Carmichael v. Allen

• Citation: 267 F. Supp. 985
• Decision Date: 07 March 1967
• Docket Number: Civ. A. No. 10421.
• Parties: Stokely CARMICHAEL et al., Plaintiffs, v. Ivan ALLEN, Jr., Mayor of City of Atlanta, Georgia et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

267 F. Supp. 985

Stokely CARMICHAEL et al., Plaintiffs, v. Ivan ALLEN, Jr., Mayor of City of Atlanta, Georgia et al., Defendants.

Civ. A. No. 10421.

United States District Court N. D. Georgia, Atlanta Division.

December 13, 1966.

Judgment January 16, 1967.

Supplemental Order March 7, 1967.

Howard Moore, Jr., Atlanta, Ga., William M. Kunstler, Arthur Kinoy, New York City, Len W. Holt, Washington, D. C., Morton Stavis, Dennis J. Roberts, Newark, N. J., Michael Standard, New York City, for plaintiffs.

J. Walter LeCraw, Atlanta, Ga., for Slaton and Grimes.

Arthur K. Bolton, Atty. Gen., G. Ernest Tidwell, Exec. Asst. Atty. Gen., Mathew Robins, Atlanta, Ga., for State of Georgia.

Henry L. Bowden, Ferrin Y. Mathews and Martin McFarland, Atlanta, Ga., for Allen, Jenkins & Redding.

Before TUTTLE, Circuit Judge, and HOOPER and SMITH, District Judges.

PER CURIAM:

This is a suit by the plaintiffs seeking a judgment declaring unconstitutional certain Georgia criminal statutes, and an Atlanta City Ordinance. The plaintiffs are Stokely Carmichael, an individual, and as Chairman of the Students Nonviolent Coordinating Committee, suing "on behalf of himself and all members of the staff of SNCC as well as all Negro residents of the City of Atlanta and County of Fulton, Georgia, similarly situated, which class is too numerous to bring before the Court," and Student Nonviolent Coordinating Committee, an unincorporated association, in its own behalf.

The defendants are Ivan Allen, Jr., Mayor of the City of Atlanta, Herbert T. Jenkins, Chief of Police of the City of Atlanta, T. Ralph Grimes, Sheriff of Fulton County, Georgia, Lewis Slaton, Solicitor General (the principal prosecuting officer) of the Atlanta Judicial Circuit, State of Georgia, and Morris L. Redding, a police officer of the City of Atlanta.

In the complaint it is alleged that the Student Nonviolent Coordinating Committee (hereafter "SNCC") is:

"An unincorporated association maintaining an office for business purposes in the City of Atlanta, Georgia, whose purpose is to help to secure to all Negro citizens the rights guaranteed to them under the Constitution of the United States, and to end all forms of racial segregation and discrimination in the interest of Negro and white citizens throughout the United States. In support of these purposes SNCC, its staff and supporters engage in all forms of legitimate protest activities, including, but not limited to picketing, demonstrations, rallies, mass meetings, voter registration drives, community organization, and publication. SNCC seeks to obtain its objectives through the utilization of the fundamental rights of free speech, press and assembly, and the right to petition the government for the redress of grievances."

It is asserted that the jurisdiction of the court over the complaint arises under Title 28 U.S.Code, Sections 1331, 1332, 1343(3), (4), 2201, 2202, 2281 and 2284; Title 42 U.S.Code, Section 1971, and 1981, 1983 and 1985; "The Civil Rights Act of 1964"; the "Voting Rights Act of 1965," and the Constitution of the United States and more particularly, the First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Thirteenth, Fourteenth, and Fifteenth Amendments thereto.

The basis of the plaintiffs' suit, as alleged by them, is that the defendants have purposefully entered into a plan or scheme of concerted and joint action with other persons unknown to the plaintiffs to subject or cause to be subjected the plaintiffs to a deprivation of rights, privileges and immunities secured to them by the Constitution and laws of the United States. The plan or scheme alleged in the complaint is that the defendants have attempted to, and have threatened to continue to, attempt to prosecute the plaintiffs and the class which they represent or those working in cooperation with SNCC under the color and authority of certain state statutes and city ordinances, which will be hereafter outlined; that the said prosecutions and threatened prosecutions under the named statutes were not in a good faith attempt to vindicate the criminal statutes of the state of Georgia, but were for "the sole purpose of subjecting and causing to be subjected the plaintiffs and members, friends and supporters of SNCC to the deprivation of rights, privileges and immunities secured to them by the Constitution and laws of the United States."

The stated objectives, which plaintiffs say are interfered with by prosecution based on such laws, are the attempts "through peaceful and nonviolent means to achieve the elimination of all forms of racial segregation in the United States and the state of Georgia, and to assist and encourage Negro citizens to exercise their rights to register and vote in federal and state elections." It is asserted that these objectives are specifically protected and guaranteed by the Constitution of the United States; that "in their constant efforts to achieve these constitutionally protected efforts, sic the plaintiffs and members, friends and supporters of SNCC have been attempting to exercise rights guaranteed them under the First and Fourteenth Amendments of the Constitution aforesaid to freedom of speech, press, assembly, association, and the right to assemble, associate and petition for a redress of grievances."

The gravamen of this charge is that it was a bad faith effort to interfere with admitted rights by misuse of the state's criminal procedures.

A second basis of the suit is the contention that the statutes are unconstitutional on their face, as being vague and overbroad; that the overbreadth is of a nature that would permit constructions which would violate plaintiffs' First Amendment and other constitutional rights; that, therefore, threatened prosecutions under them have a "chilling" effect on the free exercise by plaintiffs and their class of the right of free speech, freedom of assembly and the right to protest.

The facts leading up to this litigation may be briefly stated. They will be stated as Findings of Facts, as required under the Federal Rules of Civil Procedure, Rule 52(a). The following numbered findings are based on undisputed testimony produced on the trial of this case.

(1) Shortly after 1:00 P.M., on September 6, 1966, in the Summerhill area of Atlanta, near the intersection of Capitol Avenue and Ormond Street, Officers Harris and Kerr, of the Atlanta Police

Department, saw a Negro man, Harold Prather, for whom they had a warrant of arrest. They ordered him to stop, but he ran and Harris gave chase. Harris fired three shots at Prather, and two of them struck him. The latter continued to run and fell on the steps of the porch of his mother's house at 39 Ormond Street.

(2) Numbers of Negro citizens of the community either witnessed the shooting or soon learned of it, and a number of them gathered at the Prather house, where the latter's mother was critical of the conduct of the police. Rumors quickly spread in the community and the mood of the crowd was of anger, and the cry of police brutality was taken up throughout the community.

(3) The Summerhill area, in which the shooting occurred, is a rundown, substandard residential community occupied by low income Negro citizens. It is a community out of which prior complaints criticizing the inadequacy of recreation and school facilities had been voiced by its residents.

(4) At about 2:30 P.M. the plaintiff Carmichael first heard about the shooting from a news reporter for radio station WAOK. The news reporter persuaded Carmichael to go to the intersection of Capitol and Ormond Streets, where he then found a crowd of some 50 people near the intersection. Some of these people, who were residents of the community, displayed crudely made signs criticizing the police and protesting the shooting. Some of those present asked Carmichael, as Chairman of SNCC, to assist them in their protest and criticism of the Prather shooting and other acts. Carmichael agreed to do this and promised to return at 4:00 o'clock and assist or participate in a protest demonstration. Before leaving the area he went with the reporter into a telephone booth where he dictated a statement to be broadcast over station WAOK. In this statement, according to his testimony in this court, he said "that we were tired of these shootings, these incidents that occurred, and that we would mount a protest and tear up and turn inside out the city until these incidents have stopped."¹

(5) Carmichael then returned to the SNCC office at 360 Nelson Street, where a regular monthly meeting of the Central Committee was in progress. From there he called William Ware, a member of SNCC, and director of an Atlanta project for SNCC located in another low income Negro area of Atlanta known as Vine City. At Carmichael's request, Ware went to the vicinity of Capitol and Ormond Streets, where he obtained a sound truck owned by SNCC, and parked it on the street near the corner. There, over the loudspeaking system of the sound truck, he called for people to come and state what they had seen or what they knew about the shooting of Prather. One or two persons came and spoke over the loudspeaker, telling of their impressions of the occurrence. Their statements were inflammatory. Thereupon, Sergeant Perry, of the Atlanta Police Force, directed Ware to remove the truck from the street, and upon his failure to do so he placed Ware under arrest, charging him with unauthorized use of sound equipment on a public street. Ware was taken to the patrol wagon without resistance, but another member of SNCC, Bobby Walton, took the microphone in an effort to continue the program, but he, too, was arrested and placed in the patrol wagon with Ware.

(6) The arrest of these two men stirred up additional excitement and resentment, resulting in the first physical interference with the work of the police. The crowd, increasing momentarily, loudly and boisterously, surged forward and shook the patrol wagon from side to side....