Abernathy v. Conroy

• Decision Date: 21 July 1970
• Docket Number: No. 13933.,13933.
• Citation: 429 F.2d 1170
• Parties: Ralph D. ABERNATHY, Hosea L. Williams, David Bright, Elijah Pearison and Andrew J. Young, on their own behalf and on behalf of all others similarly situated, Appellants, v. John F. CONROY, Chief of Police of the City of Charleston, Morris D. Rosen, Corporation Counsel of the City of Charleston, Robert B. Wallace, Solicitor, Ninth Judicial Circuit, State of South Carolina, and Donald B. Barkowitz, Magistrate, Charleston County, their agents, servants, successors and assigns, and all those acting in concert with them or under their direction, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

429 F.2d 1170 (1970)

Ralph D. ABERNATHY, Hosea L. Williams, David Bright, Elijah Pearison and Andrew J. Young, on their own behalf and on behalf of all others similarly situated, Appellants, v. John F. CONROY, Chief of Police of the City of Charleston, Morris D. Rosen, Corporation Counsel of the City of Charleston, Robert B. Wallace, Solicitor, Ninth Judicial Circuit, State of South Carolina, and Donald B. Barkowitz, Magistrate, Charleston County, their agents, servants, successors and assigns, and all those acting in concert with them or under their direction, Appellees.

No. 13933.

United States Court of Appeals, Fourth Circuit.

Argued May 4, 1970.

Decided July 21, 1970.

Melvyn Zarr, New York City (Jack Greenberg, New York City, Fred Henderson Moore, Russell Brown, George A. Payton, Jr., Charleston, S. C., and Anthony G. Amsterdam, Stanford, Cal., on brief), for appellants.

Joseph C. Coleman, and Robert H. Hood, Asst. Attys. Gen. of South Carolina, and I. M. Goldberg, Asst. Corp. Counsel, City of Charleston (Daniel R. McLeod, Atty. Gen., of South Carolina, Morris D. Rosen, Corp. Counsel, and Henry S. Smythe, Asst. Corp. Counsel, City of Charleston, on brief), for appellees.

Before BOREMAN, WINTER and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

Plaintiffs challenge as facially unconstitutional a parade ordinance of Charleston, South Carolina, and the South Carolina common law of riot. The district court denied their motion for a three-judge court and preliminary injunction and dismissed their complaint. We affirm.

I.

Plaintiffs alleged these facts, which, in the posture of the case, must be taken as true. On June 20, 1969, at about 11:30 p. m., plaintiffs Abernathy, Williams, Bright, and Pearison, officers of the Southern Christian Leadership Conference, assembled at the Memorial Baptist Church in Charleston, South Carolina, with about 250 of their followers. They intended to walk about four blocks to a park and there conduct a prayer vigil. The prayer vigil was to be a protest against racial discrimination in employment at the South Carolina Medical College and the Charleston County Hospital. Plaintiffs had been holding similar peaceful protests for the same purpose throughout the spring of 1969.

On the night in question plaintiffs counseled the persons who met at the church about S.C.L.C.'s nonviolent tradition, and the group set out for the park. The march had proceeded about two blocks when defendant Conroy, the Charleston Chief of Police, told Abernathy to stop the procession. Abernathy complied, and Conroy informed the marchers that they could proceed no farther because they did not have a parade permit. Plaintiffs and their associates had applied for and received permits in Charleston for previous assemblies and processions, but did not apply for one on this occasion because Section 31-195 of the Charleston City Code expressly prohibits the granting of a permit to parade after 8 p. m.¹

Abernathy asked Conroy whether the group could split up and walk the remaining distance to the park in small groups or singly in order to avoid the prohibition of the ordinance. Conroy told Abernathy that neither he nor any member of his group could continue to the park for the prayer vigil. Abernathy and the others immediately knelt in the street, and Abernathy began leading the others in prayer. Conroy ordered them to stop. Abernathy refused and admonished him not to interrupt the praying.

Three or four policemen then seized Abernathy and carried him to a police vehicle. The police also arrested Williams, Bright, and Pearison. The authorities charged all four men with riot; and at a preliminary hearing on June 21, 1969, a state court ordered them jailed in lieu of $50,000 bond each.² The authorities also charged them with parading without a permit.

Plaintiffs brought this suit in federal court seeking declaratory and injunctive relief. 42 U.S.C. § 1983 (1964). They contend that Section 31-195 of the Charleston City Code arbitrarily suspends the exercise of a citizen's first and fourteenth amendment rights at 8 p. m. They further contend that the common law offense of riot³ and S.C. Code § 16-113.1 (1962),⁴ which prescribes punishment for various degrees of the common law offense, violate the freedom of speech clause of the first amendment and the due process clause of the fourteenth amendment because of vagueness and overbreadth.

The district court refused to certify the case as appropriate for a three-judge court and refused to grant the relief plaintiffs requested. It is not entirely clear precisely what relief was sought. The prayer for injunction was in general terms asking that the court restrain "the defendants from enforcing the state laws * * *." Unless it was embraced in these general terms, there was no request that the prosecutions pending in the state court be prevented.⁵ Since we are advised that there was an agreement to suspend the pending criminal proceedings in the state court until this appeal had been heard and decided, we read the general language of the complaint as not seeking injunctive relief against the threatened prosecutions. Thus we need not consider the impact of 28 U.S.C. § 2283 (1964) (anti-injunction statute).

We must also mention another limitation on our consideration of the case. Plaintiffs insistently adhere to their position that they seek only a declaration of the facial unconstitutionality of the parade ordinance and the common law crime of riot as defined in South Carolina. They flatly disclaim any implication from their complaint that the ordinance and riot law, if facially valid, were unconstitutionally enforced against them. Plaintiffs believe the Charleston officials arrested them in good faith because the officials regarded their activities as in violation of the law, not in bad faith to harass their exercise of protected expression without any intention of pressing the charges or expectation of obtaining convictions. Therefore, since there is no attempt to bring the case within the doctrine of Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed. 2d 182 (1968), this is not a situation in which "a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford appellants any protection which they could not secure by prompt trial and appeal pursued to the Supreme Court." 390 U.S. at 620, 88 S.Ct. at 1340. Douglas v. City of Jeanette, 319 U.S. 157, 164, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). Compare Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Wright v. Georgia, 373 U.S. 284, 83 S. Ct. 1240, 10 L.Ed.2d 349 (1963); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963). Their disclaimer here of bad faith would not, of course, bar the imposition of such a defense in the state court under the general denial of a not guilty plea.

II.

A. The Parade Ordinance

Plaintiffs contend that Charleston's absolute prohibition of peaceful parades after 8 p. m. violates their right to peacefully assemble and petition the government for redress of grievances. The ordinance is said to extend too far in limiting the exercise of recognized first amendment rights because it makes no accommodation for the need of groups to march after 8 p. m. Plaintiffs claim that working people cannot march if their parades must be concluded before 8 p. m., because these people do not leave work until about 5 p. m., and then must go home, eat supper, attend to their children, assemble for the march, and receive instruction in S.C.L.C.'s nonviolent tradition before the parade can begin. Thus, practical limitations on daytime participation and Charleston's flat prohibition against parades after 8 p. m. arguably work in concert to exclude working people from parades altogether.

Accepting plaintiffs' contentions as true, we nevertheless conclude that the Charleston parade ordinance is constitutional. Peaceful picketing and parading are methods of expression entitled to first amendment protection, but they are methods subject to greater regulation than other forms of expression.⁶ This is not because marching as a means of communication differs in constitutional kind from "purer" forms of speech, such as verbal expression,⁷ but because unlike verbal expression the form that parading takes more often brings it into competition with legitimate non-speech interests, which the state has a right to protect.⁸ When this occurs, accommodation of the competing interests involved often means that the right to parade must yield to reasonable state regulation of time, place, manner, and duration.⁹

The question in this case, then, is whether Charleston has exercised its right to regulate marches "so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places."¹⁰ In resolving this question we must balance the inconvenience of forcing plaintiffs and their followers to parade only on weekends and late daylight hours against the interests of Charleston in limiting parades to the hours between 8 a. m. and 8 p. m. We see Charleston's interests as substantial.

The evening is traditionally a time of repose, when people retire to their homes for relaxation. There is a significant state interest in preserving reasonable serenity during this period for the mutual benefit of all citizens.¹¹ Yet protesters utilize marches precisely because they offer publicity advantages over other means of expression.¹² It is the very purpose of parades to attract public attention,¹³ and few parades are so quiet that they go unnoticed. To the extent that they may be noisy there is conflict with the city's interest in preserving peace and good order at night.¹⁴ Restricting parades to daylight hours in order to accomplish this legitimate end is not an unreasonable limitation upon the right of free...