Shuttlesworth v Birmingham Brief in Opposition to Petition for Writ of Certiorari and Argument

    IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1962.

No. 1140.

FRED L, SHUTTLESWORTH,
Petitioner,

vs,
CITY OF BIRMINGHAM.

BRIEF AND ARGUMENT
Of Respondent City of Birmingham in Opposition to 

Petition for Writ of Certiorari to the Court 
of Appeals of Alabama.

J. M. BRECKENRIDGE,
600 City Hall Building, 

Birmingham 3, Alabama, 
Attorney for Respondent, 

City of Birmingham.

St. L ouis L aw Printing Co., I nc., 415 N. E ighth  Street. CEntral 1-4477.



INDEX.
Page

Jurisdiction ..................................................................  1
Citations and argument relating to the jurisdiction of

this court to entertain certiorari in this ca se .........  2
Facts relating to the arrest of petitioner ................  4

Gases Cited.

Aceardo v. State, 268 Ala. 293, 105 So. 2d 865 .........  2
Barbour v. State of Georgia, 249 U. S. 454, 39 S. Ct.

316, 317 .................................................................... 3
Duckett v. State, 257 Ala. 589, 60 So. 2d 357 ............ 2
Ex Parte Cranmore, 273 Ala. 4, 129 So. 2d 688 . . . .  2
Ex parte Davis, 269 Ala. 58, 110 So. 2d 306 ........  2
John v. Paullin, 231 IT. S. 583, 34 S. Ct. 178, 179, 58

L. Ed. 381 ................................................................  3
Ladd v. State, 266 Ala. 586, 98 So. 2d 59 ................  2
Louisville & Nashville Railroad Company v. Wood­

ford, 234 IT. S. 46, 34 S. Ct. 739, 741 . . . ' .................. 3
McDonald v. Amason, 267 Ala. 654, 104 So. 2d 719. . 2
Michel v. State of Louisiana, 340 IT. S. 832, 71 S. Ct.

45 ..............................................................................  4
Smith v. State, 264 Ala. 264, 86 So. 2d 842 ............
Stovall v. State, 257 Ala. 116, 57 So. 2d 641 ............
Taylor v. City of Birmingham, 35 Ala. App. 133, 45 

So. 2d 53, cert den., 253 Ala. 369, 45 So. 2d 60, cert.
den., 340 IT. S. 832, 71 S. Ct. 45 ..............................  4

Whitney v. People of State of California, 274 LT. S.
357, 47 Sup. Ct. 641.............    3

Statutes and Rule Cited.

Alabama Supreme Court Rule 32 ................................  2
General City Code of Birmingham of 1944:

Section 825 .....................................    7
Section 856 ........................................................ 7
Section 910 ........................................................ 7

Title 28, United States Code, Section 1257 (3) ......... 1

SO
 

10



IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1962.

No. 1140.

FRED L. SHUTTLESWORTH, 
Petitioner, 

vs.
CITY OF BIRMINGHAM.

BRIEF AND ARGUMENT
Of Respondent City of Birmingham in Opposition to 

Petition for Writ of Certiorari to the Court 
of Appeals of Alabama.

JURISDICTION.

Under the heading “ Jurisdiction”  the Petitioner says 
that the jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code, Section 1257 (3), “ petitioner 
having* asserted below, and claiming here, deprivation of 
rights, privileges and immunities secured by the Consti­
tution of the United States” . However, this claim of Pe­
titioner is not shown by the Record. In fact, the Record 
is clear that the Petitioner did not raise any issue whatso-



—  2 —

ever, constitutional or otherwise, before the Supreme Court 
of Alabama. Petitioner has ignored the requirements to 
obtain a review of his case before the Supreme Court of 
Alabama. Petitioner completely ignored Alabama. Su­
preme Court Rule 32, which provides that the petition for 
certiorari to the Court of Appeals be stricken if it is not 
on transcript paper-.

CITATIONS AND ARGUMENT RELATING TO THE 
JURISDICTION OF THIS COURT TO ENTER­

TAIN CERTIORARI IN THIS. CASE.

The Supreme Court of Alabama has consistently ordered 
stricken every application for certiorari to the Court of 
Appeals of Alabama which was not submitted on transcript 
paper as mandatorily required by Supreme Court Rule 32. 
The Petitioner chose to ignore this rule and thereby has 
not presented to the Supreme Court of Alabama in the 
manner prescribed by its rules the alleged constitutional 
questions which he is attempting to present to this Court.

The Opinions of the Supreme Court of Alabama wherein 
petitions for certiorari to the Court of Appeals of A la­
bama were stricken because such petitions were not on 
transcript paper are too numerous to mention. A  few of 
such cases are the following: Stovall v. State, 257 Ala. 116, 
57 So. 2d 641; Duckett v. State, 257 Ala. 589, 60 So. 2d 
357; Smith v. State, 264 Ala. 264, 86 So. 2d 842; Ladd v. 
State, 266 Ala. 586, 98 So. 2d 59; McDonald v. Amason, 
267 Ala. 654, 104 So. 2d 719; Accardo v. State, 268 Ala. 
293, 105 So. 2d 865; Ex parte Davis, 269 Ala, 58, 110 So. 
2d 306; Ex Parte Cranmore, 273 Ala. 4, 129 So. 2d 688.

This Court has held that the law of practice of a State 
must be complied with in order to properly bring consti­
tutional questions to this Court. An orderly method for 
judicial review of this Court could reasonably require no 
less. This Court has recognized this and has so held.



The rule in this regard is stated in John v. Paullin, 231 
U. S. 583, 34 8. Ct, 178, 179, 58 L. Ed. 381:

“ Without any doubt it rests with each state to 
prescribe the jurisdiction of its appellate courts, the 
mode and time of invoking that jurisdiction, and the 
rules of practice to be applied in its exercise, and the 
law and practice in this regard are no less applicable 
when Federal rights are in controversy than when 
the case turns entirely upon questions of local or gen­
eral law. Calian v. Bransford, 139 IT. S. 197, 35 L. Ed. 
144, 11 Sup. Ct. Rep. 519; Brown v. Massachusetts, 144 
F. S. 573, 36 L. Ed. 546, 12 Sup. Ct. Rep. 757; Jacobi 
v. Alabama, 187 IT. S. 133, 47 L, Ed. 106, 23 Sup. Ct. 
Rep.; Halbert v. Chicago, 202 IT. S. 275, 281, 50 L. Ed. 
1026, 26 Sup. Ct. Rep. 617; Newman v. Gates, 204 
IT. S. 89, 51 L. Ed. 385, 27 Sup. Ct. Rep. 220; Chesa­
peake & O. R. Co. v. McDonald, 214 IT. S. 191, 195, 53 
L. Ed. 963, 965, 29 Sup. Ct. Rep. 546.”

I t  has long been settled that the Supreme Court acquires 
no jurisdiction to review the judgment of a State court of 
last resort unless it affirmatively appears on the face of 
the record that a Federal question constituting an ap­
propriate ground for such review was presented in and 
expressly or necessarily decided by such state court of 
last resort. Whitney v. People of State of California, 274 
IT. S. 357, 47 Sup. Ct. 641.

It  is also fully settled that where a constitutional ques­
tion is not properly presented to the State Appellate Court 
of last resort, and for this reason, under state practice, is 
not decided or passed upon by such Court of last resort, 
the question is not before the Supreme Court on certiorari 
to the State court. Barbour v. State of Georgia, 249 IT. S. 
454, 39 S. Ct. 316, 317; Louisville & Nashville Railroad 
Company v. Woodford, 234 IT. S. 46, 34 S. Ct. 739, 741;



-—  4 —

Taylor v. City of Birmingham, 35 Ala. App. 133, 45 So. 
2d 53, cert, den., 253 Ala. 369, 45 So. 2d 60, cert, den., 340 
U. S. 832, 71 S. Ct. 45; Michel v. State of Louisiana, 340
1J. 'S. 832, 71 S. Ct. 45.

I t  is therefore respectfully suggested that Petitioner’s 
failure to comply with procedural requirements necessary 
to obtain a decision of the Supreme Court of Alabama on 
the alleged constitutional issues he raises before this Court 
is sufficient without more to deny certiorari in this case.

FACTS RELATING TO THE ARREST 
OF PETITIONER.

A t the time the Petitioner was arrested there was a 
large crowd in and around the bus station (R. 14, 17, 18, 26, 
34, 35). Captain Jack A. Warren estimated the size of the 
crowd to be approximately 250 or 300 persons (R. 29). The 
crowd was in a boisterous and jeering mood and some of 
the crowd yelled out, “ Take the police away and we will 
take care of i t ”  (R. 14). Other witnesses also testified as 
to the dangerous emotion of the crowd or mob. Captain 
James W. Garrison testified things were tense at the bus 
station (R. 24), and he felt the Freedom Riders were in 
danger actually of their lives (R. 24). The attitude was 
belligerent, storming, and overall anger (R. 26), and it 
was directed toward the Freedom Riders (R. 26). Captain 
Jack A. Warren testified there was a great deal of tension 
at the bus station (R. 29, 30): “ You could see it in the 
faces of the people in the crowd, you could tell it in the 
talking to themselves and their muttering and trying to 
press forward toward the bus loading platform. I  was 
very much aware of that. As a matter of fact, that is the 
reason I  was there”  (R. 29, 30). Officer T. T. Trammell 
testified there was a lot of unrest at the station and it 
seemed like everything could erupt in one fast moment 
(R. 35),



-—  D

At the time of Petitioner’s arrest there were 30 or 35 or 
maybe 40 policemen at the bus station, and during the week 
approximately 80 per cent of the entire police force was 
engaged at the bus station at one time or another (E. 26). 
The duties of these officers were described by Captain 
James W. Garrison as follows: “ Well, we had some of­
ficers that stayed right with these Freedom Eiders all the 
time. We had others that was assigned to keep back the 
crowds. WTe had others to work traffic at the different 
intersections. We had 19th Street blocked entirely and 
had 7th Avenue blocked between 18th and 19th Streets to 
avoid cars just continuing in a circle. And some were in­
side the bus station and stayed in the waiting room the 
entire time”  (E. 26, 27).

The Freedom Eiders were unable to get a driver to drive 
the bus (E. 26, 40).

The conduct of the Petitioner hindered or interfered 
with Chief Jamie Moore when he was placing the Freedom 
Riders in protective custody (R. 24, 28).

Chief Moore told the Freedom Eiders who he was, i. e., 
Chief of Police of the City of Birmingham, and that he 
was taking them into protective custody due to the cir­
cumstances at the bus station (R. 13, 14, 15, 20).

Chief Moore told the Petitioner to leave the bus station, 
that he was not concerned with what was happening, but 
the Petitioner did not leave but got between Chief Moore 
and the Freedom Eiders and would not leave on order.

Captain James W. Garrison also told the Petitioner to 
move on, and the Petitioner continued to interfere (E. 20).

The Petitioner knew Chief Moore and his capacity with 
the City (R. 43, 44).

The Petitioner was a resident of the City. The sub­
stance of the record clearly shows that at the time the



—  6 —

freedom riders were taken into protective custody for 
their own protection the Police believed all of them to be 
non-residents passing through the City of Birmingham 
en route to Montgomery, Alabama, and that they were, 
marooned in the Bus Depot. The police knew the Peti­
tioner to be a local man and that he did not come into the 
City with the freedom riders.

The presence of the freedom riders in Birmingham at 
that time (only a few days after a bus had been burned 
on the highway), the refusal of bus drivers to take out 
any bus on which they rode, the crowd or mob gathered 
around the bus station, the coming of night time presented 
a grave crisis. The issue of law and order was paramount. 
The record in this case is completely devoid of any pro­
test, objection or resistance of the freedom riders to being 
taken into protective custody. The action of the police 
in furnishing the freedom riders with a safe place of 
refuge probably saved some of their lives, as well as the 
lives of others, and the record indicates they accepted this 
safe place of refuge without objection.

The Police acted to maintain law and order. The Police 
acted on facts which were apparent to them. The Police 
are not constitutional lawyers and should not be. They 
acted in a practical manner. Their actions were not ob­
jected to by the freedom riders. The Petitioner hindered 
or interfered with the action of the Police in removing the 
freedom riders from the scene, which removal was neces­
sary in the judgment of the Police to prevent a riot. The 
action of the Police was successful. Their action prevented 
serious injury or loss of life. They are to be commended. 
The Petitioner did wilfully interfere with the police of­
ficer in maintaining law and order. There was nothing 
vague about the charge. The complaint (R. 1-B) specif­
ically spelled out the manner in which he did interfere 
with the Chief of Police as follows:



. . said defendant did knowingly and wilfully 
place himself between said officer and a group of peo­
ple commonly called ‘ freedom riders’ when said peo­
ple were being placed in protective custody by said 
officer, and said defendant did knowingly and wil­
fully refuse to move out of the way of said police of­
ficer after being so ordered, contrary to and in viola­
tion of Section 856 of the General City Code of 
Birmingham of 1944.”

The evidence sustaining the charge above set out is 
clear from the record. The Petitioner was convicted as 
charged. The Court of Appeals affirmed the judgment of 
the trial court. The Petitioner was not convicted of a 
violation of Section 825 of the City Code dealing with 
the crime of Assault. Although some reference to said 
Section 825 appears in the opinion of the Court of Ap­
peals, the majority of the Judges concurred “ in the result”  
and affirmed the judgment of the lower court, which judg­
ment constituted a conviction for a violation of Section 856 
of the City Code as charged in the complaint.

Lest there be some doubt that the Chief of Police was 
“ in the discharge of a legal duty” , this Court is respect­
fully referred to Section 910 of the General Code of the 
City of Birmingham of 1944, which provides, in part, as 
follows:

“ Sec. 910. Functions of Department.

(a) General. The Police Department shall be 
charged with the preservation of the peace and order 
of the city, the protection of all persons and property 
within the city, and the enforcement of all criminal 
ordinances and all criminal laws of the city and the 
state. The department shall suppress all riots, dis­
turbances and breaches of the peace, etc.”



We respectfully submit that the reasonable actions of 
the Chief of Police of a City taken with a view of prevent­
ing an imminent riot was in the discharge of legal duties 
of such officer. I f  law and order in this County, both 
North and South, is to be maintained, the authority of the 
Police in situations such as is shown by this record should 
be affirmed.

It  is therefore requested that the Petition for W rit of 
Certiorari to the Court of Appeals of Alabama in this case 
be denied.

Respectfully submit,

J. M. BRECKENRIDGE,
6001 City Hall Building, 

Birmingham. 3, Alabama, 
Attorney for Respondent, 

City of Birmingham.

Certificate of Service.

This is to certify that I  have this^T’r.m * day of June, 
1963, served copies of the above and foregoing brief upon 
Jack Greenberg, James M. Nabrit I II ,  and George B. Smith, 
10 Columbus Circle, New York 19, New York, and Peter A. 
Hall and Orzell Billingsley, Jr., 1630 Fourth Avenue North, 
Birmingham, Alabama; all attorneys for the Petitioner, by 
depositing copies addressed to them at their respective 
offices as set out above in the Unitqd States Mail, postage 
prepaid.

,y . M. Breekenridge,
Attorney for Respondent, 

City of Birmingham.