Baines v. City of Danville

Citation337 F.2d 579
Decision Date10 August 1964
Docket Number9212.,9149,9150,No. 9080-9084,9080-9084
PartiesBruce BAINES et al., Appellants, v. CITY OF DAMVILLE, VIRGINIA, Appellee. The Rev. Lendell W. CHASE et al., Appellants, v. Chief Eugene McCAIN et al., Appellees (two cases). Hildreth G. McGHEE et al., Appellants, v. CITY OF DANVILLE, Appellees. LEWIS et al., Appellants, v. BENNETT et al., Appellees. The Rev. Lendell W. CHASE et al., Appellants, v. Honorable A. M. AIKEN, Judge, Appellee (two cases). Dolores J. PAGE and Margaret P. Dillard, Appellants, v. Chief Eugene McCAIN et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)



Arthur Kinoy, New York City, for appellants in Nos. 9080-9082, 9084, 9149, 9150.

Mrs. Ruth L. Harvey, Danville, Va., for appellants in No. 9083.

William M. Kunstler, New York City, for appellants in Nos. 9080 and 9082.

S. W. Tucker, Richmond, Va., for appellants in Nos. 9080-9084, 9149, 9150.

Morris E. Lasker, New York City, Mrs. Ruth L. Harvey, Danville, Va., and William M. Kunstler, New York City, for appellant in No. 9212 (Len W. Holt, Norfolk, Va., Andrew C. Muse, J. L. William, Harry I. Wood, George Woody, Jr., Danville, Va., Chester Antieau, Shellie F. Bowers, Washington, D. C., Richard Goodman, Dean Robb, Detroit, Mich., Jack Oppenheim, New York City, Ann Cooper, Boston, Mass., Nathan Conyers, Detroit, Mich., E. A. Dawley, Jr., J. A. Jordan, Jr., Norfolk, Va., Erwin Miller, Philadelphia, Pa., George L. Downing, Detroit, Mich., and Bertrand B. Pogrebin, Mineola, N. Y., on briefs).

John W. Carter and James A. H. Ferguson, Danville, Va., for appellees in Nos. 9080-9082, 9084, 9149, 9150 and 9212.

Harold V. Kelly, Asst. Atty. Gen. of Virginia, for appellees in No. 9083.

Before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges, sitting en banc.

HAYNSWORTH, Circuit Judge:

Several different questions are presented by a number of cases arising out of racial demonstrations in Danville, Virginia.

No. 9084 and No. 9150, Chase v. Aiken, No. 9081 and No. 9149, Chase v. McCain, and No. 9212, Page v. McCain, are appeals in plenary actions filed by Negro plaintiffs in the District Court, in which they seek injunctions against their prosecution in the state court upon charges of violations of a state court injunction, of an ordinance limiting the number of participants in demonstrations and picketing activity, and the time and manner in which such activities could be conducted, and of another ordinance preventing parades without a permit. The requests for injunctive relief are based upon allegations that the state court injunction and the ordinances are unconstitutional and invalid. The complaints also request declaratory judgments that the injunction and the ordinances are unconstitutional. The District Judge did not reach the merits, because he concluded that, under the provisions of 28 U.S.C.A. § 2283 and the principles of comity, he should not undertake to enjoin pending criminal proceedings in the state court.

No. 9080, Baines v. City of Danville, and No. 9082, McGhee v. City of Danville, are appeals from orders remanding to the state courts some 105 criminal cases which the defendants had undertaken to remove from the state court to the District Court. There are also petitions for writs of mandmus directed to the District Judge, which seek to present the same question of the propriety of the orders of remand as are tendered by the appeals.

No. 9083, Lewis, et al. v. Bennett, is an appeal from a denial of a temporary restraining order directed to the Virginia Employment Commission preventing it from disqualifying applicants for, or recipients of, unemployment compensation upon the ground that the pendency of criminal charges against them made them unavailable for work within the meaning of the unemployment compensation statute.

The events which underlie these several controversies are not entirely undisputed, and, since the District Judge reached the merits in none of the cases, there are no findings which settle the factual disputes. However, some testimony was taken in some of these cases, and some reference to that testimony and to the factual contentions of the parties seems appropriate.

The Negro appellants contend their demonstrations and picketing had been conducted peaceably and without violence, though a number of them were the victims of police violence on the night of June 10, 1963, when the police employed fire hoses and night sticks against them. On the other hand, city and court officials contend that the demonstrations, peaceful enough at first, became riotous and violent, resulting in personal injuries and property damage. They attempt to justify the injunction and the ordinances as a reasonable and necessary response to the excesses of the demonstrators and requisite for the preservation of peace and order.

The testimony discloses that the first demonstration in Danville occurred on Friday, May 31, 1963. It was orderly. The demonstrators had applied for no permit to parade, but city officials prepared and sent a permit to them. Other demonstrations followed on Saturday, June 1, and on Monday and Tuesday, June 3 and 4. During these demonstrations, the Negroes marched through the streets to congregate on the steps of the state courthouse. In the process, they blocked, for a time, other traffic in the streets and access through the principal entrance to the courthouse, but they inflicted no physical injury upon anyone or any property.

On Wednesday, June 5, however, they were not so restrained. As on the preceding days, a large crowd of Negroes marched to the state courthouse and occupied the main steps leading into the building. At about 4:15 o'clock, in the afternoon, they invaded the building, itself. The City Manager's office was occupied by them, though he was not present, while other demonstrators in the corridors sang, chanted, shouted, clapped, and rattled previously prepared noise makers. They ignored requests to leave until one of their leaders was arrested approximately one hour after they had entered the building. The other demonstrators then evacuated the building, one young girl striking the Chief of Police in the face with her pocketbook as she left. She, too, was placed under arrest.

The demonstration on June 5 did not end with the evacuation of the courthouse. The crowd proceeded to a theater and a YMCA. There is testimony that some members of the crowd then began to throw bricks, bottles and rocks. Several police officers were struck by the missiles, and one missile broke a window of a hotel. When police officers undertook to take into custody one member of the crowd, then numbering some 200 to 250 persons, they were threatened and stones were hurled at them, and after they succeeded in entering a police car, the car was hit with unidentified objects.

During most of this time traffic in the streets was blocked or impeded. One automobile, occupied by white persons, was surrounded by the crowd and rocked back and forth until police effected a rescue.

Sometime after 8:00 o'clock in the evening, after the demonstration had been going on for more than four hours, the crowd sat down in Danville's main business street, which is United States Highway 29, effectively blocking all traffic. At about that time, police summoned the Honorable A. M. Aiken, Judge of the Corporation Court of Danville. This was done pursuant to § 18.1-247 of the Code of Virginia 1950, which authorizes judges and justices of the peace to suppress riots and unlawful assemblies, and requires them to go among, or as near as they safely may to, persons riotously or unlawfully assembled, and demand that they disperse. Judge Aiken spoke to one of the leaders of the crowd and told him to ask the demonstrators to disperse. This command was refused. Thereafter Judge Aiken told the Chief of Police that he thought the crowd would disperse if its leaders were arrested. The Judge then left. One of the leaders of the crowd also left, but, upon a signal from the other leader, the crowd of demonstrators began to move toward a crowd of white people which had gathered nearby. The whites moved back upon police orders and the demonstrators proceeded to the Danville Public Library. There, the remaining leader of the demonstrators was again asked to disband the crowd and was arrested when he refused to do so. Leaderless, the demonstrators then began to disperse. There was testimony that thereafter, however, a small group of Negroes, armed with bricks, or half bricks, roamed the streets threatening white people and daring white motorists to leave their cars.

On the next day, upon application of the City, Judge Aiken issued a temporary injunction and restraining order which prohibited mass demonstrations and mass or violent picketing.

On the morning of Monday, June 10, there was another mass demonstration. As the crowd of Negroes proceeded up the street, several white people entered an automobile intent upon removing it and themselves from the scene. The car's engine did not promptly start, and the vehicle was surrounded by demonstrators, some of whom were swinging socks, the toes of which had been filled with rocks, at the occupants of the car. The automobile was extensively damaged, and one of its doors was torn off. At about this time, however, several of the demonstrators were arrested after which, according to the Chief of Police, the remaining demonstrators sought to rush the jail and free their confederates. Finally, this crowd was dispersed with fire hoses.

On that same night at approximately 11:00 o'clock, another crowd of Negroes assembled near the jail. This time, except that they blocked the way and refused to leave, they were neither violent nor disorderly. Because they refused to disperse, fire hoses and night sticks...

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