Chester v. Kinnamon

• Decision Date: 14 November 1967
• Docket Number: Civ. No. 18869.
• Citation: 276 F. Supp. 717
• Parties: Lemuel CHESTER, Jr., Leon Lewis, James Lewis, Albert Young, Jr., James D. Fletcher, Mrs. Gladys Fletcher, Stuart Wechsler, Cambridge Black Action Federation, Student Non-Violent Coordinating Committee, Congress of Racial Equality v. Brice S. KINNAMON, Chief of Police of Cambridge, Maryland, William B. Yates, II, State's Attorney for Dorchester County, Maryland, Charles Dodson, Fire Chief of Cambridge, Maryland, Ira (Sarge) Johnson, Sr., Sheriff for Dorchester County, Maryland.
• Court: U.S. District Court — District of Maryland

276 F. Supp. 717

Lemuel CHESTER, Jr., Leon Lewis, James Lewis, Albert Young, Jr., James D. Fletcher, Mrs. Gladys Fletcher, Stuart Wechsler, Cambridge Black Action Federation, Student Non-Violent Coordinating Committee, Congress of Racial Equality v. Brice S. KINNAMON, Chief of Police of Cambridge, Maryland, William B. Yates, II, State's Attorney for Dorchester County, Maryland, Charles Dodson, Fire Chief of Cambridge, Maryland, Ira (Sarge) Johnson, Sr., Sheriff for Dorchester County, Maryland.

Civ. No. 18869.

United States District Court D. Maryland.

November 14, 1967.

Fred E. Weisgal, Lawrence Kotin and Weisgal, Albert & Lasover, Baltimore, Md., William M. Kunstler and Arthur Kinoy, New York City, Morton Stavis, Dennis Roberts and Harriet Van Tassel, Newark, N. J., for plaintiffs.

Francis B. Burch, Atty. Gen., of Maryland, Robert F. Sweeney, Deputy Atty. Gen., Morton A. Sacks, Thomas A. Garland, Asst. Attys. Gen., for defendants.

FRANK A. KAUFMAN, District Judge.

The complaint alleges that six of the nine plaintiffs are residents of Cambridge, Maryland, and that two of those six are members of the Cambridge Black Action Federation suing on behalf of themselves and others similarly situated. A seventh plaintiff sues as a member of the Congress of Racial Equality for himself and others similarly situated. The eighth plaintiff is alleged to be an unincorporated association, the Cambridge Black Action Federation, described as an organization "whose purpose is to help to secure to all black citizens of Cambridge the rights guaranteed to them under the Constitution of the United States, and to end all forms of racial segregation and discrimination" in Cambridge. A ninth plaintiff is the Congress of Racial Equality, stated to be an unincorporated association, with a purpose, national in scope, substantially corresponding to the local purpose of the Cambridge Black Action Federation. Jurisdiction is alleged under the Federal Constitution and named amendments thereto, and under certain federal statutes.¹ The amount in controversy, exclusive of interest and costs, is stated to exceed $10,000.

The complaint names four defendants, respectively the Chief of Police and the Fire Chief of Cambridge, and the State's Attorney and Sheriff of Dorchester County; and alleges that said defendants have "purposely conspired together and entered into a plan or scheme of concerted and joint action" with each other and with others to subject plaintiffs and the classes they represent to deprivation of their constitutional rights. Pursuant to such plan or scheme, defendants are alleged to have refrained and to continue to refrain from prosecuting persons seeking to kill and injure plaintiffs and members of the classes they represent, and to have prosecuted and to continue to prosecute plaintiffs and such class members under Art. 27, Secs. 7, 12, and 123 of the Annotated Code of Maryland, as amended, and under the common-law crime of "Inciting to Riot"; otherwise to harass and deter them from exercising their constitutional rights; and, to refrain from providing plaintiffs and such class members with fire and police protection. The allegations of the complaint contain specific references to certain events, including fires and acts of violence "against the black community" in Cambridge during June and July, 1967.

The complaint alleges that the three Maryland statutes and the common-law crime of inciting to riot are "void and illegal on their face and as applied to plaintiffs herein" and violative of constitutional rights of plaintiffs and the alleged class members including, among others, rights of free speech, assembly and due process. Plaintiffs claim that defendants, by threatening the enforcement of such allegedly unconstitutional statutes and unconstitutional common-law crime, with the intent to deter plaintiffs and the members of the classes which they represent from exercising their peaceful and non-violent rights, have subjected and continue to subject plaintiffs and such class members to irreparable injury.

The parties have stipulated that the indictments in certain criminal cases instituted in the Circuit Court for Dorchester County, Maryland, are part of the record in this proceeding. Respectively, those indictments charge plaintiffs Leon Lewis and James Lee Lewis under Art. 27, Sec. 12² and for "unlawfully" making "an assault upon" a police officer; plaintiffs Mrs. Gladys Fletcher and James D. Fletcher under Art. 27, Sec. 7;³ plaintiff Lemuel Chester, Jr. with riot and incitement to riot; and plaintiff Stuart Norman Wechsler with incitement to riot. No issue has been raised by plaintiffs with regard to the charge against Messrs. Lewis, of assaulting a police officer, or with regard to the charge of riot against Lemuel Chester, Jr. None of the plaintiffs have been indicted under Art. 27, Sec. 123.

Plaintiffs ask this Court to convene a three-judge District Court pursuant to 28 U.S.C. §§ 2281 and 2284. Plaintiffs seek from such three-judge court a declaratory judgment that the three Maryland statutes and the common-law crime of inciting to riot are unconstitutional and therefore void. They also request that such court issue interlocutory and permanent injunctions against the enforcement of the three Maryland statutes and of the common-law crime of incitement to riot, as violative "on their face" of the Federal Constitution "and/or as applied to the conduct of the plaintiffs." Injunctive relief is also sought against the defendants impeding plaintiffs and the class members they represent from exercising their constitutional rights. Also, plaintiffs ask that such three-judge court enjoin further proceedings in the Circuit Court for Dorchester County in pending cases instituted pursuant to the aforementioned indictments.

Section 2281 of 28 U.S.C. is the first section of Chapter 155 of Title 28. That chapter is entitled "Injunctions; Three-Judge Courts" and that said section provides:

An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.

Section 2284 of 28 U.S.C. provides, in part:

In any action or proceeding required by Act of Congress to be heard and determined by a district court of three judges the composition and procedure of the court, except as otherwise provided by law, shall be as follows:

(1) The district judge to whom the application for injunction or other relief is presented shall constitute one member of such court. On the filing of the application, he shall immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. Such judges shall serve as members of the court to hear and determine the action or proceeding.

Under 28 U.S.C. §§ 2281 and 2284(1) this Court is required to ask the Chief Judge of the United States Circuit Court for the Fourth Circuit to convene a three-judge District Court only if there is a substantial, non-frivolous attack upon the constitutionality of a Maryland statute, but not otherwise. Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Green v. Board of Elections, 380 F.2d 445, 448 et seq. (2d Cir. 1967); German v. South Carolina State Ports Authority, 295 F.2d 491, 494 (4th Cir. 1965); Jacobs v. Tawes, 250 F.2d 611, 614 (4th Cir. 1957). Plaintiffs concede that they make no such attack upon either Art. 27, Sec. 7⁴ or Art. 27, Sec. 12.⁵ During oral argument plaintiffs' counsel did not press, and indeed specifically dropped, any attack on the validity of the common-law crime of inciting to riot. After the hearing, at the request of plaintiffs' counsel and by agreement of counsel on both sides approved by the Court, such concession was withdrawn. However, the attention of this Court has not been directed to any authority, argument or analysis that such common-law crime is the equivalent of a state statute for purposes of 28 U.S.C. § 2281. As is discussed below in this opinion, that section must be narrowly and technically construed.

Even if the common-law crime of incitement to riot can, for the purposes of § 2281, be considered the equivalent of a statute, the discussion in Cohen v. State, 173 Md. 216, 195 A. 532 (1937) by the Court of Appeals of Maryland would seem to foreclose any substantial constitutional attack. In that case, the Court, while dealing with the common-law crime of riot, said (at 221, 195 A. at 538) that "at common law it was necessary that three or more persons be unlawfully assembled to carry out a common purpose in such violent or turbulent manner as to terrify others, * * *." See also 7 Md.Law Encyc. Criminal Law § 2, p. 153. The bare conclusory challenge of plaintiffs to the validity per se of the common-law crime of wilfully inciting to riot hardly presents a substantial question.

The principal contention of plaintiffs is that whether or not they are attacking the constitutionality per se of Art. 27, Sec. 7, or Art. 27, Sec. 12, or the common-law crime of inciting to riot, they are entitled to a three-judge court under 28 U.S.C. § 2281 because they are attacking the conspiratorial and unconstitutional application to plaintiffs of each of those statutes and of that common-law crime. It is true that if state officials seek to enforce a state statute against a member of a class when the statute,...