. Koota, supra, that a declaratory judgment 
should not be granted.

It would serve little, if any, useful purpose for the 
authors of this brief to attem pt to re-exam ine the doc­
trines laid down by the Supreme Court in the cases  
in which this controversy has arisen and their appli­
cation. Learned Judges of this Court have exam ined  
and applied the pronouncements in those cases and 
have differed as to their effect (LeFlore, et al.
V.  Jam es Robinson, et al., November 12, 1970). An e x ­
amination of those cases and their application by the 
Supreme Court and by this Court and the Judges there­
of seem s to stand without dispute for the proposition 
that once state court jurisdiction has attached, in view  
of §22 U.S.C. 2283, a federal injunction will not lie. 
Atlantic Coast Line v. Engineers, supra; LeFlore v. 
Robinson, supra; Robert Mitchum v. Clinton E. Foster  
(Three Judge D istrict Court, Northern D istrict of 
Florida rendered July 22, 1970).



6

Were it not for LeFlore v. Robinson, supra, it would 
seem  that the correctness of the D istrict Court’s ruling 
and order would be without dispute. In that case, how­
ever, in a two to one decision, Judges Goldberg and 
Simpson held for this Court that despite the prohibi­
tions against injunctions Plaintiffs such as these m ay  
obtain indirectly what they cannot obtain directly, that 
is a declaratory judgment which, if not followed, will 
result in an injunction. Judge Gewin forcefully points 
out that the effect of such ruling is sim ply to circum ­
vent the plain m andate of 28 U.S.C. 2223 and to repu­
diate what w as held by the Second Circuit in McLucas
V.  Palm er,  ------  F.2d ____  (2nd Circuit, May 21, 1970)
38 Law Week 2665 wherein that Court said:

“A declaratory judgment would create the 
sam e opportunity as an injunction for delay 
and disruption of the state crim inal proceed­
ings and the sam e danger of having federal 
courts plunge them selves into the considera­
tion of issues that m ay prove academ ic or at 
least m ay appear in a different light after 
trial.”

Assuming, but not conceding, that LeFlore, supra, 
correctly reflects the view s of a m ajority of the Judges 
of this Circuit, still that case is decidedly different on 
its facts from the case  at bar.

That case, we suggest, was prompted by the fail­
ure and refusal of the D istrict Court tO' hold an ev i­
dentiary hearing. Such was not true here. That case  
as it was considered and decided by the D istrict Court



did not have a record, as here, from which it could 
be readily ascertained that here (in the words of Judge 
Gewin) “there are claim s activities are First Amend­
m ent expressions, when the actual facts show that the 
actors are parading (violating the curfew) under 
a shield of hypocrisy.” The record in this case  shows 
that Plaintiffs-Appellants’ characterizations of “ ‘peace­
ful protest’, ‘peaceful assem bly’ and ‘freedom  of ex­
pression’ are used as an im penetrable carapace to 
shield violent and riotous conduct.” (Judge Gewin, Le- 
Flore)

The record in this case shows that from October of 
1969 throughout January of 1970, Plaintiffs-Appellants 
and those sim ilarly situated were permitted, without 
molestation, without harassm ent, and indeed with po­
lice protection, to free exercise and First Amendment 
right of protest, and that it w as only when their conduct 
was deliberately and m aliciously designed to violate 
a specific law  that official forces intervened and in- 
terferred. There was no evidence in this case nor evi­
dence from which it could be said that the right of 
peaceful protest was or would be chilled. The ordi­
nance which they were charged with violating w as sp e­
cific, w as reasonable, w as well-known, and was only 
called into play after repeated warnings on the occa­
sion of its enforcement.

The record shows that those who violated that ordi­
nance did so not to peaceably protest but rather to  
force release of others previously arrested and that 
their conduct sm acked of anarchy.



8

We respectfully submit, therefore, that the actiou  
of the trial court in denying the relief sought was not 
only dictated by sound principles of law, but as to> the 
declaratory judgment feature, by sound principles of 
law  as well as the exercise of a sound discretion based  
on the facts presented.

II.

WHETHER THE COURT ERRED IN FAILING 
TO MAKE FINDINGS OF FACT AND FAIL­
ING TO GRANT AN INJUNCTION AGAINST 
ALLEGED MISTREATMENT BY LAW EN­
FORCEMENT OFFICERS?

The issue presented here is whether there w as suf­
ficient evidence which determ ined a finding that there 
w as in fact police brutality. A reading of the record 
in this case dem onstrates that this contention was in­
serted by the Plaintiffs-Appellants in an effort to justi­
fy their riotous conduct. The record shows that the 
Court below was justified in failing to find sufficient 
evidence to conclude that the alleged m istreatm ent in 
fact occurred. If the treatm ent did in fact occur, in­
junctive relief, there being no evidence of threatened  
continuation of the alleged conduct, would not be an 
appropriate rem edy but rather any person subjected  
to illegal m istreatm ent could file an appropriate com­
plaint with the Federal Departm ent of Justice seeking 
prosecution for civil rights violation.



ni.
WHETHER THE COURT ERRED IN ISSUING 
AN INJUNCTION AGAINST THE PLAINTIFFS- 
APPELLANTS?

The record in this case is replete with instances of 
harassm ent, threats and intimidation by the Plaintiffs 
and those sim ilarly situated against other citizens of 
Washington County which had as their purpose the pro­
hibiting of those persons by coercion from shopping 
as and where they pleased. (See the instances cited 
in the D istrict Court’s opinion — A-836-838).

§42 U.S.C. 1982 provides

“All citizens of the United States shall have the 
sam e right, in every State and Territory, as is 
enjoyed by white citizens thereof t0‘ inherit, 
purchase, lease, sell, hold, and convey real and 
personal property.”

§18 U.S.C. 241 m akes it a crim inal offense for two 
or m ore persons to' intimidate any citizen in the free 
exercise of rights secured by the laws of the United 
States. In Jones v. Mayer, 392 U.S. 409, 20 L.Ed.2d 
1189, the Supreme Court of the United States has af­
firm atively declared the judicial rights of the District 
Court to consider a complaint of this nature. See also 
K elly  V.  Page, 335 F.2d 114, 118 (5th Cir. 1964).

As we view  th is facet of the case, the issue resolves 
itself sim ply into the question of whether there was 
evidence sufficient to justify a finding that the Plain-



10

tiffs, and those on whose behalf they sued, were illega l­
ly interferring with the rights of others to such an ex­
tent as to justify the District Court in entering an order 
which chilled protection of the rights of others, in no 
w ay could be said to abridge the Plaintiffs-Appellants 
right of freedom  of expression and protest.

CONCLUSION

For all of the reasons urged above, we respectfully  
insist that the case should be affirmed.

BYRD, GROOVER & 
BUFORD

Denmark Groover, Jr.
P. O. Box 755 
Macon, Georgia 31202

^ 9.;
D. E. McMaster

P. O. Box 348
Sandersville, Georgia 31082



11

CERTIFICATE OF SERVICE

I, Denmark Groover, Jr., of counsel for the Defend- 
ants-Appellees certify that I have served copies of the 
attached Brief of Defendants-Appellees by m ailing the 
sam e, postage prepaid to:

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

Thi day of Decem ber, 1970.

Denmark Groover, Jr. 
Of Counsel for 
Defendants-Appellees



Scofields’ Quality Printers, Inc. — New Orleans, La.

ge