Gamble v. City of Dublin, GA Brief for Appellants

    In the

United States (Enurt nf Ap p e a ls
F or the F ifth Circuit

No. 22923 No. 22924
Reuben Gamble, et al.,

Appellants,
Gloria Outler, et al.,

Appellants,

City of Dublin, Georgia, 
Appellee.

City of Dublin, Georgia, 
Appellee.

No. 23546
Reuben Gamble, et al. and Gloria Outler, et al.,

Appellants,

City of Dublin, Georgia,
Appellee.

Reuben Gamble, et al.,
Appellants,

— v.—

W illiam J osey, et al.,
Appellees.

appeals prom the united states district court for the
SOUTHERN DISTRICT OP GEORGIA

BRIEF FOR APPELLANTS

H oward Moore, J r.
859% Hunter Street, N. W. 
Atlanta, Georgia

Thomas J ackson
755 Monroe Street 
Macon, Georgia

J ack Greenberg 
Charles Stephen Ralston 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



I N D E X

PAGE

Statement of the Case .................................................  2

Specifications of Errors ....................... ............. ......... 13

A rgum ent :

I. In Light of the Allegations of Their Removal 
Petition and the Evidence They Introduced at 
the Hearing Below, Appellants-Petitioners Were 
Entitled to Removal, or at Least to Pull Find­
ings of Pact ........................................................  14

II. The Ordinances of the City of Dublin With 
Which the District Court’s Injunction Required 
Appellants to Comply Violate the First and 
Fourteenth Amendments to the Constitution .... 18

C on clu sio n  ....................... .............. .......... .............. .......... ......... .......... 21

A p pen d ix  ....................................................................... la

T able o p  Cases

Blow v. North Carolina, 379 U. S. 684 (1965) ...... 15,16,18

City of Greenwood v. Peacock, 384 U. S. 808 (1966) .... 18 
Cox v. New Hampshire, 312 U. S. 569 (1941) .............  '20

20, 21Freedman v. Maryland, 380 U. S. 51 (1965) 

Georgia v. Rachel, 384 U. S. 780 (1966) .... 14,15,17,18



11

PAGE

Hamm v. City of Rock Hill, 379 U. S. 306 (1964) ...... 15,17
Herndon v. Lowry, 301 U. S. 242 (1937) ..................... 21

Kelly v. Page, 335 F. 2d 114 (5th Cir. 1964) .............. 19
King v. City of Clarksdale, 186 So. 2d 228 (Miss. 

1966) ............................................................     19

Lovell v. Griffin, 303 U. S. 444 (1938) ........................  19
Lupper v. Arkansas, 379 U. S. 306 (1964) .......... ....... 15,17

McGee v. City of Meridian, 359 F. 2d 846 (5th. Cir.
1966) ..................    18

MeKinnie v. Tennessee, 214 Tenn. 195, 379 S. W. 2d
214 (1964) .................................................................  16

MeKinnie v. Tennessee, 380 II. S. 449 (1965) ...... ....16,18

HAACP v. Button, 371 U. S. 415 (1963) ..................... 21

F ederal S tatute

28 U. S. C. §1443 .............................................................  2

C ity  Ordinance

Section 26-21, Code of Ordinances of the City of Dublin 20



In t h e

United States (Tmtrt nf A p p a l s
F ob th e  F if t h  Circuit

No. 22923
R euben  Gamble, et al.,

Appellants,

C ity  of D u b lin , Georgia,
Appellee.

No. 22924
Gloria C utler , et al.,

Appellants,

City  of D u b l in , Georgia,
Appellee.

No. 23546
R euben  Gamble, et al., an d  Gloria Outler , et al.,

_ v. _
Appellants,

City  of D u b lin , Georgia,
Appellee.

R buben  Gamble, et al.,
Appellants,

W illiam  J osey, et al.,
Appellees.

APPEALS PROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF GEORGIA

BRIEF FOR APPELLANTS



2

Statement o f the Case

This is an appeal from an order of the United States 
District Court for the Southern District of Georgia, in three 
related actions that were consolidated for trial and on ap­
peal. Two of the cases,- Reuben Gamble, et al. v. City of 
Dublin, Georgia, No. 22923; Gloria Outler, et al. v. City of 
Dublin, Georgia, No. 22924 (and Reuben Gamble, et al. and 
Gloria Outler, et al. v. City of Dublin, Georgia, in No. 
23546), involved the removal of state prosecutions to the 
federal district court under the provisions of 28 U. S. C. 
§1443. In those cases the District Court, after a hearing, 
granted the city’s motion to remand. In the third case, 
Reuben Gamble, et al. v. William Josey, et al., No. 23546, 
the appellants-plaintiffs below requested injunctive relief 
against the enforcement of certain city ordinances and 
against acts and omissions of city officials. The District 
Court denied the relief sought by plaintiffs and granted 
an injunction against the plaintiffs on the basis of the de­
fendant’s counterclaim.

On or about August 14, 1965, appellants in the case of 
Outler v. City of Dublin, No. 22924, filed their petition for 
removal seeking to remove the prosecutions of 22 persons 
from the Recorder’s Court of the City of Dublin to the 
United States District Court for the Southern District of 
Georgia (R. 4-12). Removal was supported by allegations 
that the petitioners were being prosecuted because they had 
committed acts protected by Title II of the Civil Rights Act 
of 1964 (R. 7). Specifically, they claimed that they had 
been arrested on August 12, 1965, while peacefully picketing 
Todd’s Sinclair Service Station, an establishment covered 
by Title II to protest the denial of and to attempt to secure 
equal access to a place of public accommodation (R. 6-7).



3

Therefore, their arrests and threatened prosecutions were 
acts intended to intimidate, threaten, coerce or punish peti­
tioners for exercising rights secured by Title II of the 
Civil Eights Act. The petition was supported by an affi­
davit by appellant Outler (R. 10-12). Subsequently, on 
August 25, 1965,. the City of Dublin filed a motion for re­
mand of the cases to the Recorder’s Court (R. 13-17).

On August 16, 1965, the second petition for removal, on 
behalf of the appellants in No. 22923, Gamble v. City of 
Dublin, was filed in the federal district court (R. 49-55). 
The allegations of the petition were substantially similar to 
the first one, except that the arrests were on August 11, 
and it was alleged that some of the forty-seven petitioners 
were arrested at a site other than the service station in­
volved, but that their arrests were also caused by their 
attempts to gain equal access to the service station. There­
fore, the threatened prosecutions were intended to punish 
petitioners for exercising rights secured by Title II of the 
1964 Act. The petition was supported by affidavits by ap­
pellants Gamble and Turner (R. 55-60). On August 25, 
1965, a second motion to remand was filed by the City of 
Dublin, which again contested the jurisdiction of the federal 
court (R. 68-72).1

1 In the removal cases a motion for further relief was filed by 
petitioners on August 17, 1965, alleging that despite the filing of 
the removal petitions the respondents were continuing with the 
prosecutions (R. 61-65, 35-44). The District Court was asked to 
enjoin the prosecutions pending a hearing on the removal petitions. 
On the same day, the District Court issued an order denying the 
temporary restraining order but setting a hearing for August 25 
(R. 66-67). The petitioners immediately filed notices of appeal 
from the denial of the temporary restraining order (R. 67, 46). On 
September 28, 1965, this Court granted a motion to consolidate the 
appeals in Nos. 22923, 22924, and 22925 (a third removal pro­
ceeding that has since been abandoned, see R. 102) and a motion 
to withdraw appellants’ motion for an injunction pending appeal



4

On August 16, 1965, a complaint was filed by Reuben 
Gamble and others (appellants in No. 23546, here) against 
William Josey, Chief of Police of the City of Dublin, 
Georgia (R. 74-85), and on August 23, 1965, they filed a 
motion for preliminary injunction. In their complaint the 
plaintiffs alleged that they had been attempting to conduct 
in the City of Dublin, Georgia, peaceful and nonviolent 
demonstrations protesting what they considered various 
denials of equal protection in the city. Among their activi­
ties was included the picketing of Todd’s Sinclair Service 
Station, a place of public accommodations within the mean­
ing of Title II of the Civil Rights Act of 1964, on a number 
of occasions. However, it was alleged, the defendant and 
officers acting under his direction and control interfered 
with their peaceful and lawful activities by making un­
justified arrests. In addition, it was alleged that on a 
number of instances when the plaintiffs had been attempt­
ing to exercise their rights under Title II and the federal 
constitution, the defendant had failed to provide them with 
the police protection to which they were entitled and had 
allowed hostile persons to engage in threats, violence and 
other intimidation.

The plaintiffs asked the court to issue an order enjoining 
the defendants from interfering by threats, intimidation, 
or arrests with plaintiffs and members of their class peace­
fully assembling, marching and demonstrating “at reason­
able times and in such a way as not to create undue conges­
tion or interferences with traffic in the City,” and from

against the continuation of the prosecutions (R. 47-48) in light 
of the intervening action of the District Court in August 25, 1965 
restraining any prosecutions until the disposition of the eases. 
No. 23546, the injunction action, was consolidated with the re­
maining removal cases for purposes of trial and appeal.



5

failing to provide plaintiffs with adequate police protection 
against threats, violence, etc. of persons hostile to them 
(E. 84).

On August 25, 1965, the defendant hied an answer and 
counterclaim (E. 87-97). The answer first moved to d ism iss 
the complaint on the grounds that no claim upon which 
relief could be granted had been stated and the court was 
without jurisdiction. Further, the defendants generally 
denied the allegations of the complaint and claimed that 
the picketing of the service station was not peaceable,, but 
had resulted in the obstruction of the entrances and exits 
of the place of business. It was also denied that there had 
been any failure to provide police protection to plaintiffs 
or members of their class.

In his counterclaim the defendant alleged that the plain­
tiffs had conducted numerous picketing demonstrations 
and boycotts in the city which had caused traffic to become 
congested and which generally constituted a hazard to pub­
lic safety. It was also alleged that plaintiffs had engaged 
in acts of violence involving the throwing of bottles, rocks, 
etc., and that they, together with certain named organiza­
tions, had been fomenting violence and disorder. As a 
result of these acts on the part of the plaintiffs, it was 
difficult, because of limited personnel, to provide ade­
quate police protection to the demonstrators and to all of 
the citizens of the City of Dublin. It was also alleged that 
the acts of the plaintiffs had violated certain ordinances of 
the City of Dublin (E. 95-96).

The defendant prayed that the relief sought by the plain­
tiffs be denied and asked the court to enjoin them from 
engaging in any of the unlawful acts referred to, or in 
the alternative “to set up certain guide lines and regu­
lations as to how often such demonstrations can be carried



6

on, how many persons may participate, and for what length 
of time that they may be allowed to picket” (B. 97).

Subsequently, on September 15, 1965,- the plaintiffs filed 
a response to the counterclaim, generally denying its alle­
gations (R. 98-101).

Since the three actions involved many of the same facts 
and circumstances, they were consolidated and a hearing 
was held at which extensive testimony was taken on both 
sides. For the purposes of clarity, the evidence will be 
summarized in two sections, the first relating to the picket­
ing of Todd’s Sinclair Service Station, and the second re­
lating to other demonstrations and events that took place in 
the City of Dublin.

1 .  The Arrests at T odd’s Sinclair Service Station

The arrests that led to the filing of the two removal peti­
tions in this case arose out of incidents on Wednesday, 
August 11, 1965, and Thursday, August 12,1965. According 
to affidavits filed by the petitioners below and admitted into 
evidence by the court, subject to cross-examination of the 
affiants (R. 18-35), on the evening of August 11th, a group 
of Negroes were picketing Todd’s Sinclair Service Station 
in the City of Dublin. They were protesting what they 
claimed to be denial of equal access to the facilities of the 
service station for certain members of the Negro commu­
nity, particularly those associated with civil rights groups 
then carrying on activities in the city (R. 537). The affi­
davit of Sammie Jackson stated that after the picketing 
had gone on for a while policemen arrived, among them 
Chief of Police William Josey, who told the pickets to 
disperse and to go home. When the pickets continued to 
march, the Chief told them to go home a second time, but 
when they started to leave they were placed under arrest



7

(E. 22). Other arrests had occurred earlier on the same 
day of persons who had been picketing (E. 27-28).

In addition, some individuals were arrested who may not 
have actually been picketing but who were in the area near 
the service station and who apparently were thought to be 
among the pickets (E. 23-24). After the arrests at the ser­
vice station itself, persons at the offices of the civil rights 
organizations, which were down the block from the service 
station, were arrested by police officers apparently because 
at least some of them had been participating in the picket­
ing (E. 30-31).

On the next day, August 12, 1965, picketing was resumed 
at the service station at or about 2 :30 in the afternoon. The 
first group of pickets, according to the affidavit of Gloria 
Outler, consisted of only 7 or 8 persons. After a short 
period, the police arrived and arrested those pickets (E. 
10). Gloria Outler and others then resumed the picketing 
and a few minutes later the police again arrived. One of 
the policemen told them that they could not have any more 
than six pickets and that the rest should leave. When all 
of the pickets continued to march 3 to 5 feet apart, they 
were all arrested (E. 11, 32-33).

At the hearing itself further evidence was presented in 
support of the appellants-petitioners’ version of the inci­
dents at the service station. Juanita Tucker testified that 
she was present at Todd’s Service Station on August 11, 
1965 and observed the picketing. She testified that it was 
peaceful and that there were about 6 or 7 and no more than 
10 pickets (E. 469-70). On cross-examination photographs, 
were shown her that were said to represent the situation at 
the service station at the time of the picketing. She ad­
mitted that there were more than 10 pickets in the photo­
graphs and perhaps as many as 25 (E. 478-79).



8

Charles Myrick testified that he took part in the picket­
ing on August 11, 1965. At the time he picketed, there were 
about 25 persons in the line (R. 484). He testified that the 
picketing did not interfere with the traffic going along the 
street (R. 486). The police came and gave orders for 
the pickets to disperse, but they continued and were then 
arrested. On cross-examination the witness was again 
shown photographs and asked whether pickets were block­
ing the driveway and entrances into the service station. 
The witness said they were not (R. 490-94). Testimony of 
other witnesses for the appellants generally supported the 
proposition that the picketing was peaceful and orderly, 
that there were up to 25 persons, and did not in and of 
itself cause any blocking of the driveways. Rather, it was 
indicated, any blocking was caused by the position of bar­
ricades erected by the Chief of Police (R. 504-507).

Appellant Reuben Gamble testified that he observed ap­
proximately 20 pickets in front of the gas station and that 
there also was a group of about 50 white persons milling 
around in the service station property (R. 531). After 
observing the picketing he went down the street to the 
NAACP-SCOPE office where he remained until he became 
aware of a disturbance out on the street. He went outside 
and observed the Chief of Police ordering the pickets to 
disperse or they would be arrested. When they did not 
disperse, the police arrested pickets and others in the area 
(R. 534). Appellant testified further that the purpose of 
picketing the service station was that it had refused to 
serve some Negroes, especially Negroes who were active in 
the civil rights movement or Negroes who were wearing 
SCOPE or NAACP buttons. Instructions had been given 
to the pickets to be orderly and peaceful at all times, and



9

as far as the witness observed, the instructions were carried 
out (R. 537).

The testimony of the witnesses for the appellees-respon- 
dents generally contradicted that of the appellants. The 
Chief of Police, William Josey, testified that he went out to 
the service station on August 11, and observed a number of 
persons picketing. There was a total of 52 persons arrested 
at that time (R. 128), some of whom were arrested near the 
SCOPE headquarters, down the street from the filling sta­
tion, after the Chief had issued an order for all persons in 
the vicinity to leave and go to their homes (R. 129-130).

The Chief testified that he set up a barricade at the 
service station because the pickets were completely block­
ing the entrances to the station (R. 134). However, one 
of the barricades did close off one of the driveways into the 
service station (R. 137). Chief Josey testified that the 
number of pickets varied from 20 on up to 50 or 60 at times, 
across a 60 foot frontage in front of the service station 
(R. 138-139).

The Chief returned to the service station on August 12, 
1965, at which time he observed more pickets. He told them 
that they should have only six pickets and that they did not 
have a right to block the entrances to the service station 
(R. 143-144). More of the pickets were arrested on that 
day (R. 145-146). Other witnesses, including the Judge of 
the Dublin Superior Court and other police officers, testi­
fied generally that there were a large number of pickets at 
the service station, that entrances and exits were blocked 
by them and that traffic was impaired (R. 154-56, 159-61. 
372-73).

One of the questions raised by the record and one that 
was not completely clarified by the evidence is the identity



10

of the persons arrested at the site of the picketing itself 
and those arrested a few moments later down the street 
at the civil rights office. Apparently what occurred, was 
that the police chief gave an order for the pickets to dis­
perse. When they did not do so at first, he gave a second 
order, at which time a number of the persons began to 
leave. However, before they began to leave, the Chief had 
already given instructions to his men to arrest the pickets. 
They arrested a number of persons at the service station 
and then went down the street to the office where there 
were a group of people assembled. The Chief of Police 
gave an order for those persons to disperse and when they 
did not, all the persons at the office were arrested, includ­
ing persons who had just returned from the site of the 
picketing (R. 509-10, 130-32). 2

2 .  Other Incidents Relating to the Issuance 
of the Court’s Injunction

The remainder of the evidence taken at the trial below 
related to other incidents that took place in the City of 
Dublin in the Summer of 1965. In general, the appellants- 
plaintiffs in the injunction action (No. 23546, here) alleged 
and testified that they had been denied the right to carry 
on peaceful demonstrations as guaranteed by the Four­
teenth and First Amendments to the Constitution, and had 
been denied adequate police protection against attack by 
persons hostile to their activities.

In an affidavit introduced in support of the motion for 
preliminary injunction, Maxim Karl Rice, a white civil 
rights worker, testified that he was beaten by a white resi­
dent of Dublin, across the street from a church that had 
been a scene of a civil rights demonstration. During the 
time he was being beaten, the affidavit alleged, the Chief of



11

Police and other policemen were present, but did nothing 
to protect Rice. Moreover, just before the attack when 
Rice and others were conducting the demonstration before 
the church, a city fireman had thrown oil of mustard on 
them and the Chief of Police had done nothing (R. 19-20). 
Another witness testified and generally supported Rice’s 
account of what occurred on July 25 (R. 501-02).

Other witnesses testified that on occasions white persons 
had assaulted demonstrators in the presence of police. On 
these occasions it was alleged nothing was done by the white 
policemen to protect the demonstrators. For example, on 
the occasion of the picketing of a business establishment 
(The Winn-Dixie store), a protest against alleged racial 
discrimination in hiring, white persons driving a truck 
harassed the picketers, but no action was taken against 
them by police officers. On the other hand, the Negro 
picketers were arrested, allegedly for disobeying an officer 
(R. 481-482).

The appellees-defendants in the injunction action intro­
duced testimony that gave a substantially different version 
of the various events. Chief Josey testified that he did not 
see the initial assault against Maxim Rice, but that when 
he observed it going on he took immediate action, pulled 
the assailant off Rice and arrested him (R. 115-18).

In support of the counterclaim, witnesses testified that 
the city had made every effort to provide demonstrators 
with full protection (R. 347-50); that the police force was 
limited and that the city was forced to call in from time 
to time other law enforcement officials to give aid (R. 460- 
61). Further, it was testified that demonstrators had failed 
to follow parade routes agreed upon, and this had made it 
more difficult to provide police protection (R. 368-72).



12

3 .  The Disposition by the District Court

In the removal cases the District Court made no findings 
of fact or conclusions of law, but merely stated:

In Criminal Case No. 1734 and Criminal Case No. 
1735, the evidence is conclusive that these are not among 
the type of cases which are subject to being removed 
from the State Courts to the Federal Courts, therefore, 
it is Ordered and Adjudged that all of the defendants 
listed in Criminal Cases Nos. 1734 and 1735 be re­
manded by this Court to the Recorder’s Court, City of 
Dublin, Georgia . . . (R. 102-103).

As to the injunction action, the judge found that the 
plaintiffs had not proved by a preponderance of evidence 
that the defendant Josey had been guilty of any act or acts 
complained of in the petition. To the contrary, the judge 
found that all rights due to the petitioners had been granted, 
and that more than adequate police protection had been 
afforded them.

With regard to the cross-action on the part of the Chief 
of Police, the court found that the entire activity of the 
plaintiffs was “an effort to harass and embarrass” the de­
fendant. Further, the court found that in many instances 
the marches, demonstrations, and picketing were conducted 
“in an unreasonable manner not within the contemplation 
of the guarantee of freedom of speech and assembly” (R. 
104). On the basis of the evidence, the court enjoined the 
plaintiffs and all persons in their class, including the Dublin 
Chapter of the NAACP and SCOPE, from:

Picketing, demonstrating, marching or parading in 
any manner throughout the City of Dublin, except as 
provided by the Ordinances of the City of Dublin, and



13

under such reasonable regulations and controls as may 
be set up by the Mayor and Board of Aldermen of the 
City of Dublin and the concurrence of the City Man­
ager (R. 104).

Timely notices of appeal were filed from the order re­
manding the two sets of prosecutions (R. 48-49, 73) and 
from the order denying the plaintiff's’ motion for prelimi­
nary injunction and entering a final order and judgment in 
favor of defendant on his counterclaim (R. 106).

Specifications o f  Errors

1. The Court below erred in remanding to the Recorder’s 
Court the prosecutions removed in Nos. 22923 and 22924 
in view of the allegations of the removal petitions and the 
evidence presented in their support by appellants-peti- 
tioners below. 2

2. The Court erred in enjoining the appellants-plaintiffs 
in No. 23546 from conducting any demonstrations, marches 
or picketing unless they complied with the ordinances of 
the City of Dublin, Georgia, since the said ordinances vio­
late the Fourteenth and First Amendments to the Constitu­
tion of the United States.



14

A R G U M E N T

I.

In Light o f the Allegations o f Their Removal Petitions 
and the Evidence They Introduced at the Hearing Below, 
Appellants-Petitioners Were Entitled to Removal, or at 
Least to Full Findings o f Fact.

In their removal petitions appellants alleged that the 
purpose of the picketing of Todd’s Sinclair Service Station 
was to gain equal access to a place of public accommodation 
covered by the Civil Rights Act of 1964 (R. 6-7, 50-51). 
Therefore, their arrests and threatened prosecutions were 
to punish them for attempting to exercise rights secured 
by that act (R. 7, 52). At the hearing below and in their 
affidavits, the appellants presented evidence which fully 
supported these allegations. Thus, appellant Gamble tes­
tified as to the purpose of the picketing (R. 537), and he 
and other witnesses stated that the picketing was peaceful 
and orderly, consisting of up to 25 persons, and did not 
block or hinder the flow of traffic (R. 537, 504-05, 490, 531- 
32).

Appellants contend that their allegations and the evi­
dence they presented bring them within the scope of the 
decision of the United States Supreme Court in the case 
of Georgia v. Rachel, 384 U. S. 780 (1966); and that, there­
fore, if their version of the evidence is accepted as true, 
they are entitled to have their prosecutions removed and 
subsequently dismissed by the District Court.

The opinion of the District Court below merely stated 
that, “the evidence is conclusive that these are not among



15

the type of cases which are subject to being removed” (R. 
102), and remanded the prosecutions. However, since there 
were no findings of fact or conclusions of law, the Court’s 
decision could have been based on one of two grounds. 
The first would have been that the Court disbelieved the 
appellants’ evidence and therefore felt either that there had 
been no discrimination on the basis of race on the part of 
the service station or that the appellants were being prose­
cuted for a valid reason unrelated to their efforts to deseg­
regate the service station. On the other hand, the District 
Court could have accepted the evidence of appellants, but 
concluded as a matter of law that the prosecutions were 
not removable. Appellants contend that a decision based 
on the second alternative would have been in error and that 
therefore this Court should,■ at the least, vacate the order 
and remand the case for findings of fact.

Georgia v. Rachel, 384 U. S. 780 (1966), established that 
a person attempting to exercise or to gain rights or priv­
ileges secured by Section 201 of the Civil Rights Act of 
1964, was insulated from any attempt to punish him by 
Section 203(c). Therefore, if a prosecution was instituted 
against him for an attempt to gain equal access to a place 
of public accommodation, he was entitled to remove the 
prosecution to a federal district court and have it dismissed. 
The decision in Rachel relied principally on Hamm v. City 
of Rock Hill and Lupper v. Arkansas, 379 IT. S. 306 (1964), 
and subsequent decisions. Therefore, to determine whether 
the activities of the appellants here were protected by the 
Civil Rights Act of 1964, the cases prior to Rachel must be 
examined.

Appellants contend that their acts fall well within the 
scope of the decisions in Rloiv v. North Carolina, 379 U. S.



16

684 (1965), and McKinnie v. Tennessee, 380 U. S. 449 
(1965). In Blow, two Negroes, accompanied by 35 to 40 
others, approached a restaurant in North Carolina that 
served whites only and that carried a sign to that effect on 
its front door. The owner locked the door against the 
Negroes but opened it, from time to time, to admit white 
customers. Some of the Negroes waited outside on a shrub­
bery box about 6 or 8 feet away, while others remained at 
a distance of up to 15 feet. Although they were asked to 
leave, they continued to wait quietly outside until they 
were arrested. Subsequently they were indicted and con­
victed for trespass. In its opinion, the Supreme Court 
found that the restaurant was covered by the Civil Rights 
Act of 1964 and, therefore, on the basis of Hamm, the 
judgments were vacated and the indictments were ordered 
dismissed.

In the McKinnie case the facts, as set out in the judgment 
of the Supreme Court of Tennessee, 214 Tenn. 195, 379 
S. W. 2d 214 (1964), were as follows. The defendants were 
eight Negroes who attempted to gain admittance to the 
B & W Cafeteria in Nashville, Tennessee. All eight entered 
a small vestibule of about six feet by six feet at the cafe­
teria entrance, but were barred from entering the main 
part of the restaurant by a doorman. They remained in 
the vestibule for a period of from 20 minutes to a half hour, 
and the Tennessee Court found that they physically blocked 
the entrance so that entrance to and exit from the restau­
rant was not possible without great effort. There was some 
pushing and shoving going on in the vestibule, and a few 
white persons did manage to squeeze their way either in 
or out. At one point, there were as many as 75 people on 
the outside of the cafeteria attempting to get in while the 
defendants were in the vestibule. The police were sum­



17

moned and the defendants were subsequently convicted of 
the crime of conspiring to commit an act injurious to trade 
or commerce under provisions of the Tennessee Code. On 
writ of certiorari, the Supreme Court reversed in a per 
curiam, decision which merely cited the decision in Hamm 
and Lupper.

In the present case, there is no question that the service 
station is an establishment covered by the Civil Rights Act 
of 1964. Service stations are specifically named in Section 
201; the Sinclair company is a nation-wide chain, and it was 
admitted below that Todd’s Sinclair was on a major high­
way (R. 94). There was testimony that the proprietors of 
the service station discriminated against at least a portion 
of the Negro community because of their race (R. 537). 
Finally, the conduct of the appellants, at least on the basis 
of their evidence, was protected.

They testified that there were up to 25 persons picketing 
to urge that they be granted the right to use the facilities 
of the service station on an equal basis. Further, it was 
said, the picketing was peaceful and did not block traffic. 
Hamm and Rachel make it clear that if appellants had made 
a direct attempt to use the facilities,' e.g., by driving auto­
mobiles onto the service station’s property, parking them 
in front of gas pumps, and refusing to leave unless they 
were served, their conduct would be protected despite the 
total blockage of the driveways to the service station and 
the complete disruption of the station’s business. It would 
be anomalous, to say the least, to hold that a much more 
moderate course of action, consisting of a peaceful attempt 
to persuade the gas station proprietors to act in con­
formance with federal law, would not be protected.

Indeed, it can be argued that the appellants-petitioners’ 
conduct was protected even if the appellees-respondents’



18

version of the occurrences at the service station are ac­
cepted. Generally, the evidence presented by the appellees 
indicated that there were from forty to fifty pickets, that 
ingress and egress to the station was blocked, and that 
there was interference with traffic (see, answer and coun­
terclaim of defendant, E. 93-94). However,- in Blow there 
were 40 persons standing in front of a restaurant en­
trance, and in McKinnie the entrance was almost completely 
blocked and a large crowd of persons who wished to enter 
gathered on the sidewalk, obstructing it. In view of the 
Supreme Court’s reversal of the convictions in those cases, 
appellants are entitled to have their prosecutions dismissed. 
At the very least, the District Court should be instructed 
to make findings of fact as to what did in fact occur at and 
near the service station and to dispose of the prosecutions 
depending, on the basis of those facts, whether the decision 
in Rachel or that in City of Greenwood v. Peacock, 384 
U. S. 808 (1966) governs.13

II.

The Ordinances o f the City o f Dublin With W hich the 
District Court’s Injunction Required Appellants to 
Comply Violate the First and Fourteenth Amendments 
to the Constitution.

In its order, the District Court enjoined the appellants 
in No. 23546 from carrying on any demonstrations, picket­
ing, marching or parading in any manner except as pro­
vided by the ordinances of the City of Dublin and under 
such “reasonable regulations and controls” as might be 
established by the city government (E. 104). The ordi-

la Cf., this Court’s order in McGee v. City of Meridian, 359 F 2d 
846 (5th Cir. 1966).



19

nances to which the Court referred were challenged below 
by the appellants as violating the Fourteenth and First 
Amendments to the Constitution of the United States (R, 
108-109, 539-540).2

However, it is clear that if a parade ordinance is un­
constitutional, it need not be complied with or a permit be 
applied for under its provisions. See, Lovell v. Griffin, 
303 U. S. 444 (1938); Cox v. New Hampshire, 312 U. S. 
569, 577 (1941). Therefore, if the ordinances of the City of 
Dublin are unconstitutional, the District Court could not 
require that appellants comply with them before they ex­
ercised their constitutionally protected rights of free speech 
and assembly. Rather, the District Court should have 
granted the further relief requested by the appellees-de- 
fendants in their counterclaim (R. 97) and issued an order 
setting up guidelines and regulations as to how often dem­
onstrations could be carried on, how many persons might 
participate, and the times and manner in which the dem­
onstrations could take place, following the standards set 
up by this Court in the case of Kelly v. Page, 335 F. 2d 114, 
118-19 (5th Cir. 1964).3

For a parade ordinance to be valid, it must set out with 
sufficient specificity the standards Avhich govern the issu­
ance of a permit. Moreover, those standards must be ob­

2 The full text of the ordinances in question is set out in the 
Appendix infra.

3 It may be noted that the Dublin ordinance is strikingly similar 
to the one involved in Kelly. See, 9 R. Rel. L. Rep. 1128. “All 
parades, demonstrations or public addresses on the streets are 
hereby prohibited, except with the written consent of the City 
Manager;” and substantially the same as the one recently struck 
down by the Supreme Court of Mississippi in King v. City of 
Clarksdale, 186 So. 2d 228 (Miss. 1966).



20

jective and relate to such questions as time, place and 
manner of conducting the demonstrations. Cox v. New 
Hampshire, 312 U. S. 569 (1941). Moreover, it must pro­
vide for a prompt judicial review of a denial of a permit 
in order further to prevent arbitrary action by city officials 
that unduly delays the exercise of First Amendment rights. 
Cf., Freedman v. Maryland, 380 U. S. 51, 59-60 (1965).

The parade ordinance of the City of Dublin, however, 
fails to comply with any of these standards. It only states:

In order to provide for the orderly ingress and egress 
of citizens through and upon the streets of the city, 
all parades, demonstrations, and addresses on the 
streets are hereby prohibited, except by written con­
sent of the City Manager. (Section 26-21, Code of 
Ordinances of the City of Dublin) (R. 540)

This section flatly prohibits all demonstrations, parades, 
and addresses, subject to the city manager’s unbridled dis­
cretion to grant or deny consent to carry on a demonstra­
tion depending on whether he approves or disapproves of it. 
There is no definition of what constitutes a parade, dem­
onstration or address and therefore no notice is given as 
to when a permit is required. E.g., it is not clear whether 
picketing is included at all, or whether at some point 
picketing by a certain number of persons becomes a parade. 
Similarly, it is not clear how many persons must be involved 
before any activity is covered. Since there are no standards 
as to the permissible time of demonstrations, number of 
participants, size of placards, etc., there is, in effect, no 
objective controls on the city manager’s determination that 
“ingress and egress” may be interfered with. Thus, the



21

ordinance both fails to give fair notice of its compass (see, 
Herndon v. Lowry, 301 U. S. 242, 261-62 (1937)) and is 
“susceptible of sweeping and improper application,” 
NAACP v. Button, 371 U. S. 415, 433 (1963). The absence 
of provisions specifying the contents of an application for 
a permit to carry on a demonstration compounds the prob­
lems of those attempting to exercise their constitutional 
rights.

Because of the absence of standards that are to govern 
the action of the city manager, there is no basis by which 
any reviewing agency or court can pass on his determina­
tion. In addition, there is no provision for an expeditious 
appeal of a denial of a parade permit, with the result that 
he may bar the effective exercise of the rights of free 
speech and free assembly for an indefinite length of time. 
See, Freedman v. Maryland, supra.

The remainder of the Court’s order, which requires the 
appellant to comply with any other “reasonable” regula­
tions that may be set up, is similarly defective. It fails to 
set out any governing standards to guide either the appel­
lants or the city in deciding whether a demonstration or 
picketing is to be allowed.

CONCLUSION

For the foregoing reasons, the order of the District Court 
should be vacated and the action remanded with instruc­
tions that in Nos. 22923 and 22924 the Court either accept 
jurisdiction of the criminal prosecutions and dismiss the 
same or make findings of fact to determine whether the 
appellants’ conduct is protected under the Civil Bights Act



22

of 1964, and that in No. 23546 the Court issue an order 
setting out in detail the terms under which appellants may 
conduct demonstrations.

Respectfully submitted,

H owakd M oore, J r.
8591/2 Hunter Street, N. W. 
Atlanta, Georgia

T homas J ackson

755 Monroe Street 
Macon, Georgia

J ack Greenberg 
Charles S t e ph e n  R alston 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

CERTIFICATE OF SERVICE

I hereby certify that on November , 1966, I served a 
copy of the foregoing Brief for Appellants upon the at­
torney for appellees by depositing the same in United 
States mail, postage prepaid, addressed to the Honorable 
Beverly B. Hayes, Attorney at Law, Dublin, Georgia.

Attorney for Appellant,



APPENDIX



APPENDIX

Ordinances o f the City o f Dublin

Section 26-21. Permit required for parades, demonstra­
tions, and public addresses on streets: In order to provide 
for the orderly ingress and egress of citizens through and 
upon the streets of the city, all parades, demonstrations, 
and addresses on the streets are hereby prohibited, except 
by written consent of the City Manager.

Section 26-22. Assemblies obstructing streets, public 
places, prohibited. It shall be unlawful for any person to 
assemble in a crowd so as in any manner obstruct the street 
passage of the streets, side walks, public ways and public 
grounds in the city. Each person forming a part of such 
assemblage, after noticed by a duly constituted law officer 
having jurisdiction, shall be guilty of a misdemeanor.

Section 1-8. General Penalty, Continuing Violations: 
Any person guilty of the violation of the provisions of this 
Code, Ordinance of the City of Dublin, or doing any act 
within the city prohibited by this Code, or an Ordinance 
of the City, or failing to perform any duty required by 
same, unless otherwise provided, shall be guilty of a mis­
demeanor, and shall be punished at the discretion of the 
court by a fine not exceeding $200.00 or by imprisonment 
for a term not exceeding thirty (30) days or in lieu of fine 
or imprisonment shall be sentenced to labor upon the streets 
and side walks and other public works of the city for a term 
not exceeding ninety days. The sentence may be in the 
alternative in which ease if the fine and costs are not paid 
the defendant will serve the sentence of imprisonment or 
labor. Each day any violation of this Code or any Ordinance 
[occurs] shall constitute a separate offense.



38