Congress of Racial Equality v. Douglas, No. 19724.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: TUTTLE, , and WISDOM and GEWIN, Circuit
• Citation: 318 F.2d 95
• Parties: The CONGRESS OF RACIAL EQUALITY, John Doe and Mary Doe, Appellants, v. C. H. DOUGLAS, individually and as Mayor of the City Of McComb City, Mississippi, and Mr. and Mrs. Aubrey McGehee, Appellees.
• Decision Date: 15 May 1963
• Docket Number: No. 19724.

318 F.2d 95 (1963)

The CONGRESS OF RACIAL EQUALITY, John Doe and Mary Doe, Appellants,
v.
C. H. DOUGLAS, individually and as Mayor of the City Of McComb City, Mississippi, and Mr. and Mrs. Aubrey McGehee, Appellees.

No. 19724.

United States Court of Appeals Fifth Circuit.

May 15, 1963.

318 F.2d 96

Derrick A. Bell, Jr., Carl Rachlin, New York City, Lolis Elie, New Orleans, La., Stephen C. Vladeck, Robert Emmett Burns, Norman Dorsen, New York City, Robert Collins, Nils Douglas, New Orleans, La., of counsel, for appellants.

Peter M. Stockett, Jr., Sp. Asst. Atty. Gen. of Mississippi, Jackson, Miss., Charles Clark, Asst. Atty. Gen. of Mississippi, Jackson, Miss., William A. Wiltshire, McComb, Miss., Joe T. Patterson, Atty. Gen. of Mississippi, Dugas Shands, Asst. Atty. Gen. of Mississippi, Louis Alford, McComb, Miss., of counsel, for appellees.

Before TUTTLE, Chief Judge, and WISDOM and GEWIN, Circuit Judges.

TUTTLE, Chief Judge.

This is an appeal from a preliminary injunction obtained by the Mayor, acting individually and as Mayor of the City of McComb City, Mississippi, and Mr. and Mrs. Aubrey McGehee, the owners of a restaurant in a Greyhound Bus Station against CORE forbidding the defendant from sponsoring, encouraging or financing persons to utilize the terminal

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facilities in the City of McComb City, Mississippi, "for the purpose of fomenting violence or provoking breaches of the peace in or near said terminal facilities; or for such purpose after having publicized their purposes and intentions to so utilize or misuse such facilities; or for the purpose of creating or securing unto themselves notoriety and publicity, as the sponsoring organization of such fomentation and provocation; or for the purpose of testing the tempers and reactions of the local citizens of the said City in the absence of local police protection."

Jurisdiction was vested in the district court by way of 28 U.S.C. § 1332, diversity of citizenship, the Congress of Racial Equality being incorporated in the state of New York, and all plaintiffs being citizens of the state of Mississippi.

On Monday, November 27, 1961, a preliminary injunction was issued by a statutory three-judge court in the Southern District of Mississippi generally enjoining McComb City and its officials from interfering in any way with compliance by the Greyhound Corporation with the laws of the United States and the regulations of the Interstate Commerce Commission prohibiting racial discrimination in interstate commerce facilities. 6 Race Relations Law Reporter 1169.

All of the evidence in this case comes from the testimony of the witnesses for the plaintiffs, including a member of CORE, on direct and cross examination, the defendants not filing responsive pleadings other than motions to dismiss nor offering any of its own witnesses.

Since this is an appeal from a preliminary injunction, and not a final ruling after full hearing on the merits, we must review the district court's injunction on the narrow question of whether that court abused or improvidently exercised its discretion. Alabama v. United States, 279 U.S. 229, 230, 49 S.Ct. 266, 73 L.Ed. 675 (1929); Weiner v. National Tinsel Manufacturing Co., 123 F.2d 96 (7th Cir., 1941). Unless the plaintiffs make out a prima facie case, a preliminary injunction should not issue. W. A. Mack, Inc. v. General Motors, Inc., 260 F.2d 886 (7th Cir. 1958). An injunction should only be used when it is clear that the question presented by the litigant who seeks the injunction is free from doubt. See Consolidated Canal Co. v. Mesa Canal Co., 177 U.S. 296, 302, 20 S.Ct. 628, 44 L.Ed. 777 (1900); St. Louis Street Flushing Machine Co. v. Sanitary Street Flushing Machine Co., 161 F. 725, 728 (8th Cir. 1908). Furthermore, there must be a balancing of the conveniences and rights of the parties and a balancing of the possible injuries to them according to how they may be affected by the granting or withholding of the injunction. Meccano, Ltd., v. John Wanamaker, New York, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822 (1920).

The complaint,¹ the tenor of which is conveyed by the language of the preliminary injunction, stated above, claims that such "incidents of violence" which were done in order "to foment violence and to provoke breaches of the peace in and around terminals and facilities" have caused "great injury and damage" to the plaintiffs.

We will examine the evidence, including the inferences to be drawn

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therefrom, in the light most favorable to the appellees, the winning parties below, in order to determine if the rights of the plaintiffs are clear so that this court in reviewing the issuance of the preliminary injunction of the district judge could not say that the district judge abused his discretion

The testimony discloses the following events: On Tuesday, the day following the issuance of the order of the United States District Court desegregating the terminal facilities of McComb, certain officials of McComb learned that Negro members of CORE were coming from New Orleans to McComb on Wednesday, the next day, in order to use McComb's bus terminal facilities.³ The members arrived by bus from New Orleans Wednesday morning, as scheduled, but they found the bus terminal closed because of a "gas leak." Their arrival had been announced by various news media, and small groups of whites and Negroes, as well as a few members of the press, were on hand to "greet" the travelers. They arrived at and departed the closed terminal without incident. Members of

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the McComb police force were present that morning. That afternoon the same CORE members returned to the terminal, but when they got there none of the McComb police force had yet arrived.⁴ The crowd was larger this time. A photographer was reported to have been beaten up at or near the terminal by members of the white throng. The number of persons "greeting" the travelers was never determined, but it was clear that the CORE groups never numbered over five. The CORE party went into that part of the terminal restaurant, which was formerly only for whites, and asked to be served. The proprietor, who first told them to go to the other part of the waiting room to be served by a woman of their color, testified that they demanded service and that one of them beat on the counter and said "Why in the hell can't we get service in here." He further testified that violence broke out, although he said he did not know where it came from. One of McComb's Selectmen, a Mr. Gordon, testified that he saw disturbances on Wednesday, but he too could not be specific. He said there were no breaches of the peace, and no refusal by the McComb citizens to obey the police officers, once they got there, although he said the Negroes were "ejected" from the waiting room. He said the Negroes always behaved in an appropriate manner

Another visit by these CORE members was planned for Friday. The newspapers carried the story on Thursday. Large crowds were again there to meet them, as well as the police force being on hand. They arrived as scheduled and used the terminal facilities without incident. The McComb Chief of Police testified that to his knowledge the CORE members did not behave in a boisterous manner.

On Saturday another visit was scheduled and again there were some greeters at the terminal site, this time not as many as on the previous visits. The reporters and police officers were also on hand. A police officer, Smith, testified that the CORE members behaved "in a reasonably quiet manner," and that the police had the situation under control Friday and Saturday, but that they were needed there to keep order. There were two reported incidents of disturbance on Saturday. A local member of CORE stated that he was struck several times by some person in the terminal; and the other was that two or three of the members of the crowd struck the local CORE official's car, but this stopped at the command of one of the police officers.

It was clear that the rides were publicized, but there is little evidence to indicate how the press got hold of the planned trips. One of the local CORE officials said that he knew of no planned publicity. The city officials originally learned on Tuesday of the first trip from an agent of the F.B.I., although how the latter learned is not disclosed. There is no evidence that CORE itself held press conferences to make public statements about the timing of planned rides.

From the three visits on Wednesday, Friday and Saturday, and the above described events, the testimony was that the city was affected in the following manner: Selectman Gordon: "The people of the city were obviously greatly disturbed. They were reluctant to go about their ordinary business. The situation was extremely tense, explosive." But he said the situation got better after Judge Mize's temporary restraining order. The proprietor of the restaurant said he had to close down his restaurant because of the tense situation, although Negroes have used the terminal facilities peacefully and without incident since the CORE visits.

The evidence relative to the conduct of the CORE members was almost entirely favorable. They behaved in an "appropriate manner," never "antagonistic," never "boisterous," and in "a reasonably

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quiet manner" according to the testimony of three of the plaintiff's witnesses. Only the proprietor of the restaurant said one CORE member demanded service in a loud manner and beat on the counter. The only incidents of malevolent behavior came from the white crowd milling around the terminal. The police officers testified that the crowds obeyed their orders at all times and that they had the situation under control on Friday and Saturday

The district court found that the CORE members publicized their arrival and that this was a "widely advertised challenge to the entire community;" that this was with the avowed purpose of testing...