Turner v. Barron Brief for Defendants-Appellees
Public Court Documents
December 21, 1970

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Brief Collection, LDF Court Filings. Turner v. Barron Brief for Defendants-Appellees, 1970. ec871d0f-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6b584e6b-9822-4892-b4c7-0cf1a0e91cde/turner-v-barron-brief-for-defendants-appellees. Accessed May 02, 2025.
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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