Thomie v. Dennard Reply Brief for Defendant-Appellees

    L A W  O F F IC E S

H U B E R T  A . A U L T M A N  

D A V ID  P . H U L B E R T  

R . A V O N  B U IC E  

R O Y  N . C O W A R T  

T O M  W . D A N IE L  

R O B E R T  L .  H A R T L E Y , J R .  

H U G H  L A W S O N , J R .

A U L TM A N , H U L B E R T , B U IC E  6c C O W A R T
912 MAIN STREET 

P E R R Y ,  G E O R G I A  3 1 0 6 9

December 2, 1970

P . o .  B O  
TELEPHONE

Mr. Edward W. Wadsworth# Clerk 
United States Court of Appeals 
Fifth Circuit
Room 408, 400 Royal Street 
New Orleans, La. 70130

RE: Oscar Thomie, et al. vs. B. E. Dennard, et al.Case No. 30595
Dear Mr. Wadsworth:

Please find enclosed the original and 24 copies of 
the Brief of Defendant-Appellees in the above styled 
case. If all does not look satisfactory, I would appre­ciate your comments.

Sincerely yours,

Tom V. Daniel
TWD/ab
Enclosures
CC: Mr. Charles Stephen Ralston

10 Columbus Circle, Suite 2030 
New York, New York 10019
Mr. Thomas M. Jackson 
655 New Street 
Macon, Georgia 31201



I N D E X
Page

STATEMENT OF FACTS....................................... 1

ARGUMENT ............................................... 4
A. The Court Below Did Not Err In Holding That

It Was Barred From Issuing A Declaratory Judg­
ment Regarding the Constitutionality of the 
City Ordinance.................   4

B. The Court Below Did Not Err in Not Holding the
Perry Parade Ordinance Unconstitutional On Its 
Face............................................. 8

C. The Court Did Not Err In Finding There Was No
Use of Violence By Law Enforcement Officers 
Against the Arrested Demonstrators.............. 14

CONCLUSION............................................ 15

CERTIFICATE OF SERVICE.................................. 19



TABLE OF CASES

Page
Amalgamated Food Employees vs. Logal Valley Plaza,Inc.391 U.S. 308, 88 S.Ct. 1601............................10
American Federation of Labor vs. Watson, 327 U.S. 582,66 S.Ct. 761, 90 L.Ed. 873 (1946)...................... 6
Carter vs. Gautier, 305 F.Supp. 1098 (M.D. Ga. 1969). . . .  5
Cox vs. The State of New Hampshire, 312 U.S. 569, 574,

85 L.Ed. 1049, 1052 (1941).............................. 10,11
Dombrowski vs. Pfister, 380 U.S. 491, 85 S.Ct. 1116 . . . .5,6,11,15
Douglas vs. Jeannette, 319 U.S. 157, 87 L.Ed. 1324(1943). . 5
Hague vs. C.I.O., 307 U.S. 496, 59 S.Ct. 954.............. 11
LeFore vs. Robinson, F.2nd. 5th Cir....................... 8,9
McLucas vs. Palmer, 38 Law Week 2665...................... 5
Poulos vs. The State of New Hampshire,345 U.S.395 ........ 11
Shuttlesworth vs. The City of Birmingham, 394 U.S.152,

89 S.Ct.935 ............................................12,13
Wells vs. Hand, 238 F.Supp. 799 ..........................6
Wells vs. Reynolds, 382 U.S. 39, 86 S.Ct.160.............. 6

Statute
Ga. Code §64-107 9



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 30595

OSCAR THOMIE, et al,
Plaintiffs-Appellants,
vs.

B. E. DENNARD, et al.,
Defendants-Appellees.

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

BRIEF FOR DEFENDANTS-APPELLEES.

STATEMENT OF FACTS

The Appellants in their statement of facts alleged as if 
undisputed that on a number of occasions the prisoners after 
being arrested were sprayed with some type chemical, both while 
on the buses used to haul them to the jail and while in the 
jail. Throughout the lengthy testimony none of the Appellants 
could specifically state what type chemical they were supposedly

-1-



sprayed with or specifically what officer or person sprayed 
them. Chief of Police Dennard in his testimony categorically 
denied the use of chemicals or any type of spray or chemical 
agent on any person or persons. (A, 316-318)* Likewise,
State Trooper John W. Wright, who was present during the 
arresting and transporting of the Appellants, denied using 
any chemical or seeing any chemical being used or having 
any chemical substance in his possession or knowing of 
anyone who had any chemical substances in their possession. 
(A, 359)* State Trooper John Hammock likewise testified that 
he did not use nor did he see anyone use any chemical agent 
or agents against any of the Appellants and likewise that 
he did not see any chemical agent or agents present that 
could have been used. (A, 363)* In the statement of facts, 
Appellants likewise set out as being uncontested that the 
prisoners were in some manner mistreated at the prison.
State Trooper John Hammock, who was one of the troopers who 
unloaded the buses and made a search of the male prisoners 
prior to incarceration, denied any mistreatment or wrongful 
treatment of any of the prisoners by himself or anyone 
present. (A, 365)*

Appellants' statement of facts does not set out that 
during the period of time when the arrests were being made

jV A-Refers to Appellants' Appendix A.

-2-



the merchants and stores in downtown Perry were being boy­
cotted and the boycott continued up until the time of the 
hearing without incident, with no arrests being made and 
no harassment of the persons doing the boycotting. Likewise, 
the statement of facts does not make reference to all the 
testimony given by the Appellants that they were not afraid 
to participate in the boycott or the marches and should they 
decide to march again each of them would march with or with­
out a permit and each had no fear of reprisals against them. 
(A 123, 161, 178, 187, 197)

Appellants' statement of facts would lead one to believe 
the testimony concerning the tense situation which existed 
between the races at the time of the parades was of little 
or no importance. However, the testimony of all persons 
clearly shows a very tense situation did in fact exist 
between different segments of both races during the time 
following the immediate integration of the schools along 
with the continuing boycotts. In fact the governing author­
ities recognize the situation as being so tense that they 
felt it necessary to ask for and did receive additional law 
enforcement support in the form of State Troopers.

-3-



A R G U M E N T

THE DECISION OF THE COURT BELOW DOES NOT CONFLICT 
WITH THE LAW OF THIS CIRCUIT AS ENUNCIATED IN 

LeFORE VS. ROBINSON

The statement of facts along with the evidence presented 
in this case before the District Court establish that there 
are great differences between this case and other cases which 
have been before this Court and that this case should be de­
cided on the law and facts as presented here and not as if it 
were just another in a series of cases as set out in Appellants 
argument.

A. The Court Below Did Not Err In Holding That It 
Was Barred From Issuing A Declaratory Judgment 
Regarding the Constitutionality of the City 
Ordinance.

The decision of the District Court does, not state that it 
could not, but rather that it should not grant the declaratory 
relief requested. Directing the court's attention to the decision 
of the Federal District Court (A, 427) , the Lower Court recog­
nizes that the declaratory judgment must be considered indepen­
dent of the propriety of the issuance of an injunction. Likewise 
the Court realizes that a declaratory judgment must not be 
granted just because one is requested but in fact must



be one felt necessary by the court in its discretion. The 
court basing its decision on McLucas vs. Palmer, 38 Law Week 
2665, quoting:

"This important rule of federalism cannot be cir­
cumvented by seeking a declaratory judgment in 
addition to or in lieu of an injunction. That_ 
has been squarely held with respect to the anti­
injunction statute, 28 U.S.C. §2283.*** A declara­
tory judgment would create the same opportunity 
as an injunction for delay and disruption of the 
state criminal proceeding and the same danger of 
having federal courts plunge themselves into the consideration of issues that may prove academic 
or at least may appear in a different light after 
trial."
This principle of federalism is discussed further 
in Carter vs. Gautier, 305 F.Supp. 1098 (M.D. Ga.
1969) (three judge court), and in Wells vs. Hand,
238 F.Supp. 779 (M.D.Ga. 1965) (Three judge court), 
affirmed 382 U.S. 39, 15 L.ed. 2d 32 (1965). And 
see Douglas vs. Jeannette, 319 U.S. 157, 87 L.ed.
1324 (1943)”
In the arguments before the lawer court, Dombrowski vs. 

Pfister, 380 U.S. 491, 85 S.Ct. 1116, was the case most 
heavily relied on by Appellants. However, the court in 
handing down the decision realizing the serious step which 
it was taking stated:

"Since that decision, however, (Ex parte Young, 209 
U.S. 123, 28 S. Ct. 441, 52 L.Ed. 714) considera­
tions of federalism have tempered the exercise of 
equitable power, for the court has recognized that 
federal interference with a State's goodfaith ad­
ministration of its criminal laws is peculiarly 
inconsistent with our federal framework. It is 
generally to be assumed that state courts ̂ and 
prosecutors will observe constitutional limitations 
as expounded by this court, and that the mere 
possibility of erroneous initial application of 
constitutional standards will usually not amount

-5-



to the irreparable injury necessary to justify a 
disruption of orderly state proceedings."
Because of the particular facts in Dombrowski the court 

recognized that if the federal court did not intervene, the 
plaintiffs would suffer great and irreparable injury. Second, 
the court recognized that should it not intervene there would 
be a "chilling effect" upon the exercise of the first amend­
ment rights. That the court intended strict limitations and 
interpretation should be placed on Dombrowski is clearly in­
dicated by the U. S. Supreme Court's per curiam affirmance 
after Dombrowski, of Welds vs. Hand, 238 F.Supp. 799, and 
Wells vs. Reynolds, 382 U.S. 39, 86 S.Ct. 160. In these 
cases the district court denied injunctive relief from 
criminal prosecution of a Georgia law. The district court 
in Wells vs. Hand, addressing itself to this question stated:

"There has been no showing that these plaintiffs 
will not be afforded adequate protection with 
respect to their contentions in the state court. 
As already noted, the alleged invalidity of a 
state law is not of itself grounds for equitable 
relief in a federal court. The controlling 
question is whether the plaintiffs have made a 
sufficient showing that the need for equitable 
relief by injunction is urgent in order to pre­
vent great and irreparable injury. American 
Federation of Labor vs. Watson, 327 U.S. 582, 66 
S.Ct. 761, 90 L.Ed. 873 (1946). The injunctive 
relief sought in this complaint against the en­
forcement of a state penal statute, even if that 
statute is contrary to the federal Constitution,

-6-



must be measured by the extraordinary circumstances 
rule and considerations of whether the danger of 
irreparable loss is both great and immediate. The 
mere fact that the plaintiffs may be convicted in 
the state court does not create such extraordinary 
circumstances as would justify an injunction and 
it has been frequently held that a federal court 
should not ordinarily interfere with state officers 
charged with the duty of prosecuting offenders 
against state laws."
The facts in the case before this court clearly indicate 

that there has been no "chilling effect" upon the exercise 
of the plaintiffs' first amendment rights. Plaintiffs have 
been issued permits several times for parades and have pic­
keted undisturbed from the time of the first arrest in ques­
tion to the present date.

The record also shows that all of the plaintiffs who 
are defendants in the Mayor's court are presently out on 
bond and the court has continued the prosecution of all the 
cases with the exception of the first ten who were tried and 
convicted so the attorney for the plaintiffs could take the 
proper steps to test the constitutionality of the ordinances
in question in the state courts.

Therefore, under Domb row ski the federal district court 
in this case should not intervene and issue an injunction in 
the criminal prosecutions of the persons charged with viola 
ting the municipal ordinances of Perry.

-7-



B. The Court Below Did Not Err in Not Holding The 
Perry Parade Ordinance Unconstitutional On Its 
Face.

The Appellants in the Lower Court argued that the 
ordinance was unconstitutional on its face in that it was 
overbroad and vague and, therefore, unconstitutional. It 
is only since the appeal that the que.stion has been raised 
concerning the constitutionality of the ordinance for lack 
of a prompt commission initiated judicial review. The trial 
court did not pass on the point that the Appellants have 
presently brought before this court., T.herefore the constitu­
tional question raised in the Lower Court is not presently 
for review and the question that the Appellants have brought 
before this court on constitutionality being first raised on 
appeal should not be considered.

Appeallants rely heavily on the recent case of LeFore 
vs. Robinson, F.2nd. 5th Cir., Nov. 12, 1970, attacking the 
ordinance in question as failing to provide for immediate 
court review of a denial of the permit. LeFore is distin­
guished in that the District Court did not conduct an 
evidentiary hearing, whereas in this case the District Court 
held a very lenghthy two-day evidentiary hearing in which 
Appellants and Appellees were given an opportunity to present 
all the evidence they so desired.

-8-



In LeFore there was no provision for immediate judicial
review.

In this case immediate review is provided for by state 
statute.

Ga.Code §64-107 - Upon the presentation of an 
application for mandamus, if the mandamus nisi 
shall be granted, the judge shall cause the 
same to be returned for trial not less than 10 
nor more than 30 days from said date; the de­
fendant to be served at least five days before 
the time fixed for such hearing. If the answer 
to said mandamus nisi shall involve no issue 
of fact, the same shall be heard and determined 
in vacation, unless court shall then be in 
session, when it may be determined in the superior 
court. (Acts 1882-3, p.103)
This statute clearly provides for a speedy hearing by 

the judiciary should the decision of the City Council ne­
cessitate review. There is no need for the ordinance to 
contain a section establishing judicial review when such a 
law is in existence and readily available to Appellants.

Therefore, both the facts and the law in the LeFore 
case are totally and completely different from the facts of 
the ]aw that exist in this case and have no bearing whatsoever 
on this case.

Notwithstanding the above argument and without any con­
cessions, Appellees feel that the constitutionality of the 
ordinance on the original ground raised before the District 
Court should be discussed.

-9-



The courts throughout have recognized that municipalities
are entitled, within limits of equal enforcement, to establish
a means of control over its public highways and the traffic
thereon and the people using the same.

"Civil liberties, as guaranteed by the Constitu­
tion, imply the existence of an organized society 
maintaining public order without which liberty 
itself would be lost in the excesses of unres­
trained abuses. The authority of a municipality 
to impose regulations in order to assure the safety 
and convenience of the people in the use of public 
highways has never been regarded as inconsistent 
with civil liberties but rather as one of the means 
of safeguarding the good order upon which they ul­
timately depend. The control of travel on the 
streets of cities is the most familiar illustration 
of this recognition of social need. Where a 
restriction of the use of highways in that relation 
is designed to promote the public convenience in 
the interest of all, it cannot be disregarded by 
the attempted exercise of some civil right which 
in other circumstances would be entitled to pro­
tection. One would not be justified in ignoring 
the familiar red traffic light because he thought 
it his religious duty to disobey the municipal 
command or sought by that means to direct public 
attention to an announcement of his opinions. As 
regulation of the use of the streets for parades 
and processions is a traditional exercise of 
control by local government, the question in a 
particular case is whether that control is 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." (emphasis added) Cox 
vs. New Hampshire, 312 U.S. 569, 574, 85 L.Ed.
1049, 1052 (1941).
The Supreme Court in a most recent case, Amalgamated Food 

Employees vs. Logal Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct.

-10-



1601, recognized the right of a municipality to control parades 
and picketing stating:

"Even where municipal or state property is open 
to the public generally, the exercise of first 
amendment rights may be regulated so as to pre­
vent interference with the use to which the property is ordinarily put by the state. . . . "
"In addition, the exercise of first amendment 
rights may be regulated where such exercise will 
unduly interfere with the normal use of the pub­
lic property by others of the public with an 
equal right of access to it. Thus, it has been 
held that persons desiring to parade along city 
streets may be required to secure a permit in 
order that municipal authorities be able to 
limit the amount of interference with use of 
sidewalks by other members of the public by 
regulating the time, place and manner of the 
parade. Cox vs. The State of New Hampshire,312 
U.S. 569: Poulos vs. The State of New Hampshire,
345 U.S. 395."
The U. S. Supreme Court stating:
" . . .  the privilege of a citizen of the United 
States to use the streets and parks for communi­
cation of views on national questions itiay be 
regulated in the interest of all: it is not
absolute but relative and must be exercised in 
subordination to the general comfort and conven­
ience and in consonance with the peace and good 
order; but it must not in the guise of regula­
tion be abridged or denied." Hague vs. C.I.0.,
307 U.S. 496, 59 S.Ct. 954.

again recognized the right of a municipality to control its 
streets and sidewalks for the general comfort and convenience 
of all the people so long as such control was not being used 
as a guise to prohibit the enjoyment of first amendment rights.

-11-



Plaintiffs attack the ordinances involved as being over­
broad and vague to such an extent as to render said ordinances 
unconstitutional. Shuttlesworth vs. The City of Birmingham,
394 U.S. 152, 89 S.Ct. 935, must be distinguished from the case 
at hand in that the discretion to issue or not issue a permit 
was vested not with the City Council and Mayor as in the pre­
sent case, but was delegated to some lesser officials of the 
City of Birmingham. Secondly, the city officials of Birmingham 
had stated openly that they did not intend to allow any parades 
or demonstrations. The court took judicial notice of the 
evidence offered in a prior case since both cases arose out 
of the same question of facts and stated the following:

"Uncontradicted testimony was offered in Walker 
to show that over a week before the Good Friday 
march petitioner Shuttlesworth sent a represen­
tative to apply for a parade permit. She went 
to the City Hall and asked "to see the person 
or persons in charge to issue permits, permits 
for parading, picketing, and demonstrating."
She was directed to Commissioner Connor, who 
denied her request in no uncertain terms. "He 
said, 'No, you will not get a permit in 
Birmingham, Alabama to picket. I will picket 
you over to the City Jail,' and he repeated 
that twice." 388 U.S., at 317, N. 9, 325,335, 
339, 87 S.Ct., at 1830, 1834, 1839, 1841.
Two days later petitioner Shuttlesworth himself 
sent a telegram to Commissioner Connor request­
ing, on behalf of his organization, a permit to 
picket "against the injustices of segregation 
and discrimination." His request specified the

-12-



sidewalks where the picketing would take place, 
and stated that "the normal rules of picketing" 
would be obeyed. In reply, the Commissioner 
sent a wire stating that permits were the re­
sponsibility of the entire Commission rather 
than of a single Commissioner, and closing with 
the blunt admonition: "I insist that you and
your people do not start any picketing on the 
streets in Birmingham, Alabama." Id., at 318,
N. 10, 325, 335-336, 339-340, 87 S.Ct., at 1830, 
1834, 1839-1840, 1841-1842.
These "surrounding relevant circumstances" make 
it indisputably clear, we think, that in April 
of 1963, at least with respect to this petitioner 
and his organization, the city authorities thought 
the ordinance meant exactly what it said. The 
petitioner was clearly given to understand that 
under no circumstances would he and his group be 
permitted to demonstrate in Birmingham, not that 
a demonstration would be approved if a time and 
place were selected that would minimize traffic 
problems. There is no indication whatever that 
the authorities considered themselves obligated 
as the Alabama Supreme Court more than four years 
later said that they were— to issue a permit 
"if after an investigation [they] found that the 
convenience of the public in the use of the 
streets or sidewalks would not thereby be unduly 
disturbed." Shuttlesworth vs. The City of 
Birmingham, Alabama, 89 S.Ct. 935.

Comparing Shuttlesworth with the present case, it will 
be noted that the right to issue a permit rests solely with 
the Mayor and City Council of Perry who are likewise the body 
that enacts the ordinances and, therefore, any detailed guide­
lines that they might enact, could likewise be changed at any 
time. The requirement for the issuance of a permit that a 
request be made at least two weeks prior to the intended date has

-13-



on a number of occasions been waived by the Mayor and City 
Council allowing the plaintiffs and other members of the 
black community to have a permit to parade per their request. 
There is no evidence that the Mayor and City Council refused 
to issue a permit arbitrarily. There is no evidence to show 
that the Mayor and City Council refused to issue plaintiffs 
a permit in order to deny them any of their constitutional 
rights.

C. The Court Did Not Err In Finding There Was No 
Use of Violence By Law Enforcement Officers 
Against the Arrested Demonstrators.

It is assumed by the Appellants that violence was used 
by the law enforcement officers against the arrested demon­
strators and that the trial court ignored the use of said 
violence. However, the facts are that the lower court heard 
all the testimony of both the Appellants and Appellees and 
the assumption must in fact be that the lower court found as 
a matter of fact that there was no use of violence by the law 
enforcement officers rather than the assumption the Appellants 
would have the court believe it made no finding whatsoever.

It was certainly in the District Court's sound discretion 
after hearing the facts as presented by both sides to make a 
finding of fact and I believe that it goes without saying that 
had the District Court found the use of violence it would not 
have ignored such but would have addressed itself to the same.

-14-



The testimony was certainly contradictory as to whether 
or not any violence by the police officers occurred and it 
was clearly in the court's discretion as the finder of fact 
to make such a decision.

CONCLUSION

The plaintiffs in their complaint alleged they had no 
plain, adequate or complete remedy at law to redress the 
violations of their constitutional rights other than a suit 
for injunctive relief and declaratory judgment in the federal 
district court. The plaintiffs failed to introduce one 
scintilla of evidence in support of this claim. The evidence 
showed they have a complete and adequate remedy within the 
State Courts. The municipal court has even agreed to con­
tinue the prosecution of all the cases with the exception of 
the first ten until such time as the plaintiffs have been 
able to test the constitutional question raised. The require­
ments set down in Dombrowski allowing the federal court to 
intervene and enjoin criminal prosecutions are not met by 
the facts in the present case. Plaintiffs will suffer no 
injury by the refusal of the federal district court to inter­
vene in the present case; therefore, no irreparable injury. 
Without exception, plaintiffs' witnesses testified they would

-15-



have no hesitation whatsoever in requesting a permit from 
the city to parade. Clearly from this testimony there has 
been no "chilling effect" upon the plaintiffs' first amend­
ment rights. Likewise, there is no evidence to indicate 
that any remedy other than intervention by the federal court 
would be unavailing to the plaintiffs. It cannot be assumed 
that the state courts would fail to hold the ordinance un­
constitutional if the same were in fact unconstitutional.
The valid presumption is that the outcome in the state court 
would be the same as the outcome in the federal courts.

The evidence is clear that the Mayor and City Council 
at no time delegated their authority to anyone to decide 
when and when not to issue permits. Likewise, the discretion 
exercised by the Mayor and City Council under the evidence 
shows that at no time was an arbitrary decision made but 
that each decision on whether to issue a permit or not and 
what route to be allowed was based on a sound, logical and 
reasonable basis. Plaintiffs themselves testified that the 
parades were in the size of 600 to 1500 persons and they 
expected the parades to continue in that size. The testimony 
of one plaintiffs' witness was that a parade of that size 
would take approximately 2 hours to complete. Under such 
circumstances, there can be no doubt that the city has not

-16-



only the right but the duty to its other citizens to exercise 
control over its streets and sidewalks. Without a doubt 
every person has an equal right to use the streets and side­
walks and likewise every person has an equal responsibility 
not to block or interfere with the streets and sidewalks in 
such a manner as to deprive other persons of their right to 
use the sidewalks.

The first amendment rights that plaintiffs assert are 
strictly individual rights. When the individuals become 
groups or mobs, certainly the first amendment rights must 
give way in some degree to the rights of other individuals 
who are protected by the municipality. Clearly if a group 
or mob of individuals numbering in the hundreds obstructs 
the sidewalks and streets in such a manner that other indi­
viduals, regardless of their color, are thereby prevented 
from using the streets and sidewalks then the group would 
have encroached upon the individual the same as the plaintiffs 
contend the municipality has encroached on their rights.

The testimony before the court, without contradiction, 
proves that there was a great deal of tension and hostile 
feelings between the two racial groups in the City of Perry 
and only through restraint on both sides, coupled with the 
excellent job done by the local law enforcement officers, was 
violence abated.

-17-



In conclusion, Defendants-Appellees urge that this
appeal be dismissed.

Respectfully submitted,

Tom W. Daniel

OF COUNSEL:
Aultman, Hulbert, Buice & Cowart 
Attorneys at Law 
912 Main Street 
Perry, Georgia 31069

-18-



CERTIFICATE OF SERVICE

ihj.s is to certify that I have this day served counsel 
for tne opposing party in the foregoing matter with this 
pleading by depositing in the United States Mail a copy of 
same in a properly addressed envelope with adequate postage 
thereon.

T^ls ^  daY °f December, 1970.

Tom W. Daniel
Attorney for Defendant-Appellees