Congress of Racial Equality v. Clemmons

• Decision Date: 18 October 1963
• Docket Number: No. 19703.,19703.
• Citation: 323 F.2d 54
• Parties: CONGRESS OF RACIAL EQUALITY, John Doe and Mary Doe, Appellants, v. Bryan CLEMMONS, Wingate White and John Christian, the latter in his official capacity as Mayor-President of the City of Baton Rouge, Louisiana, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

323 F.2d 54 (1963)

CONGRESS OF RACIAL EQUALITY, John Doe and Mary Doe, Appellants, v. Bryan CLEMMONS, Wingate White and John Christian, the latter in his official capacity as Mayor-President of the City of Baton Rouge, Louisiana, Appellees.

No. 19703.

United States Court of Appeals Fifth Circuit.

September 12, 1963.

Rehearing Denied October 18, 1963.

Robert F. Collins, New Orleans, La., Carl Rachlin, New York City, Stephen C. Vladeck, New York City, Lolis Elie, Nils Douglas, New Orleans, La., Sheldon Engelhard, Charles R. Oldham, St. Louis, Mo., of counsel, for appellants.

R. Gordon Kean, Jr., John V. Parker, John F. Ward, Jr., Baton Rouge, La., Sargent Pitcher, Dist. Atty., for appellees.

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

WISDOM, Circuit Judge.

This case presents new twists in civil rights litigation. The thrust of the holding below is that the State action here was action of the Congress of Racial Equality and Negro demonstrators. The State invokes the Fourteenth Amendment against private individuals, although the Fourteenth Amendment establishes constitutional rights in favor of private individuals and against the State. Moreover, this unusual federal action is in an area that is essentially one of State responsibility — the preservation of public order; and there is no lack of breach of peace statutes in Louisiana. The relief sought and granted in the name of the Fourteenth Amendment is a federal injunction to protect the police power of the State from private persons said to have interfered with the constitutional duty of city and parish officers to provide equal protection of the laws to all citizens. The interference consisted of a demonstration of Negro college students in front of the Courthouse in Baton Rouge, drawing to that location most of the city and parish police officers. Implicit in the district court's decision is the notion that when private persons interfere with a duty imposed on a State by the Fourteenth Amendment, it becomes a matter of sufficient federal concern to justify prior restraints by federal injunction. In the circumstances, a proper regard for the federal system requires that the Court scrutinize closely the question of jurisdiction and whether on the merits the case is indeed one arising under the Constitution and laws of the United States.

This action arose out of a demonstration of Negroes in Baton Rouge, Louisiana, to protest the jailing of pickets who had urged a boycott of stores practicing racial discrimination. December 15, 1961, a large group of Negro students from Southern University, under the supervision of officers of the Congress of Racial Equality, marched from Scotland-ville, Louisiana, to the Courthouse in Baton Rouge, a distance of four and a half miles. The Mayor of Baton Rouge had instructed the police office to provide necessary protection to the demonstrators as long as their activities were orderly. At times the march blocked traffic, but there was no disorder. When the march reached the Courthouse the crowd, marchers and Negro bystanders, numbered about 1500 to 2000. There were about 300 white men across the road from the demonstrators. All of the police officers on duty and sixty off-duty officers were pressed into service. The Negroes followed orders given by the Reverend B. Elton Cox, an officer of CORE. When the marchers first arrived in the downtown area, Cox and the Chief of Police conferred. Cox said that the demonstrators wanted to congregate for seven minutes at the Courthouse, where the parish prison is located; that they would say the Oath of Allegiance, sing two songs, hear a four-minute speech, and then return to Southern University. The Chief of Police told Cox that such a demonstration was permissible as long as it was orderly. The demonstration took place as planned, and without any disorder, until Cox urged the Negroes to go to lunch counters in twelve stores, demand service, and refuse to move for one hour. The trial judge found: "It was at this moment, according to the uncontradicted testimony * * * that an outbreak of physical violence was almost a certainty"; the "entire situation was `tense with impending violence' and the conduct of the crowd `was fast approaching a mob reaction.'" When the demonstrators refused to move, the sheriff ordered tear gas bombs to be fired into the crowd. The streets were cleared within two minutes.

Alleging an imminent threat of further demonstrations, the mayor and law enforcement officials of Baton Rouge sought injunctive relief in the federal district court. The complaint avers that CORE, its officers and agents, and John Doe and Mary Doe and others were fomenting violence and breaches of peace in the City of Baton Rouge and were encouraging a conspiracy to violate the laws of Louisiana and of the United States. The gist of the complaint is stated in the following allegation:

"The actions of these defendants and others acting in concert with them, has resulted in the obstruction and complete blockage of certain public streets and ways of the City of Baton Rouge, thereby denying and depriving plaintiffs and individual citizens of the State of Louisiana and of the United States of America of their civil rights, including the right to freely use the public streets and ways without interference and hindrance; and in addition, these acts on the part of the defendants, and others in concert with them, are such as to hinder plaintiffs in their official capacities as constituted authorities of the Parish of East Baton Rouge, Louisiana, and of the State of Louisiana, and of the City of Baton Rouge, Louisiana, from giving or securing to all persons within said State, Parish and City the equal protection of the laws, including the equal right of all the citizens to use the public ways of the City of Baton Rouge, Parish of East Baton Rouge, State of Louisiana, in a normal, peaceful and customary manner, all of which is in violation of the provisions of Title 42, Section 1985(3) of U.S.Code Annotated."

The plaintiffs assert jurisdiction under 28 U.S.C.A. § 1332, the diversity statute, and 28 U.S.C.A. § 1343, providing for jurisdiction of "any civil action authorized by law to be commenced by any person * * * because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42 * * *."

The defendants, in their answer, admit the plaintiffs' jurisdictional allegations and, in addition, invoke jurisdiction on their own behalf under 28 U.S.C.A. § 1331, the federal question statute, 42 U.S.C.A. § 1983, 42 U.S.C.A. § 1981 and 28 U.S.C.A. § 2281. In a counterclaim, they urge that their activities were protected under the First and Fourteenth Amendments and ask that the plaintiffs be enjoined from interfering with their constitutional rights of freedom of speech and freedom of assembly.

The trial judge found that the plaintiffs were entitled to injunctive relief and issued a sweeping permanent injunction restraining "the Congress of Racial Equality, and John Doe and Mary Doe and each of them and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them from * * * financing, sponsoring, encouraging or engaging in meetings or any other activities whereby violations are suggested, advocated or encouraged."¹ The defendants appeal, urging, among other contentions, that the injunction is so broad as to abridge, by prior restraints, their freedom of speech. We do not reach that issue. We reverse the case with directions to dismiss for failure of the plaintiffs to show a federal cause of action upon which relief may be granted.

I.

There is clearly no diversity jurisdiction, 28 U.S.C.A. § 1332 stipulates that

"The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between — (1) citizens of different states * * *."

In the first place, the complaint fails to allege the jurisdictional amount. The trial judge stated that the court had jurisdiction under section 1332, but he made no finding that the matter in controversy exceeded $10,000. In oral argument counsel for the appellees suggested we take judicial notice of the fact that demonstrations by 2,000 Negroes likely to result in violence would cause property damage in excess of the jurisdictional amount. Even if we should follow this suggestion, we should have to hold that the plaintiffs failed to make a sufficient showing of diversity of citizenship between the parties to support jurisdiction.

The complaint states that the defendants are "the Congress of Racial Equality, a corporation incorporated under the laws of the State of New York, and John Doe and Mary Doe, whose exact names and addresses are unknown to the plaintiffs, but who are citizens of the United States and non-residents of the State of Louisiana." This allegation will not support the trial court's jurisdiction. Diversity of citizenship, not of residence, is required under 28 U.S.C.A. § 1332. "Whereever jurisdiction is predicated upon the citizenship (or alienage) of the parties, it should be noted that since residence is not the equivalent of citizenship, an allegation that a party is a resident of a certain state or foreign country is not a sufficient allegation of his citizenship." 2 Moore, Federal Practice ¶ 8.10, p. 1636 (2d Ed.). "Residence alone is not the equivalent of citizenship, although the place of residence is prima facie the domicile." Stine v. Moore, 5 Cir., 1954, 213 F.2d 446. See Neel v. Pennsylvania Company, 1895, 157 U.S. 153, 15 S.Ct. 589, 39 L.Ed. 654; Realty Holding Company v. Donaldson, 1925, 268 U.S. 398, 45 S.Ct. 521, 69 L.Ed. 1014; Texaco-Cities Service Pipeline Co. v. Aetna Casualty & Surety Company, 8 Cir., 1960, 283 F.2d 144. Here, the...