Clark v. Boynton Brief for Appellees

    I n the

United i>taten (Emtrt of Appeals
F oe the F ifth Circuit 

No. 23,157

J ames G. Clark, J r.,
Sheriff of Dallas County, Alabama,

Appellant,

A melia P. B oynton, et al.,
Appellees.

A P P E A L  FR O M  T H E  U N IT E D  STA TES D IST R IC T  COU RT 

FO R  T H E  S O U T H E R N  D IS T R IC T  O F ALABAMA

BRIEF FOR APPELLEES

N orman C. A maker 
J ack Greenberg 
Charles H . J ones, J r .
Charles S tephen R alston 

10 Columbus Circle 
New York, New York 10019

P eter A. H all
1630 Fourth Avenue North 
Birmingham, Alabama

Attorneys for Appellees



I N D E X
PAGE

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

A rgument—

I. The Order of the District Court Was Sufficiently 
Specific to Support the Contempt Citation ..... 11

II. The District Court Had the Power to Punish 
Appellant for Contempt of Court Without Sub­
mitting the Issues to a Jury ...............— ....... 13
A. There is no constitutional right to trial by

jury in criminal contempt cases ........... ...... 14
B. The Federal statutes giving the right to trial

by jury in criminal contempt cases are not 
applicable to the present case ..................... 15

Conclusion ..................................................................................  20

Table of Cases

Alabama v. Allen, S.D. Ala., C.A. No. 3385-64, 10 R.
Eel. L.Rep. 234 (1965) ....... ........... ...... ................... 2

Alabama v. Boynton, S.D. Ala. C.A. No. 3560-65 (1965) 2

Bevel v. Mallory, S.D. Ala., C.A. No. 3714-65 (1965) .... 2
Brown v. United States, 359 U.S. 41 (1959) ..... ........ 14

Cooper v. Alabama, 353 F.2d 729 (5th Cir. 1965) .... . 2

Dallas County v. Student Non-Violent Coordinating 
Committee, S.D. Ala., C.A. No. 3388-64, 10 R.Rel. 
L.Rep. 234 (1965) 2



11

PAGE

King v. Baker, S.D. Ala., C.A. No. 3572-65 (1965) ...... 2

Lewis v. Clark, S.D. Ala., C.A. No. 3386-64 (1964) __  2

McCann v. New York Stock Exchange, 80 F.2d 211
(2nd Cir. 1935) ........................... ....................... ......  13

Moore v. United States, 150 F.2d 323 (10th Cir. 1945) 14

Rapp v. United States, 146 F.2d 548 (9th Cir. 1944) .... 14

United States v. Atkins, 210 F.Supp. 441, rev’d, 323 
F.2d 733 (5th Cir. 1963) see also, 10 R.Rel. L.Rep.
209 (1965) ........... .................. ................ .................. 2

United States v. Barnett, 376 U.S. 681 (1964) ...... 14,18-19
United States v. Clark, 10 R.Rel. L.Rep. 236 (S.D.

Ala., C.A. No. 3438-64, 1965) ___________ ......2, 3, 4, 8
United States v. Dallas Comity, S.D. Ala., C.A. No.

3064-63 (1963) .......................... ................. .............. . 2
United States v. McLeod, C.A. No. 3188-63 (1963) ....  2

Williams v. Wallace, 240 F.Supp. 100 (M.D. Ala. 
1965) .......................... ................................................. 2, 3

Federal Statutes-.
18 U.S.C. §401 ....... ......
18 U.S.C. §402 ............
18 U.S.C. §3691 .............
28 U.S.C. §1343(3) ........
28 U.S.C. §1343(4) ..... .
42 U.S.C. §1971 (a) ___
42 U.S.C. §1971(b) .......
42 U.S.C. §1971 (c) ........
42 U.S.C. §§1975-1975(e) 
42 U.S.C. §1981 ..............

.............. ..15,18

... ..............  19

................   19

............... ...3,15

..................3,15

...4,16,17,18,19 

...4,16,17,18,19 
15,16,17,18,19
.............   15
......... ........ 3



PAGE

iii

42 U.S.C. §1983 .......................... ....................... 3,15,17,19
42 U.S.C. §1995 .................... ......................11,15,16,18,19
Civil Eights Act of 1957, Public Law 85-315 (71 Stat.

638) ...... ■............... ...... ....................................... .15,16,19
Fed. E. Civ. Proc., Rules 18, 20, 23 .......................... . 3
Fed. E. Civ. Proc., Rule 65 ....................................... . 12

Other Authorities:
7 Moore, Fed. Practice, 1636-40 ........... .......... .......... 12
103 Cong. Rec. 8471, 8472-73 (6/6/57) (85th Cong. 1st

Sess.) (Remarks of Sen. Ervin) ....... ....................  17
103 Cong. Rec. 8468 (6/6/57) (85th Cong., 1st Sess.)

(Remarks of Sen. Robertson) ......................... ........ 17
103 Cong. Rec. 9187 (6/14/57) (85th Cong., 1st Sess.) 

(Remarks of Rept. Keeney) ................... ................16-17



I s r  t h e

Intfrft Btdtm (Eourt at A p p a ls
F ob the F ieth Cibcuit 

No. 23,157

J ames G. Clark, J r.,
Sheriff of Dallas Comity, Alabama,

Appellant,
—v.—

A melia P. B oynton, et al.,
Appellees.

A P P E A L  PR O M  T H E  U N IT E D  STA TES D IS T R IC T  COU RT 

FO R T H E  S O U T H E R N  D IS T R IC T  OF ALABAMA

BRIEF FOR APPELLEES

Statement of the Case

Appellees make the following additions to the statement 
of the case by appellant, directed to those particulars 
that the appellees believe should be brought to the atten­
tion of the court.

The present case is but one of a number arising out 
of the occurrences in Selma, Alabama, from 1963 through 
1965. During this period efforts were made by Negro 
citizens of Selma to register and vote and to achieve 
equality of political and social rights with white residents. 
Their efforts were aided by other citizens concerned with 
the equal rights of citizens and were supported by litiga-



2

tion brought by themselves and by the United States 
Government.1 It was demonstrated in much of this litiga­
tion that the opposition to the achievement of equal voting- 
rights by Negro citizens was led by the appellant, James 
G. Clark, Jr., the sheriff of Dallas County. See the findings 
of fact in United States v. Clark, 10 R.Rel, L.Rep. 236 
(S.D. Ala., C.A. No. 3438-64,1965), and Williams v. Wallace, 
240 F.Supp. 100, 103-05 (M.D. Ala. 1965).2

1 Affirmative suits brought by private citizens in addition to the present 
one included: Lewis v. Clark, S.D. Ala., C.A. No. 3386-64 (1964); Wil­
liams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965) ; King v. Baker, 
S.D. Ala., C.A. No. 3572-65 (1965); Bevel v. Mallory, S.D. Ala., C.A. 
No. 3714-65.

In  addition, various criminal prosecutions and civil injunctions brought 
by Dallas County and Selma officials were removed to the Federal Court: 
Alabama v. Allen, S.D. Ala., C.A. No. 3385-64, 10 R.Rel. L.Rep. 234 
(1965); Alabama v. Boynton, S.D. Ala., C.A. No. 3560-65; Cooper v. 
Alabama, 353 F.2d 729 (5th Cir. 1965); Dallas County v. Student Non- 
Violent Coordinating Committee, S.D. Ala., C.A. No. 3388-64, 10 R.Rel. 
L.Rep. 234 (1965).

The following suits were filed by the Federal Government: United 
States v. Atkins, 210 F. Supp. 441, rev’d, 323 F.2d 733 (5th Cir. 1963), 
see also, 10 R.Rel. L.Rep. 209 (1965); United States v. Clark, S.D. Ala., 
C.A. No. 3438-64, 10 R.Rel. L.Rep. 236 (1965); United States v. Dallas 
County, S.D. Ala., C.A. No. 3064-63; United States v. McLeod, C.A. 
No. 3188-63 (1963).

2 In his findings of fact, Judge Johnson, of the Middle District of 
Alabama, stated:

The evidence in this case reflects that, particularly as to Selma, 
Dallas County, Alabama, an almost continuous pattern of conduct 
has existed on the part of defendant Sheriff Clark, his deputies, and 
his auxiliary deputies known as “possemen” of harassment, intimida­
tion, coercion, threatening conduct, and, sometimes, brutal mistreat­
ment toward these plaintiffs and other members of their class who 
were engaged in their demonstrations for the purpose of encouraging 
Negroes to attempt to register to vote and to protest discriminatory 
voter registration practices in Alabama. This harassment, intimida­
tion and brutal treatment has ranged from mass arrests without just 
cause to forced marches for several miles into the countryside, with 
the sheriff’s deputies and members of his posse herding the Negro 
demonstrators at a rapid pace through the use of electrical shocking 
devices (designed for use on cattle) and night sticks to prod them 
along. 240 F. Supp. at 104.



3

The present action was begun by appellee Amelia P. 
Boynton, a Selma Negro businesswoman and official of the 
Dallas County Voters’ League, a local organization of 
Selma residents which spearheaded the drive to achieve 
voting and other civil rights for Negroes in Dallas County,3 
and others because of actions taken by appellant designed 
to intimidate and harass Negro citizens seeking to register 
to vote (E. 1-7). The action was brought on behalf of 
three classes of plaintiffs.4 The first class consisted of, 
“Negro citizens of the United States who are residents of 
the State of Alabama, Dallas County, who are entitled to 
vote and who have been arrested, . . . harassed, [and] 
intimidated, . . .  in their attempt to register to vote” 
(E. 2). The second class was Negro citizens of the United 
States and residents of Dallas County who sought to vouch 
for persons seeking to register to vote in accordance with 
the then prevailing Alabama law, and who had been simi­
larly harassed (E. 2).

The third class consisted of, “Citizens of the United 
States who have been similarly arrested, prosecuted, 
harassed, intimidated, threatened and coerced in their 
attempt to exercise their rights of freedom of speech and 
assembly designed to persuade voting registrars in Dallas 
County, Alabama to comply with the Constitution and laws 
of the United States guaranteeing the right to vote to all 
citizens” (E. 2-3).

Jurisdiction was based on 28 U.S.C. §§1343(3) and (4). 
The basic cause of action asserted was that established by 
42 U.S.C. §§1981 and 1983, since appellees were seeking 
the redress of the deprivation of the rights to register to

3 See findings of fact in United States v. Clark, 10 R.Rel. L.Rep. 236, 
237, and Williams v. Wallace, 240 F. Supp. 100, 103.

4 The joinder of claims and parties and the bringing of the suit as a 
class action were authorized under Fed. R. Civ. Proe., Rules 18, 20, and 23.



4

vote and to vote as guaranteed by the Fifteenth Amend­
ment to the Constitution and 42 U.S.C. §§1971(a) and (b), 
and the right to freedom of speech and assembly as guar­
anteed by the First and Fourteenth Amendments to the 
Constitution of the United States. Injunctive relief was 
sought on behalf of the three classes of plaintiffs against 
appellant Clark and other named defendants to enjoin 
them from continuing their harassment and intimidation 
of the plaintiffs in the exercise of the rights urged respec­
tively by the members of the three classes.

The complaint was filed on Januray 22, 1965 (R. 36), 
together with motions for a temporary restraining order 
(R. 34) and for preliminary injunction (R. 44). Both mo­
tions requested that defendants be restrained from further 
interfering with and harassing the plaintiffs in the exercise 
of their constitutionally protected rights (R. 35, 44). An 
affidavit in support of the allegations of the complaint and 
in support of the two motions were filed with the complaint 
(R. 7-11). The day before the suit was filed, telegrams 
were sent to each of the named defendants notifying them 
that the attorneys for the plaintiffs would appear before 
the District Court to seek a temporary restraining order 
(R. 31-34). Attorneys for the defendants appeared at that 
hearing and submitted counter-affidavits to the court (R. 
37).

On the morning of January 23, 1965, the District Judge 
issued his order, designated a temporary restraining order, 
making findings of fact based on the affidavits and counter­
affidavits submitted to him and also on the testimony 
heard by him in a prior hearing in United States v. Jam.es 
G. Clark, Jr., supra (R. 37). Testimony had been pre­
sented in that case for more than six days, ending on 
December 22, 1964, and concerned many of the same issues 
raised in the present case (Ibid.). The Judge also relied on



5

“matters of public record and common knowledge” (Ibid.). 
On the basis of its findings, the Court issued its order 
protecting all three classes of plaintiffs; as to the third 
class in particular the Court ordered that:

Those interested in encouraging others to register 
to vote have the right peaceably to assemble outside 
the court house, but shall not do so in such a way as 
to interfere with lawful business expected to be trans­
acted in the court house. Such persons also have a right 
to peaceably assemble without molestation, and will 
be permitted to do so; but violence, either by those 
so assembled or officers entitled to surveillance over 
such assemblages, or on the part of outsiders, will not 
be tolerated at such assemblage.

Not only are such assemblages entitled to occur, 
but those so assembled are entitled to have lawful 
protection in such assemblage.

This order in no wise is intended to interfere with 
the legal enforcement of the laws of the State of Ala­
bama, Dallas County, or the City of Selma. But under 
the guise of enforcement there shall be no intimidation, 
harassment or the like, of the citizens of Dallas County 
legitimately attempting to register to vote, nor of 
those legally attempting to aid others in registering 
to vote or encouraging them to register to vote (ft. 
40-41).

Subsequently, on January 27, 1965, the plaintiffs moved 
for additional relief and for an order to show cause against 
appellant because of further activities of the appellant in 
alleged violation of the court’s order (It. 46-58). Again, 
this motion was supported by sworn affidavits (ft. 58-76). 
On January 30, 1965, the District Court amended its Order 
of January 23, 1965, to clarify the question of how many



6

persons could remain in line for registration (R. 97). That 
order again protected the rights of persons who wished 
to encourage others to register to vote to assemble peace­
ably at the courthouse {ibid.). Subsequently, the defend­
ants moved to dismiss the complaint (R. 99-104).

On February 11, 1965, plaintiffs filed a motion supple­
mental to their motion for additional relief and order to 
show cause (R. 104-107). This motion alleged the events 
of February 10, 1965, which formed the basis of the con­
tempt judgment herein appealed. Briefly, the allegations 
were that on February 10, a group of Negro children and 
teenagers peacefully assembled before the Dallas County 
Courthouse carrying signs urging full and equal voting 
rights for Negroes (R. 105). Appellant Clark, exercising 
his authority as sheriff and with a group of 15 to 20 of his 
deputies, surrounded the teenagers and led them through 
the streets of Selma {ibid.). They forced the demonstrators 
to take a march of nearly 2% miles out into the country at 
a fast pace, walking and running (R. 104-105). It was 
alleged that:

The action of the sheriff in this [sic] arresting, harass­
ing and intimidating members of the class protected 
by the order of this court, places him and his subordi­
nates in willful and open contempt of this court’s in­
junctive order of January 23, 1965, as modified on 
January 30, 1965 (R. 106).

The court was asked to find appellant in contempt of its 
order and punish him by fine or imprisonment, or both 
(R. 107).

The motion was supported by sworn affidavits (R. 107- 
112). The appellant opposed the motion on the grounds 
that its allegations were untrue and that the office of the 
defendant as sheriff of Dallas County insulated him from



7

interference by the federal courts in the performance of 
his duty (R. 113). On March 25, 1965, the District Court, 
in response to the motion for further relief, ordered:

That the defendant, James G. Clark, Jr., Sheriff of 
Dallas County, Alabama, immediately appear before 
this court on April 26, 1965, at 9:30 o’clock a.m., in 
Selma, Alabama, and show cause why he should not 
be held in contempt of this court and punished there­
fore by fine or imprisonment, or both (E. 115).

On April 2, 1965, defendants petitioned the court, on the 
basis of allegations concerning allegedly improper con­
duct of plaintiffs and members of their classes, to:

issue a supplemental decree or order amending the 
previous temporary restraining order and amendments 
thereto by setting forth specifically what [plaintiffs] 
may not do in order that the law enforcement officials 
of the City of Selma and Dallas County, Alabama, 
can have better knowledge of what they are charged 
with enforcing and what acts of the Complainants 
they are enjoined from enforcing (R. 121).

Further amendments to the order of January 23, as 
amended on January 30, were asked for by the defendants 
(R. 122). On the same day, April 2, 1965, in response to 
this petition, the District Court issued an order further 
amending its order of January 23, 1965, as amended Janu­
ary 30,1965, restricting the areas in Selma in which demon­
strations could take place (R. 127-29).

A hearing was held on the order to show cause on April 
26 and 27, and on May 17 and 18, 1965 (R. 153). Extensive 
testimony was introduced as to the various incidents cited 
in the motions for further relief and for order to show 
cause which plaintiffs claimed constituted contempt of the



court’s order, but the court based its contempt finding only 
on the incident of February 10, 1966 (R. 134-35).

The primary testimony on this incident was given by two 
of the Negro students who participated in the demonstra­
tions on that day. Miss Sallie Bett Rodgers testified that 
she went to the Dallas County Courthouse in Selma at 
about 2 o’clock in the afternoon “to encourage my parents 
and other people that were residents of Dallas County, to 
encourage them to register to vote” (R. 155). She testi­
fied that approximately 200 persons stayed in front of the 
courthouse for about 45 minutes (R. 155-56). A number of 
people carried signs with such slogans as “Let my father 
vote” (R. 155). At the end of the 45 minutes, Miss Rodgers 
heard a voice giving an order of “Left Face” (R. 156). The 
line then began to move down the street and children in 
the group began to run {ibid.). During the run, which she 
estimated as six or eight miles (R. 157), she saw one officer 
beat a boy with a stick {ibid.). She testified that the age of 
the boy was about 12 {ibid.). The group was made to run 
out of the City of Selma into the country and Miss Rodgers 
observed persons in the march fall out of line and lay beside 
the road (R. 158). The officers conducting the inarch 
traveled in automobiles and would change shifts so that 
some would walk while others would ride (R. 159). Some 
of the officers cursed at the marchers and cattle prods were 
used to make the children continue moving {ibid.).5 Miss 
Rodgers testified that the march ended when the students 
ran into some houses a number of miles outside of Selma 
(R. 166).

The second student to testify was Miss Letha Mae Stover. 
She testified that she assembled at the courthouse with a

6 Cf. the court’s findings in United States v. Clark, 10 R.R.L.R. 236, 238: 
“The four Negro students were arrested, and electric cattle prods were 
used on at least one, and possibly two, of them by Sheriff Clark.”



9

sign stating “One man, one vote” (R. 171), and that while 
on the forced march she was cattle prodded by one of the 
officers about three times (R. 173-75). Finally she became 
exhausted and dropped off beside the road (R. 175). One 
of the officers punched her in the back with a billy club and 
told her to get up and go on {ibid.). She replied that “he 
would have to kill me, because I could not” {ibid.). She 
stayed by the side of the road until a car came along and 
took her back to Selma {ibid.).

Additional testimony about this incident was supplied by 
Mr. Joseph M. Avignone, a special agent with the Federal 
Bureau of Investigation. Mr. Avignone testified that he 
observed appellant Clark at the courthouse on the occasion 
of the student demonstration (R. 182-83). He also saw and 
recognized sheriff’s deputies and members of the sheriff’s 
posse (R. 185). During the forced march itself, Mr. Avig­
none was in an automobile following and observing it 
(R. 183, 185). He saw appellant Clark in an automobile 
going along with the march and observed sheriff’s officers 
using cattle prods on marchers (R. 185-86). He testified 
that the length of the march was approximately two to two 
and one-half miles out into the country (R. 186). Mr. 
Avignone heard over his car radio two statements on the 
sheriff’s office radio band, one saying that the children could 
leave the line anytime they wanted to and the other tell­
ing the deputies “not to use the prod so much” (R. 187).

In response to the testimony of these three witnesses the 
attorney for appellant testified that the sheriff had asked 
him whether it would be in violation of the judge’s injunc­
tion to march the teenagers out on the edge of the town 
and turn them loose (R. 192). He advised the appellant 
that he thought it would not be in violation of the injunc­
tion and it would be a good idea and “could relieve some 
of their steam” (R. 193). The attorney was asked on cross-



10

examination whether the appellant asked him if it would 
be a violation of the injunction to use cattle prods on the 
children during the march. He testified that cattle prods 
were not mentioned and that he had given no advice as to 
that (R. 194).

On September 2, 1965, the District Judge issued his find­
ings of fact and judgment on the contempt citation (R. 130). 
He found that: (1) the plaintiffs stated that their purpose 
in being at the courthouse was either to register to vote 
or to encourage others to register to vote, and that these 
purposes were protected by the Court’s order (R. 133-134); 
(2) on February 10, 1965, the teenagers and children as­
sembled at the courthouse with signs urging equal voting 
rights for Negroes (ibid.); (3) the demonstrators were not 
disorderly (ibid.); (4) the appellant took the group on a 
forced march during which they were forced to run or walk 
at a brisk pace for over four miles (ibid.); (5) during the 
march members of the group were struck with cattle prods 
(ibid.). The court found that this action in:

harassing, and intimidating members of the class pro­
tected by the January 23, 1965, order of the court 
places him in direct contempt of the following portion 
of that order:

“This order in nowise is intended to interfere with 
the legal enforcement of the laws of the State of 
Alabama, Dallas County, or the City of Selma. 
But under the guise of enforcement there shall be 
no intimidation, harassment or the like, of the citi­
zens of Dallas County legitimately attempting to 
register to vote, nor of those legally attempting to 
aid others in registering to vote or encouraging 
them to register to vote.” (Emphasis added by the 
Court) (R. 134-35).



11

The appellant was ordered to pay a fine in the amount of 
$1,500 (R. 135).

Subsequently, on September 10,1965, the appellant moved 
for a trial de novo and for a jury trial on the basis of 42 
U.S.C. §1995 (R. 136-39). These motions were denied on 
September 15, 1965 (R. 144), and notice of appeal was sub­
sequently filed (R. 145).

A R G U M E N T

I.

T h e  O rd e r  o f  th e  D is tr ic t  C o u rt W as Suffic ien tly  
S pecific  to  S u p p o r t  th e  C o n te m p t C ita tion .

One of the errors specified by the appellant was that 
“The Court’s Order of January 23, 1965, and the amend­
ments thereto were couched in such loose language that 
they were insufficient to support a contempt proceedings 
(sic) against this Defendant-Appellant James Gf. Clark, 
Jr.” (R. 146). The record, however, does not support this 
contention. The order of the District Court clearly stated 
that the members of the plaintiffs’ class “have a right to 
peaceably assemble without molestation, and will be per­
mitted to do so” (R. 41). Also it was stated that:

[U] rider the guise of enforcement there shall he no 
intimidation, harassment or the like, of the citizens of 
Dallas County . . . nor of those legally attempting to 
aid others in registering to vote or encouraging them 
to register to vote (ibid.).

Thus, appellant was enjoined from molesting, harassing or 
intimidating members of the class of persons encouraging 
others to register to vote. Clearly, the actions of the ap-



12

pellant in taking the school children on the forced march 
could have been found, as the District Court did, to be 
precisely such an harassment or intimidation as he had 
been enjoined from perpetrating. Indeed, it would be hard 
to conceive of any other purpose for the action. In addition, 
the use of cattle prods and clubs to force the students to 
continue at a run or brisk walk was the kind of violence 
and molestation that the order was intended to protect 
them against.6

6 Although the appellant has not raised the question, it is clear that the 
order of the district court was in force on February 10, 1965, the day of 
the actions complained of. The order was issued January 23rd and re­
newed on January 30, 1965. I t  was designated as a temporary restraining 
order and, therefore, it could be said that it had expired under the terms 
of Rule 65(b). There are two reasons, however, why there was no expira­
tion. (1) Although the order was called a temporary restraining order, 
it was, in reality, a preliminary injunction, since it was issued after a 
hearing at which affidavits and counter affidavits were presented and at 
which both parties were heard. See, 7 Moore, Fed. Practice, at 1636-40. 
(2) Even considering the order as a temporary restraining order, Rule 65 
states that a temporary restraining order:

shall expire by its terms within such time after entry, not to exceed 
10 days, as the court fixes, unless within the time so fixed the order, 
for good cause shown, is extended for a like period or unless the 
party against whom the order is directed consents that it may he 
extended for a longer period. (Emphasis added.)

Although the record does not show that the appellant expressly consented 
to the order’s extension, it is clear that there was an implied consent and 
that all parties considered the order to be fully in force during the entire 
period here in question. Thus, on April 2, 1965, the appellant filed a peti­
tion requesting an amendment to the order of January 23rd and the court, 
on the same day, granted the motion in part and amended the order so as 
to restrict the areas of Selma in which demonstrations could take place 
(R. 117-123, 127-130).



13

II.

The District Court Had the Power to Punish Appellant 
for Contempt of Court Without Submitting the Issues 
to a Jury.

The major portion, of the appellant’s brief concerns it­
self with demonstrating that the proceeding below was one 
for criminal contempt. Appellees do not contest this. The 
motion for order to show cause made by the appellees on 
February 12, 1965, prayed:

That this court enter an order requiring defendants 
to immediately appear before this court, not later than 
February 15, 1965 and show cause why they, and each 
of them, should not be held in contempt of this court 
and punished therefore by fine and imprisonment, or 
both (E. 106-07).

The order to show cause issued by the court on March 
25, 1965, stated that the defendant should appear before the 
court on April 26, 1965, and “show cause why he should 
not be held in contempt of this court and punished therefore 
by fine and imprisonment or both” (E. 115). Further, the 
order of the court finding the appellant in contempt and 
imposing a fine was punitive in nature, arising from ap­
pellant’s past actions.

The fact that the contempt action was prosecuted by the 
appellees rather than by the United States Attorney did 
not alter its status as a criminal contempt proceeding. 
Although ordinarily a criminal contempt proceeding is 
brought by the federal authorities at the instance of the 
court, it is possible for the private parties themselves to 
prosecute such an action. See McCann v. New York Stock 
Exchange, 80 F. 2d 211 (2nd Cir. 1935) per Learned



14

Hand, J. The only issue raised by such a proceeding is 
whether a defendant had sufficient notice of the fact that 
the proceeding was criminal in nature. Here, appellant re­
ceived such notice from the appellees’ motion and the 
court’s order to show cause. Also, the fact that appellant 
had such notice is demonstrated by the fact that he has 
contended at all points in the proceedings, both at trial and 
here, that it was criminal in nature.

Appellees’ contention, therefore, is that although this 
was an action for criminal contempt, the District Court, 
sitting by itself, clearly had the power to punish the 
appellant, and that the appellant did not have, either 
under the Constitution or statutes of the United States, a 
right to a trial by jury on the issues presented.

A. T h e re  is n o  co n stitu tio n a l r ig h t to  tr ia l by ju r y  in  
crim in a l c o n te m p t cases.

The recent case of United States v. Barnett, 376 U.S. 681 
(1964), established clearly that there is no constitutional 
right to trial by jury for one charged with criminal con­
tempt. The only question possibly left unanswered by that 
case was that there might be some limitations on the punish­
ment that could be imposed by a court sitting without a 
jury. Assuming for the moment that the majority opin­
ion in Barnett may be so interpreted, appellees contend 
that the $1,500 fine imposed here was well within the 
bounds of any such limitation. See, Brown v. United States, 
359 U.S. 41, 52 (1959) (15 month imprisonment upheld) ; 
Moore v. United States, 150 F. 2d 323 (10th Cir. 1945) 
($5,000 fine upheld); Rapp v. United States, 146 F. 2d 548 
(9th Cir. 1944) ($1,500 fine upheld).

The Barnett decision thus makes clear that the appellant 
here may prevail only if the statutes of the United States



15

required the District Court to convene a jury. There is no 
such statutory requirement; rather the district court was 
acting within the scope of the general equity power con­
ferred by 28 U.S.C. §1343, 42 U.S.C. §1983, and 18 U.S.C. 
§401.

B. T h e  F edera l s ta tu tes g iv in g  th e  r ig h t to  tr ia l by ju r y  in  
crim in a l c o n te m p t cases are n o t applicable  to  th e  p resen t 
case.

Appellant’s main contention is that 42 U.S.C. §1995 gave 
him the right to a trial de novo by jury on the criminal 
contempt citation and that the court’s denial of his motion 
for such a trial was, therefore, in error. However, it is 
clear that 42 U.S.C. §1995 is not a statute of general ap­
plication to all criminal contempt cases. Rather, it applies 
only to cases brought by the Federal Government pursuant 
to 42 U.S.C. §1971 (c). Therefore, it has no application in a 
suit, such as the present one, brought by private persons 
relying on 42 U.S.C. §1983.

Section 1995 was added to Title 42 of the United States 
Code as part of the Civil Rights Act of 1957. Thus, in the 
language, “In all cases of criminal contempt arising under 
the provisions of this Act,” the words “this Act” refers only 
to Public Law 85-315, the Civil Rights Act of 1957 (71 Stat. 
638). (See Annotation to 42 U.S.C. §1995 in United States 
Code Annotated, and Federal Code Annotated). An ex­
amination of the 1957 Civil Rights Act shows that §1995 
has reference only to suits brought under 42 U.S.C. §1971,7

7 28 U.S.C. §1343(4) was also added by the 1957 Civil Rights Act. 
However, this section only provides an additional jurisdictional base in 
the district courts for civil rights eases, particularly the category of voting 
rights cases established by 42 U.S.C. §1971(c). As will be shown in the 
text, infra, the class in whose behalf the contempt citation was issued 
based their claim on 42 U.S.C. §1983 and 28 U.S.C. §1343(3). The 1957 
Civil Rights Act also enacted 42 U.S.C. §§1975-1975e, which established



16

and specifically under subsection (c), which gives the At­
torney General of the United States the power to institute 
civil actions or other proceedings, including an applica­
tion for permanent or temporary injunction, in order to 
prevent acts which would deprive any person of any right 
or privilege secured by subsection (a) or (b) of Section 
1971.

That the proper construction of §1995 is that it serves as 
a limitation on the power of the Federal District Court 
to punish for contempt only in suits brought on behalf of 
the Federal Government under §1971 (c) is demonstrated 
by the legislative history of the Act. A central concern of 
members of Congress was that the 1957 Act might be used 
as a vehicle by the Federal Government to punish, by sum­
mary proceedings for contempt, actions which would other­
wise be in violation of the existing criminal laws of the 
United States. Therefore, they wished to provide the pro­
tections that attach in normal criminal proceedings where 
citations for contempt of injunctions obtained by the 
Federal Government were sought. It is clear that there 
was no intention to limit the traditional power of a court 
of equity sitting in a case brought by private parties, as 
here.8

the United States Commission on Civil Rights and added and amended 
other miscellaneous provisions of the United States Code which are not 
at issue here.

8 The discussion in Congress of §1995, which was introduced as an 
amendment to the original bill, focused entirely on the problem of possible 
abuses of power by the Federal Government acting as a plaintiff in an 
action brought under 42 U.S.C., §1971. Representative Keeney of Illinois 
introduced an amendment which was similar in purpose to the one finally 
adopted as §1995, and in support of his amendment, he stated:

The plaintiff under this measure is the government of the United 
States of America. The prosecutor is the Attorney General of the 
United States of America . . . And before whom is the measure heard? 
Before a Federal judge . . . The plaintiff is the United States; the 
prosecutor is the United States; and the judge is the United States. 
But just to make sure, as sure as it can be, that the accused will he-



17

The complaint here was filed by private parties represent­
ing three classes of plaintiffs: persons seeking to register 
to vote; persons seeking to vouch for registrants; and per­
sons seeking to exercise their rights of free speech and as­
sembly. The suit was brought under 42 U.S.C. §1983, which 
states:

Every person who, under color of any statute, ordi­
nance, regulation, custom, or usage of any State or 
Territory, subjects, or causes to be subjected, any citi­
zen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an ac­
tion at law, suit in equity, or other proper proceeding 
for redress.

As to the first two classes of plaintiffs, the rights claimed 
to be deprived were those established by the Fifteenth 
Amendment to the Constitution and elaborated by 42 U.S.C. 
§§1971(a) and (b) (enacted pursuant to Congress’ enforce­
ment powers under Section 2 of the Amendment), which 
provide that all citizens shall have the right to vote with­
out distinction on the basis of race and color and the right 
to be free of intimidation, threats or coercion in the exercise 
of the right to vote.9

come a convicted defendant, they proceed to strip him of his right to 
a trial by a jury of his equals or his peers. 103 Cong. Rec. 9187 (85th 
Congress, 1st Sess., June 14, 1957).

See also the Remarks of Senator Robertson of Virginia, id. at 8468 (June 
6, 1957) and Senator Ervin of North Carolina, id. at 8471, 8472-73 (June 
6, 1957).

9 I t is clear that §§1971 (a) and (b) only set out in greater detail the 
rights established by the Fifteenth Amendment, and do not in and of 
themselves give the right to bring suit. Voting suits may be brought only 
under §1971 (c), and that section gives such authority only to the At­
torney General of the United States.



18

The third class of plaintiffs, on the other hand, claimed 
solely that they were deprived, under color of law, of rights 
secured by the First and Fourteenth Amendments to the 
Constitution, i.e., the rights to freedom of speech and as­
sembly, Thus, in no way did they assert the deprivation of 
rights secured by either the Fifteenth Amendment or 
§1971.10

And, of course, the contempt citation at issue here was 
granted on behalf not of the first two classes of plaintiffs, 
but rather on behalf of members of this third class. That 
is, the appellant was found in contempt because he had 
violated that portion of the court’s order which enjoined 
him from intimidating or harassing “those legally . . . en­
couraging [others] to register to vote.” Since §1995 thus 
did not apply, the District Court possessed the power in­
herent in a court of equity and as provided in 18 U.S.C. 
§401, which states in part:

A court of the United States shall have power to pun­
ish by fine or imprisonment, at its discretion, such 
contempt of its authority, and none other, as . . .
(3) Disobedience or resistance to its lawful writ, proc­
ess, order, rule, decree or command.

Similarly, the limitations in §1995 on the fine that may 
be imposed also did not apply (see, supra, Part 11(A)).

And under the provisions of 18 U.S.C. §401, as the Court 
stated in The United States v. Barnett, 376 U.S. 681 at 692:

10 The jurisdictional basis for the action on behalf of the third class 
was, therefore, 28 U.S.C. §1343(3), which states, in part, that the district 
courts have jurisdiction of actions:

To redress the deprivation, under color of any State law, statute, 
ordinance, regulation, custom or usage, of any right, privilege, or 
immunity secured by the Constitution of the United States . . . .



19

It has always been the law of the land, both state and 
federal, that the courts—except where specifically pre­
cluded by statute—have the power to proceed sum­
marily in contempt matters.11

In summation, appellees contend that: 42 U.S.C. §1995 
applies only to suits brought under the Civil Eights Act 
of 1957, i.e., to suits brought by the Attorney General of 
the United States pursuant to 42 U.S.C. §1971 (c). The suit 
herein was brought by private parties under 42 U.S.C. 
§1983, although the first two classes of plaintiffs claimed 
the deprivation of rights protected by the Fifteenth Amend­
ment and 42 U.S.C. §1971 (a) and (b). Even if it were as­
sumed, for the sake of argument, that the appellant might 
have had a right to a trial de novo by a jury if he had 
been found in contempt of that portion of the trial court’s 
order that protected the first two classes of plaintiffs, he 
would not have such a right with regard to the contempt 
citation that actually issued. This result must follow since: 
(1) the right to a jury does not attach under §1995 until 
after a finding of contempt in a case arising from the 1957 
Act; and (2) the finding of contempt here was on behalf 
of plaintiffs claiming the rights of free speech and as­
sembly, and not rights arising under that Act.

11 Appellant did not raise at trial nor has he raised here the question 
of the applicability of 18 U.S.C. §§402 and 3691, which also provided for 
jury trial of criminal contempts under certain circumstances. Since Sec­
tion 3691 requires that the plaintiff demand a trial by jury and since no 
demand was made, it is clear that appellant has waived any possible 
rights he might have under that section. (Section 3691 has no provision 
for a request for a trial de novo by a jury after conviction by the court, 
as does 42 U.S.C. §1995.) However, even if such a demand had been 
made, it is clear that the above sections would have no application. They 
are limited to the situations where the act cited as a contempt of the court’s 
order also constitutes a criminal offense under any act of Congress or 
under the law of the state in which the act was done or committed. Neither 
the plaintiff nor the appellant claims that the act committed would consti­
tute such a crime. The facts in this case do not establish that there was 
the commission of such a crime.



20

CONCLUSION

For the foregoing reasons, the judgment below should 
be affirm ed.

Respectfully submitted,

N orman C. A makeb 
J ack Greenberg 
Charles H. J ones, J r.
Charles S tephen Ralston 

10 Columbus Circle 
New York, New York 10019

P eter A. H all

1630 Fourth Avenue North 
Birmingham, Alabama

Attorneys for Appellees



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