Smith v. Grady, 25351.

• Citation: 411 F.2d 181
• Decision Date: 15 May 1969
• Docket Number: No. 25351.,25351.
• Parties: C. E. SMITH, individually and on behalf of all others similarly situated, Appellant, v. Paul E. GRADY, Mayor of the City of Hattiesburg, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

411 F.2d 181 (1969)

C. E. SMITH, individually and on behalf of all others similarly situated, Appellant, v. Paul E. GRADY, Mayor of the City of Hattiesburg, et al., Appellees.

No. 25351.

United States Court of Appeals Fifth Circuit.

May 15, 1969.

Denison Ray, L. A. Aschenbrenner, Elliott C. Lichtman, Lawrence D. Ross, Jackson, Miss., for appellant.

Frank D. Montague, Jr., Hattiesburg, Miss., Will S. Wells, Asst. Atty. Gen., Jackson, Miss., for appellees.

Before COLEMAN and GOLDBERG, Circuit Judges, and SKELTON, Judge of Court of Claims.^*

COLEMAN, Circuit Judge.

In a class action alleging infringement of First Amendment rights as to picketing in support of an economic boycott against certain stores in Hattiesburg, Mississippi, appellant was granted a temporary injunction by the District Court for the Southern District of Mississippi. Because all the relief prayed for was not granted this appeal was perfected. Treating the matter purely within the context of a temporary injunction, which is all that we have before us, we affirm the action of the court below, with one modification, and remand the case.

On July 24, 1967, a class action complaint was filed under 42 U.S.C. §§ 1981, 1983, and 1985, for a temporary restraining order, a preliminary and a permanent injunction, and other equitable relief, to enjoin the deprivation, under color of law, of plaintiffs' rights, privileges and immunities guaranteed by the Constitution and laws of the United States.

The complaint alleged that on July 18, 1967, "plaintiff and his class the Hattiesburg Chapter of the N.A.A.C.P. voted to conduct an economic boycott of the downtown businesses of the City Hattiesburg, of certain public services of the City, and of certain other merchants. Plaintiff and plaintiff's class have publicized the boycott by an orderly march along public streets on July 18, peaceful picketing of several stores and by word of mouth, all of which has been done in the public streets and in public places of the City".

This, alleged the complaint, had resulted in the arrest of numerous members of the class on July 21 and July 22, 1967, without any basis in fact and solely for the purpose of punishing the participants for and deterring them from "the exercise of their Constitutional rights to peacefully protest discrimination and to conduct a boycott which seeks to publicize, and to remedy, the denial of the equal civil rights in the City and in Forrest County".

The complaint then described in considerable detail the allegedly unlawful arrests and concluded by praying for relief as above mentioned.

For two days the District Court heard evidence directed solely to the issue of whether a preliminary injunction should issue. Some idea of the extent of the hearing is to be found in the fact that the reported testimony comprises 593 typewritten pages.

In an eight page written opinion, reserving until a later date formal findings of fact and a written opinion, the Court, inter alia, temporarily decreed as follows:

"(1) The defendants shall respect the right of the plaintiffs to peaceful picketing as hereinafter defined. These plaintiffs shall have the right to air their differences and express their views publicly, whether popular or not, within the full sweep of the First Amendment of the Constitution of the United States, but that right shall not overrun or invade the rights of others. The right of peaceable assemblage must not be abridged or infringed, but peaceful picketing must be properly understood and not abused. Wellwishers of pickets should not congregate on, or near private businesses being picketed, or violate any rule against peaceful picketing, or interfere with pedestrian or vehicular ingress or egress to or parking at any business.

"(2) The plaintiffs shall have and enjoy the right to peaceful picketing of any business or businesses which they desire to picket in the proper exercise of their First Amendment rights. Peaceful picketing shall consist of not more than six persons operating (back and forth) in one straight line at each site, single file. They may carry banners or placards bearing any inscription of their choice, but shall not utter any sounds, or make any signs or gestures; and, certainly, shall never at any time issue, or utter any threats against anybody for patronizing any lawful business. The pickets shall walk on public property, five or six feet apart at all times and shall not interfere with ingress or egress of pedestrian or vehicular traffic to the establishment or parking thereat. Such conduct when conformed hereto will be treated and considered by this Court as peaceful picketing and within the protection of the order of this Court and not in violation of any law."

The above order was filed August 14, 1967; notice of appeal was given on August 15; and appeal bond was filed August 16. On August 17, Judge Bryan Simpson, of this Court, heard an application for a temporary restraining order pending submission of a Motion for Injunction Pending Appeal to an interim panel of this Court. On August 23, 1967, Judge Simpson filed a written opinion denying relief. After reciting the history of the litigation, Judge Simpson wrote which we consider well worth copying here as follows:

"Beginning with the commencement of the boycott and picketing on July 18, 1967, and up to the time of the institution of the suit below, a number of arrests were made by the City Police of Hattiesburg in connection therewith for violation of two Mississippi statutes: Miss.Code Ann. §§ 2087.7 and 2089.5 (1942). Both sections describe misdemeanors punishable by fine of not more than $500.00, or by imprisonment for not more than six months, or by both such fine and imprisonment. Section 2087.7 prohibits disorderly conduct in or on the premises of another preventing or interfering with the owner-operator of places of business or with customers or with prospective customers or other members of the public then on such premises. Section 2089.5 proscribes disturbances of the public peace or the peace of others by violent, loud, insulting, profane, indecent, offensive or boisterous conduct or language, or by intimidation or seeking to intimidate any other person or persons, or by conduct calculated to provoke a breach of the peace or by conduct which may lead to a breach of the peace. No attack was made on the constitutionality of either statute. emphasis added

"Following the institution of the suit below and prior to the hearing on the Motion for Preliminary Injunction which was held on August 7, 8, 9 and 10, additional arrests ensued. A minimal number of further arrests have taken place since entry of Judge Cox's order. In all, the arrests total 109. Of these cases a number have been disposed of: some by dismissal, some by `passing to the files,' (equivalent to a nolle prosequi), three or four to a judgment of guilty and imposition of sentence, and three or four to discharge upon a finding of not guilty.

"The arrests fall into two main classes: (1) those made by police officers for misdemeanors allegedly committed in their presence, and (2) those made upon sworn affidavits of private citizens. Remaining undisposed of are 78 cases, 19 in category (1) above and 59 in (2) above. The 59 cases on private affidavit have all been indefinitely stayed by the City pending final disposition of this case by Judge Cox.

"Judge Cox's order is explicit in protecting the rights of the class which Plaintiff seeks to represent to continue peaceful picketing, limited to six pickets at each site, marching six feet apart, carrying banners or placards, but not uttering any sounds or making any signs or gestures, not issuing or uttering any threats against anybody for patronizing any lawful business, and not interfering with ingress or egress of pedestrians or vehicular traffic to the establishment or parking thereat. The order instructs the police to continue to make arrests for violation of the law and directs the Police Justice to promptly hear and decide all pending cases on his docket, as well as any future charges filed in his court against members of Plaintiff's class not in violation of the order.

"Involved in the relief sought pending appeal is trial and disposition of the 19 police arrests mentioned above, the banning of future arrests pending disposition of the appeal, and a requirement of change in bail practices.

"Assuming without deciding that proceedings under 42 U.S.C. § 1983 are an exception to the ban of 28 U.S.C. § 2283 against the stay of state court proceedings (see Dombrowski v. Pfiester, 380 U.S. 479 at page 484, 85 S.Ct. 1116, 14 L.Ed.2d 22, and footnote 2 on the same page of the majority opinion, and the comment thereon in Mr. Justice Harlan's dissent at page 502 of 380 U.S., 1129 of 85 S.Ct.) and further assuming without deciding that Dr. Smith, the sole Plaintiff, who has not so far engaged in picketing or been arrested, emphasis added has the standing to invoke § 1983 on behalf of the class which he purports to represent (see in this connection Judge Wisdom's dissent in the Dombrowski case below, 227 F.Supp. 556, at page 582), no showing of irreparable injury is made as to the 19 persons under arrest and scheduled for trial.

"Further, no sufficient showing of the likelihood of irreparable injury is made with respect to prospective arrests under the limited permission to continue to arrest and prosecute as outlined in Judge Cox's order.

"Bail bond originally was uniformly fixed at $500.00 per case with respect to these misdemeanor arrests. On the application made for reduction, the Police Justice directed that in the future bail be required in the amount of $300.00. Further complaint is made that the usual practice of requiring two sureties was increased to a requirement of three sureties, and that one property owner was limited to becoming surety on only two bonds, regardless of the amount of real estate owned as shown by his qualifying...