Abrams v. Johnson Brief for Appellants

    I k  the

Mtttfrft ^tafpo (Eoarf of A ^ a lo
F or the F ifth  Circijit 

No. 22008

Lee F. D ir w o rth , et al.,

-v.-
Appellants,

T. N. B i k e r , et al.,
Appellees.

ok  appear  from  t h e  ithited states district  court for t h e

KORTHERK DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANTS

B. J ess B rowk
125% North. Farish Street 
Jackson, Mississippi 39201

H ekry M. A roksok
507% North Farish Street 
Jackson, Mississippi 39201

Jack Greekberg
Mervyk Z arr

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



I N D E X

Statement of the Case .....................- ............................. 1

Specification of Error ........................ -..........................  3

A rgument :

I. 28 U. S. C. §.2283 Is No Bar to the Exercise of 
the Federal Injunction Power Granted by Title 
II of the Civil Bights Act of 1964 to Stay State 
Prosecutions Punitive of Appellants’ Title II 
Rights .....................................................................  3

II. This Court Has Jurisdiction to Review the
Denial of Injunctive Relief Below ....................  10

Conclusion .................................................................................  11

Certificate of Service........................................................  12

T able of Cases

Amalgamated Clothing Workers v. Richman Bros. Co.,
34S IT. S. 511 (1955) ....................      5

Application of Wyekoff, 196 F. Supp. 515 (S. D. Miss. 
1961), aff’d, 5th Cir. July 22, 1961, 6 Race Rel. L.
Rep. 793...........................................................................9-10

Bailey v. Patterson, 199 F. Supp. 595 (S. D. Miss.
1961) ..................................... -........................................  8

Baines v. City of Danville, 4th Cir., No. 90S0, decided
August 10, 1964  ................................. .....................  6, 9

Brown v. Rayfield, 320 F. 2d 96 (5th Cir. 1963), cert, 
den. 375 U. S. 902 (1963)

PAGE

9



11

Dombrowski v. Pfister, 227 F. Supp. 556 (E. D. La. 
1964), prob. juris, noted, 377 U. S. 976 ..................  8

Poole v. Barnett, 336 F. 2d 267 (5th Cir. 1964) ........... 9
Porter v. Dieken, 328 U. S. 252 (1946) ...................... 5, 6

Smith v. Apple, 264 U. S. 274 (1924) ......................  8
Southern California Petroleum Corp. v. Harper, 273 

F. 2d 715 (5th Cir. 1960) .........................................  8

Toucey v. New York Life Insurance Company, 314 
TJ. S. 118 (1941) ........................................................  5,6

United States v. Wood, 295 F. 2d 772 (5th Cir. 1961) 10

Woods v. Wright, 334 F. 2d 369 (5th Cir. 1964) ....... 10

PAGE

Statutes

Act of March 2, 1793, Section 5, 1 Stat. 335 ..............  4

Civil Rights Act of 1964, 78 Stat. 241 ..............4, 5, 6, 7, 8
Emergency Price Control Act of 1942, Section 205(a),

56 Stat. 23 ................................................................. 5

Judicial Code §265 (1911) ...............................................  4
Revised Statutes (1874), §720 ............................................ 4

36 Stat. 1162 ................................................................. 4

28 U. S. C. §379 (1940) ..................................................  4

28 U. S. C. §2254 ............................................................ 10

28 U. S. C. §2283 ................................................ 2, 3, 4, 5, 6, 8

42 U. S. C. §1983 ...........................................................  6, 9



I l l

Other A uthorities

110 Cong, Rec. 1843 (daily ed. February 4, 1964) .... 8

110 Cong. Rec. 6871 (daily ed. April 7, 1964) ............  7

110 Cong. Rec. 9463 (daily ed. May 1, 1964)  ............ 7

Lusky, Racial Discrimination and the Federal Law;
A Problem in Nullification, 63 Columbia L. Rev. 1163 
(1963) ......................................................................... 8

IA Moore’s Federal Practice, J[Q.213[1], p. 2417 ....... 6

United States Commission on Civil Rights, Report 
(1963), pp. 107-108 ................. ....................................  8

PAGE



I n  t h e

Itufpfr Court of Kppm lz
F ob the F ifth Circuit 

No. 22008

L ee F. D ilworth, et at,

T. N. R iner, et at,

Appellants,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANTS

Statement of the Case

On September 5, 1964, appellants went as a group to 
Tom’s Restaurant in Aberdeen, Mississippi (Transcript 
51). Their purpose was to enforce their right to full and 
equal access to places of public accommodation in Aber­
deen, as guaranteed by the Civil Rights Act of 1964 (Tr. 11, 
34).

Upon entering, appellants requested service (Tr. 10, 16, 
25, 26, 35, 43). They were told by the waitress that they 
could only be served in the rear of the restaurant (Tr. 9, 
16, 26, 49), which was reserved for Negroes (Tr. 9, 18, 26, 
34, 44). Appellants refused to go to the Negro section of



2

the restaurant, and waited in a quiet and orderly manner 
for service (Tr. 11, 18, 26, 30, 48).

After a short time officer Newman of the Aberdeen police 
arrived (Tr. 53), and appellants were threatened with 
arrest if they refused to leave (Tr. 17, 27, 36, 45). Appel­
lants insisted upon their right to be served in the white 
portion of the restaurant and were thereupon informed by 
officer Newman that they were under arrest (Tr. 54). They 
were taken into custody by appellee Adams, Chief of Police 
of Aberdeen (Tr. 18, 53), assisted by appellee Lackey, 
Deputy Sheriff of Monroe County (Tr. 53, 58). Appellants 
were later charged with refusing to leave premises after 
having been requested to do so (Tr. 60).

Later that evening, some appellants were released to the 
custody of their parents by appellee Howell, Mayor and 
Presiding Judge of the ex-officio Justice of the Peace Court 
of Aberdeen, who informed them that the Civil Rights Act 
of 1964 was of no effect in Mississippi (Tr. 13, 38, 47, 62).

Thereafter, on September 22, 1964, appellants instituted 
the present action in the United States District Court for 
the Northern District of Mississippi, seeking an injunction 
against their prosecutions in state court, complaining that 
such prosecutions punished them for exercising rights 
guaranteed by Title II of the Civil Rights Act of 1964.

On October 2, 1964, appellants’ motion for a temporary 
restraining order against their further prosecution was 
heard by United States District Judge Claude F. Clayton. 
Although Judge Clayton assumed, for purposes of the hear­
ing, that Tom’s Restaurant was covered by the Civil Rights 
Act of 1964 (Tr. 74), he nevertheless held that he was 
without authority to issue any injunctive relief because 
of the federal anti-injunction statute, 28 U. S. C. §2283 
(Tr. 84-86). An order denying injunctive relief was filed



3

on October 5, 1964 and a timely appeal of this ruling was 
taken to this Court on October 8, 1964.

Specification of Error

The District Court erred in holding that 28 IT. S. C. §2283 
bars it from using the federal injunction power contained 
in Title II of the Civil Rights Act of 1964 to enjoin state 
prosecutions which punish persons for the exercise of their 
Title II rights.

A R G U M E N T

I.
28  U. S. C. §2283  Is No Bar to the Exercise of the 

Federal Injunction Power Granted by Title II of the 
Civil Rights Act of 1964 to Stay State Prosecutions Puni­
tive of Appellants’ Title II Rights.

United States District Judge Clayton denied appellants 
relief, holding that section 2283 barred him from using the 
federal injunction power contained in Title II of the Civil 
Rights Act of 1964 to stay state prosecutions which pun­
ished them for the exercise of their Title II rights. Judge 
Clayton concluded that Title II of the Civil Rights Act of 
1964, taken together with §2283, granted no authority to 
federal courts to enjoin state court proceedings (Tr. 84-85).

This ruling, appellants submit, is erroneous. Section 
2283 provides:

A court of the United States may not grant an injunc­
tion to stay proceedings in a State court except as ex­
pressly authorized by Act of Congress, or where neces­



4

sary in aid of its jurisdiction, or to protect or effec­
tuate its judgments.1

Section 204(a) of the Civil Eights Act of 1964, 78 Stat. 
241, provides:

Whenever any person has engaged . . .  in any act or 
practice prohibited by Section 203, a civil action for 
preventive relief, including an application for a per­
manent or temporary injunction, restraining order, or 
other order, may be instituted by the person ag­
grieved . . .

Section 203(c) provides:

No person shall . . . punish or attempt to punish any 
person for exercising or attempting to exercise any 
right or privilege secured by section 201 or 202.

Section 201(a) provides:

All persons shall be entitled to the full and equal en­
joyment of the goods, services, facilities, privileges, 
advantages, and accommodations of any place of pub­
lic accommodation, as defined in this section, without

1 The original version of section 2283 was Section 5 of the Act 
of March 2,1793,1 Stat. 335, which provided:

. . . nor shall a writ of injunction be granted . . .  to stay pro­
ceedings in any court of a state . . .

This section was amended by 36 Stat. 1162 to read:
The writ of injunction shall not be granted by any court of 
the United States to stay proceedings in any court of a state, 
except in cases where such injunction may be authorized by 
any law relating to proceedings in bankruptcy.

This language was carried forward as § 720 of the Revised Stat­
utes (1874), § 265 of the Judicial Code (1911) and as 28 U. S. C. 
§ 379 (1940) ; the revision of 1948, 62 Stat. 968, produced the pres­
ent section 2283.



5

discrimination or segregation on the ground of race, 
color, religion, or national origin.

It is appellants’ contention that, by Title II of the Civil 
Eights Act of 1964, Congress has “ expressly authorized” 
federal courts to grant injunctions against state prosecu­
tions which punish or attempt to punish persons for exer­
cising or attempting to exercise their rights to the full and 
equal enjoyment of places of public accommodation.

The test of express authorization is not that the statute 
must refer in terms to §2283,2 nor is it that the statute must 
refer in terms to state court proceedings.3 4 A general grant 
of equity jurisdiction may be enough to authorize a stay 
of state court proceedings, consistent with §22832

2 Amalgamated Clothing Workers v. Rickman Bros. Co., 348 
U. S. 511, 516 (1955).

3 Porter v. Dicken, 328 IT. S. 252 (1946), where the Supreme 
Court held that section 205(a) of the Emergency Price Control Act 
of 1942, 56 Stat. 23, creating a general cause of action for an in­
junction against a violation of the Act but not referring in terms 
to an injunction against state court proceedings, authorized a fed­
eral injunction staying execution of an eviction order of a state 
court when the eviction would violate the Act.

4 Despite the apparently unequivocal language of the predeces­
sors of section 2283 (see note 1, supra), the United States Supreme 
Court over the years declared a variety of implied exceptions to 
the broad sweep of its prohibition.

One category of judicially-declared implied exceptions was the 
category of the so-called “statutory” exceptions, exceptions found 
to have arisen out of subsequent acts of Congress which authorized 
injunctive relief and which appeared to amend pro tanto the anti­
injunction act.

In Toucey v. New York Life Insurance Company, 314 U. S. 118 
(1941), the United States Supreme Court severely resricted the 
scope of implied exceptions to section 2283, by holding that § 2283 
barred federal courts from enjoining re-litigation in state courts 
of issues already fully litigated in federal courts. But Congress, 
through the 1948 revision of section 2283, determined to restore



6

The test of express authorization has been variously 
phrased. Professor Moore believes that the “underlying 
purpose” 5 of the statute granting general equity juris­
diction must be looked to in determining whether an in­
junction against state court proceedings is authorized. 
In Baines v. City of Danville, 4th Cir., No. 9080, decided 
August 10, 1964—much relied on by the court below—the 
Court of Appeals for the Fourth Circuit suggested that 
the test was whether proceedings in a state court were 
“incompatible” with the injunction power granted by the 
statute in question.6

Whatever test is chosen, Title II of the Civil Rights Act 
of 1964 meets it. Title II is incompatible with, and its 
underlying purpose would be frustrated by, the continu­
ation of state prosecutions which punish persons for the 
exercise of rights guaranteed by Title II. If the injune-

the basic law, as generally understood and interpreted prior to the 
Toucey decision. The Reviser’s Note states:

An exception as to acts of Congress relating to bankruptcy 
was omitted and the general exception substituted to cover 
all exceptions.

[T]he revised section restores the basic law as generally under­
stood and interpreted prior to the Toucey decision.

Thus, the exception “as expressly authorized by Act of Congress” 
was intended to cover “all” exceptions, including the bankruptcy 
exception, those “statutory” exceptions already judicially declared 
and future “ statutory” exceptions.

The pre-1941 “statutory” exceptions are discussed in the opinion 
of Mr. Justice Frankfurter in Toucey v. New York Life Insurance 
Company, 314 U. S. 118, 133-134 (1941). Porter v. Dicken, 328 
U. S. 252 (1946), is the outstanding post-1941 case dealing with 
implied “statutory” exceptions.

6IA Moore’s Federal Practice, jf 0.213 [1], p. 2417.
6 In Baines, the Court held (3-2) that 42 U. S. C. § 1983 was not 

excepted from the operation of § 2283, stating that there was no 
incompatibility between further proceedings in state court and the 
general equity jurisdiction conferred by 42 U. S. C. § 1983.



7

tion power granted by Title II cannot stay state prosecu­
tions which frustrate the rights conferred by Title II, that 
injunction power is rendered nugatory.

Simply stated, Section 204(a) authorizes a federal in­
junction against any person defined in 203(e). This defi­
nition includes a state officer who prosecutes persons for 
the exercise of their rights under Section 201 or 202. Leg­
islative history makes it clear that the punishment pro­
scribed by Section 203(c) includes prosecution under state 
charges like appellants’. Senator Humphrey, floor man­
ager of the Act in the Senate, declared (110 Cong. Ree. 
9463 (daily ed. May 1, 1964)):

[Sjection 203(c) . . . prohibits the imposition of pun­
ishment upon any person “ for exercising or attempt­
ing to exercise any right or privilege” secured by 
Section 201 or 202. This plainly means that a defen­
dant in a criminal trespass, breach of the peace, or 
other similar case can assert the rights created by 
201 and 202 and that State courts must entertain de­
fenses grounded upon these provisions.

Senator Stennis recognized the sweep of Section 203(c) 
when he stated (110 Cong. Rec. 6871 (daily ed. April 7, 
1964)) :

As to State judges and State law enforcement officers, 
Section 203(c) provides that “no person shall (c) pun­
ish or attempt to punish any person for exercising or 
attempting to exercise any right or privilege secured 
by Section 201 or 202.” This is patently an attempt 
to make enforcement by State judges and State law 
enforcement officers of State laws which may later 
be held to conflict with the act a violation of a federal 
law and to subject them to punitive federal action.



8

And Congressman Harris opposed Section 203(c) on the 
ground that it “would interfere with the enforcement of 
trespass laws in every state in the Union” (110 Cong. Rec. 
1843 (daily ed. February 4, 1964)).

Further, it should be recognized that Section 2283 is 
essentially a rule of comity rather than a jurisdictional 
statute.7 As such, its policy embodies a traditional respect 
for the independence of the state judiciary. But comity 
has no place when the state court proceeding is eo ipso 
violative of federal rights. The federal interest in comity 
does not extend to protection of the power of the state 
judiciary to punish persons for the exercise of federal 
rights.

To compel appellants “ to raise and protect their con­
stitutional rights through the myriad procedure of local 
police courts, county courts and state appellate courts, with 
little prospect of relief before they reach the United States 
Supreme Court” (Rives, J., dissenting, Bailey v. Patterson, 
199 F. Supp. 595, 616 (S. D. Miss. 1961)) is to render mean­
ingless the great guarantees of Title II of the Civil Rights 
Act of 1964. For the fact of prosecution is punishment 
enough, and is a proven deterrent to the exercise of fed­
eral rights.8 As Judge Wisdom observed in Dombrowshi 
v. Pfister, 227 F. Supp. 556, 572 (E. D. La. 1964), prob. 
juris, noted, 377 U. S. 976 (dissenting opinion), as to simi­
lar complainants, appellants “ should not be subjected to the 
public indignity of prosecution, the paralysis of earning

7 Smith v. Apple, 264 U. S. 274, 278-279 (1924); Southern Cali­
fornia Petroleum Corp. v. Harper, 273 F. 2d 715, 718 (5th Cir. 
1960).

8 See United States Commission on Civil Rights, Report (1963), 
pp. 107-108, 112; Lusky, Racial Discrimination and the Federal 
Law; A  Problem in Nullification, 63 Columbia L. Rev. 1163, 1182 
(1963).



9

ability while their case is pending, and the travail of a long, 
expensive appeal through the state courts to the United 
States Supreme Court. These are foreseeable and inequi­
table consequences of unlawful State action of the kind 
alleged here. Win, lose or draw, in the court of last resort—- 
the individual citizen is a heavy loser when the State abuses 
its legislative power and criminal processes. The only ade­
quate remedy is for the federal district court to stop the 
State at the start of its abuse of its governmental power.” 
State prosecution of those seeking to exercise their rights 
under Title II is obviously incompatible with effective en­
forcement of those rights.

The cases relied upon by Judge Clayton in denying in­
junctive relief are not controlling here. In Baines v. City 
of Danville, 4th Cir. No. 9080, decided August 10, 1964, the 
Court of Appeals for the Fourth Circuit decided (3-2), 
over a strong dissent by Chief Judge Sobeloff, that 42 
U. S. C. §1983 was not excepted from the ban of section 
2283, saying, “ statutory exceptions are not so easily found 
from a Congressional enactment of such vintage.” 9 In 
Poole v. Barnett, 336 F. 2d 267 (5th Cir. 1964) this Court 
approved the denial of injunctive relief to persons who 
claimed that their arrests for interference with divine wor­
ship violated federal law. The ground of affirmance was 
not on the basis of section 2283 or of comity, but on the 
basis that the arrests, even assuming the facts as alleged 
by the complainants, were not shown to be unlawful under 
existing federal precedents. Brown v. Rayfield, 320 F. 2d 
96 (5th Cir. 1963), cert. den. 375 U. S. 902 (1963) and 
Application of Wyckoff, 196 F. Supp. 515 (S. D. Miss.

9 Judge Clayton erroneously read Baines as holding “ that the 
Civil Rights Act of 1964 . . .  did not provide [an] exception to 
the anti-injunction statute” (Tr. 85). Baines dealt with 42 U. S. C. 
§ 1983, the Civil Rights Act of 1871.



10

1961), aff’d, 5th Cir. July 22, 1961, 6 Race Rel. L. Rep. 793 
are inapposite. Each turned on a construction of 28 U. S. C. 
§2254, and each involved doctrinal peculiarities of federal 
habeas corpus.

II.

This Court Has Jurisdiction to Review the Denial of 
Injunctive Relief Below.

The effective result of the denial of injunctive relief to 
appellants by the court below was to immediately send ap­
pellants to trial in the state court. Judge Clayton’s deci­
sion, although ordinarily nonappealable, determined the 
substantial rights of the appellants10 and tended to make 
their federal cause of action moot. Thus, under the practi­
cal test of appealability as enunciated by this Court in 
United States v. Wood, 295 F. 2d 772, 778 (5th Cir. 1961) 
and approved in Woods v. Wright, 334 F. 2d 369, 372-374 
(5th Cir. 1964), Judge Clayton’s decision is appealable.

10 The rationale of Judge Clayton’s decision would require the 
denial of all injunctive relief.



11

CONCLUSION

For the foregoing reasons, the decision of the District 
Court should be reversed, with directions to issue the 
injunction as prayed for, should it appear upon further 
hearing that appellants’ arrests contravened the Civil 
Rights Act of 1964.

Respectfully submitted,

R. J ess Brown

125% North Farish Street 
Jackson, Mississippi 39201

H enry  M. A ronson

507% North Farish Street 
Jackson, Mississippi 39201

J ack Greenberg
Melvyn Zaee

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



12

CERTIFICATE OF SERVICE

T his is to cebtify that oil November......., 1964 I served
a copy of the foregoing Brief For Appellants on each of 
the following attorneys for appellees by United States air­
mail, postage prepaid: Robert D. Patterson, Esq., L. T. 
Senter, Jr., Aberdeen, Mississippi; C. R. Bolton, Esq. Tu­
pelo, Mississippi; Claude A. Chamberlin, Esq., Aberdeen, 
Mississippi.

Attorney for Appellants



ĉ 8§̂ > 38