385 F.2d 734 (5th Cir. 1967), 21475, United States v. McLeod

Docket Nº:21475, 21477.
Citation:385 F.2d 734
Party Name:UNITED STATES of America, Appellant, v. Blanchard McLEOD et al., Appellees. UNITED STATES of America, Appellant, v. DALLAS COUNTY et al., Appellees.
Case Date:October 16, 1967
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 734

385 F.2d 734 (5th Cir. 1967)

UNITED STATES of America, Appellant,

v.

Blanchard McLEOD et al., Appellees.

UNITED STATES of America, Appellant,

v.

DALLAS COUNTY et al., Appellees.

Nos. 21475, 21477.

United States Court of Appeals, Fifth Circuit.

October 16, 1967

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Harold H. Greene, John Doar, David L. Norman, Attys., Dept. of Justice, Washington, D.C., Vernol R. Jansen, Jr., U.S. Atty., Mobile, Ala., for appellant.

T. G. Gayle, J. E. Wilkinson, Jr., Selma, Ala., Wm. McLean Pitts, Selma, Ala., Richmond M. Flowers, Atty. Gen., Gordon Madison, Asst. Atty. Gen., Montgomery, Ala., for appellees.

Before WOODBURY, [*] WISDOM and BELL, Circuit Judges.

WISDOM, Circuit Judge:

These cases are the product of the racial unrest in 1963 in Dallas County, Alabama, of which Selma is the county seat. 'Yet Selma was different from the usual clash between police in the South and protesting groups of Negroes and civil rights workers. For out of Selma grew the Voting Rights of 1965.' 1

The Dallas County Voters League was organized to encourage local Negroes to register and vote. Early in 1963, at the request of the Voters League, the Student Nonviolent Coordinating Committee sent volunteers to Selma to aid in the registration drive. One of the main projects of the Voters League was the sponsorship of voting clinics. To publicize these clinics, the Voters League began in May 1963 to sponsor mass meetings at local Negro churches. The League distributed literature urging Dallas County Negroes to register to vote and kept records of the successful and unsuccessful applicants.

By special arrangement Sheriff James G. Clark was in charge of the Selma police with regard to racial matters. Sheriff Clark stationed officers--deputy sheriffs, members of the sheriff's posse, and local police-- in and around the various mass meetings. These officers made notes during the meetings, took down the license numbers of cars in the area, and spoke with each other and with the sheriff's office by portable two-way radio.

June 17, 1963, Bosie Reese, a young local volunteer worker, went to the Dallas County Courthouse to interview some of the people waiting in the registration line. He testified that his purpose was to obtain names and addresses for the records kept by the Voters League. 2 Sheriff Clark testified that Reese was 'molesting' the registration line and that he told the young Negro to leave the Courthouse. The evidence is in conflict whether Reese did in fact leave the

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Courthouse; but some time later, in the Courthouse, sheriff Clark arrested him for disobeying his order to leave. County officials changed the charge to disturbing the peace and resisting arrest. Reese was tried and convicted of the two offenses. The trial judge, a defendant in this case, 3 sentenced him to pay a fine of two hundred dollars plus costs.

The day after Reese was arrested, Sheriff Clark swore out a warrant for the arrest of Bernard Lafayette, a field secretary for SNCC who was in charge of the Dallas County voting drive. The charge: vagrancy. Sheriff Clark testified that he was not aware that Lafayette had any visible means of support and that he had confidential reports that Lafayette, an able-bodied man, had been seen begging. 4 The Sheriff candidly admitted that he had engaged in no further investigation with respect to these charges. When the police booked Lafayette at the county jail, he had nearly thirty dollars in cash in his pockets. Nevertheless, Dallas County officials prosecuted Lafayette for vagrancy. He was acquitted upon his testimony that the SNCC paid his living expenses.

June 26, 1963, the United States filed a complaint in United States v. Dallas County. It alleged that the surveillance of the meetings, along with the arrest and prosecution of Reese and Lafayette tended to threaten and coerce the Negro citizens of Dallas County in the exercise of their right to vote, and that the county officials intended their acts to have just that effect. The complaint prayed that the same and similar acts be enjoined as in violation of the Civil Rights Act of 1957, 42 U.S.C. § 1971(b). 5

Before the case came on for hearing, Sheriff Clark, patrolling in the vicinity of a mass meeting, stopped one of the workers, Alexander Brown, for driving a car with only one headlight operating . Clark asked Brown his name, and Brown replied, 'Brown'. Then Clark asked for Brown's driver's license. The name in which the license was issued was Alexander Love. Sheriff Clark promptly arrested Brown for concealing his identity. 6

Brown attempted to explain the discrepancy to Sheriff Clark at the time of his arrest; but the Sheriff would not listen. He was not interested in explanations, he testified. Brown found that the other county officials with whom he was forced to deal had no more interest than the Sheriff. Eventually Brown was tried and acquitted of the offense of concealing his identity. 7

United States v. Dallas County came on for a hearing in the United States District Court for the Southern District of Alabama July 25, 1963. At the conclusion of that day's hearings, the trial judge continued the case. The hearing was resumed and completed October 15, 1963.

Meanwhile, July 29, 1963, officials of the Sheriff's office arrested twenty-nine Negroes who were attending a registration meeting. In each case the charge was operating a motor vehicle with improper license-plate lights. In September and early October the streets of Selma saw several large scale demonstrations

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relating to voter registration and equal access to public accommodations. Local officials arrested large numbers of Negro demonstrators, both juveniles and adults. The United States, contending that the September and October arrests and prosecutions were relevant to the likelihood that the defendants would continue their coercive activity, sought to introduce evidence of these intervening arrests at the October 15 hearing. The trial judge excluded this evidence on the ground that events occurring after the first hearing in the case were not admissible.

The evening of the final hearing in Dallas County, October 15, 1963, Dr. Martin Luther King delivered an address in Selma. Shortly thereafter various Alabama officials charged that a Justice Department lawyer had transported Dr. King from Birmingham to Selma in a rented car paid for by the federal government. After an initial denial, the Justice Department admitted the substance of the charges. November 4, 1963, the Dallas County Grand Jury subpoenaed a number of lawyers from the Civil Right Division of the Justice Department to appear before it November 13. It subpoenaed a number of Negroes active in the voter drive as well. November 12, the United States filed its complaint in United States v. McLeod, seeking to enjoin the Grand Jury and other county officials from compelling the government lawyers to appear. The complaint alleges that the mass arrests of September and October, together with the action of the Grand Jury in subpoenaeing Justice Department lawyers and Negroes active in the voter registration drive, intimated Negroes with respect to their right to vote in violation of 42 U.S.C. § 1971(b). The United States asked for an injunction to prevent county officials from continuing their coercive actions.

The district court denied relief in both cases. In Dallas County it found that each of the allegedly coercive acts was justified-- that the surveillance of the mass meetings was necessary to keep order and to protect the Negroes; that Sheriff Clark had probable cause to believe Bernard Lafayette was a vagrant; that Bosie Reese 'was in fact molesting the voter registration line in that he was requesting information of persons therein * * *'; 8 and that Alexander Brown was in fact using an alias. The district judge concluded 'that no federal constitutional rights of those for whom the plaintiff sues have been violated in any way * * *'. United States v. Dallas County, S.D.Ala.1964, 229 F.Supp. 1014, 1018. 'This court is of the opinion,' he added, 'that the plaintiff has failed in its proof * * *'. Ibid.

In McLeod the district court disposed of the section 1971(b) count with no discussion other than to say, 'Since the Dallas County case does deal with and dispose of that aspect, the Court will here confine itself * * * to the Dallas County Grand Jury phase of the case.' 9 With regard to that phase of the case the district judge held that the court could not interfere with a ground jury operating in good faith; that the Dallas County Grand Jury was in fact investigating in good faith; and that it could therefore compel the Civil Rights Division lawyers to appear before it.

Since the natural division lies along the line of issues rather than along the line of cases, we discuss together the arrests and prosecutions alleged and proved in both cases, and then the grand jury aspect peculiar to the McLeod case.

I.

The Civil Rights Act of 1957 makes it unlawful for any person 'to intimidate, threaten, or coerce any other

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person for the purpose of interfering with the right of such other person to vote or to vote as he may choose'. 42 U.S.C. § 1971(b). The trial judge did not decide the case on this statutory standard. Rather, he ruled that no federal constitutional rights had been violated. It is clear, however, that acts may violate section 1971(b) even though they deprive no one of his constitutional rights. Acts otherwise entirely within the law may violate the statute if they have the proscribed effect and purpose. United States by Katzenbach v. Original Knights of the Ku Klux Klan, E.D.La.1965...

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