Hunter v. Allen

• Decision Date: 20 May 1968
• Docket Number: No. 11328.,11328.
• Citation: 286 F. Supp. 830
• Parties: Rev. Robert HUNTER, Rev. Elroy Embry, James Gibson, Southern Christian Leadership Conference, Inc., Henry Bass, the Atlanta Workshop in Non-Violence, and all others similarly situated v. Ivan ALLEN, Jr., Mayor of the City of Atlanta, Georgia, Herbert T. Jenkins, Police Chief of the City of Atlanta, Georgia, and J. R. Shattles, Police Officer of the City of Atlanta, Georgia.
• Court: U.S. District Court — Northern District of Georgia

286 F. Supp. 830

Rev. Robert HUNTER, Rev. Elroy Embry, James Gibson, Southern Christian Leadership Conference, Inc., Henry Bass, the Atlanta Workshop in Non-Violence, and all others similarly situated v. Ivan ALLEN, Jr., Mayor of the City of Atlanta, Georgia, Herbert T. Jenkins, Police Chief of the City of Atlanta, Georgia, and J. R. Shattles, Police Officer of the City of Atlanta, Georgia.

No. 11328.

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

May 20, 1968.

COPYRIGHT MATERIAL OMITTED

Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., for plaintiffs.

Henry L. Bowden, Martin McFarland, Atlanta, Ga., for defendants.

ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

SIDNEY O. SMITH, Jr., District Judge.

This is a class action brought by the above named individuals, the Southern Christian Leadership Conference, Inc. and the Atlanta Workshop in Non-Violence, as well as all Negro residents of Atlanta similarly situated against Mayor Allen, Chief of Police Jenkins, and Police Officer Shattles, both individually and in their designated capacities. Plaintiffs allege that jurisdiction arises under 28 U.S.C.A. §§ 1331(a), 1343(3) and (4), 2201 and 2202; 42 U.S.C.A. §§ 1981, 1983, and 1985; the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000d et seq. and 2000e et seq. and the Constitution of the United States (1st, 4th, 5th, 6th, 8th, 9th, 10th, 13th and 14th Amendments). The heart of the complaint is that the named defendants have used the disorderly conduct ordinance of Atlanta, which is allegedly invalid and unconstitutional, to deprive the plaintiffs of their constitutionally guaranteed rights. Plaintiffs allege that they have been attempting through peaceful and nonviolent means to achieve the elimination of all forms of racial segregation, that these activities, though constitutionally protected, have been unlawfully interfered with by the named defendants and that these defendants threaten to continue this interference unless restrained. Plaintiffs pray for interlocutory and permanent injunctive relief as well as declaratory relief against the enforcement of and continued existence of § 20-7, "Disorderly Conduct" provisions of Atlanta's Municipal Code.

THE FACTS

This case arises out of two separate and distinct sets of facts. Case number one involves the conviction of Henry Bass, Susan Bass, Ron Ausburn, Jim Gehres and John Jacobs for violation of subsection (q) of Section 20-7 of the Disorderly Conduct Ordinance of Atlanta, Georgia. These and other persons, all members of the Atlanta Workshop in Non-Violence, an unincorporated membership association "devoted to the cause of world peace and the solution of national and international problems and controversies by non-violent means" on the morning of October 16, 1967, in a protest against the war in Vietnam sat down and blocked the front doors of a privately owned building at 900 Peachtree Street, N.E., Atlanta. This building contained several of Atlanta's Selective Service Local Boards. The building custodian, R. M. Lander, attempted repeatedly to leave the building through the front door but the above mentioned persons continued to block the doors. These persons refused to move and finally were placed under arrest and charged with violating Section 20-7(q). At their trial they were informed that they were charged with violation of § 20-7(q) and five of the group were convicted, fined $250.00 and sentenced to sixty days in jail. Thirty days of the sentences were suspended on condition that neither they nor any members of their group were convicted of any violation of federal, state, or municipal laws. The trial judge refused to allow counsel to prove that the racial composition of the draft boards within the building was such that they were illegally composed.

Case number two relates to the arrest and conviction of Rev. Embry, Rev. Hunter, and James Gibson, members of the Southern Christian Leadership Conference. These persons were arrested while protesting the construction of portable classrooms at Turner High and were convicted of violating § 20-7. On October 24, 1967, J. R. Mathis, who was hired to construct these classrooms, arrived at the school to begin work. He found that the entranceway gate was blocked by the car of Rev. Embry. After requests for the removal of the car, the police arrested Rev. Embry and impounded his car. He was convicted of violating § 20-7(q) and (r). Defendants now purport to disavow the finding of guilty under subsection (r) because Embry had no notice of that charge at the time the case was originally tried. Soon after Rev. Embry's arrest, Rev. Hunter and Gibson stepped in front of the Mathis vehicle and refused to move. For this continued refusal to move, these two were also arrested and subsequently convicted under § 20-7(q).

THE CONTENTIONS

Having briefly viewed the facts, it is necessary to examine the precise relief requested by each party and the contentions of the parties arising therefrom. Plaintiff has asked that § 20-7 of the Charter, Related Laws, and Code of Ordinances of the City of Atlanta be declared unconstitutional.¹ This section represents the so-called "Disorderly Conduct" provision of the Atlanta ordinances. Plaintiffs contend that the ordinance is so sweeping, inclusive and over-broad as to be facially unconstitutional. Plaintiffs contend that this ordinance is basically the same, and equally as objectionable, as the ordinance struck down in Carmichael v. Allen, 267 F.Supp. 985 (N.D.Ga.1967). The following terms which appear in the new section are singled out and described as "forbidden terms" and as "sweeping terms": (1) angry threats (sub-section c); (2) riotous conduct (sub-section d); (3) congregate (subsections e, h, p, r); (4) danger, endanger (subsections a, b, c, d, n); (5) abusive (subsection a); outraged (subsection o); unlawful purposes (subsection g); violent (subsections a, b, c, q); tumultous (subsections a, b); and obscene (subsection 1). Plaintiffs stress that their activities are of a nature protected by the first amendment: picketing, presenting their grievances to the government, leafletting. The vice of the Atlanta statute attacked is that the terms of this statute are inherently subjective and broad and therefore subject to an extraordinary sweep in the hands of those charged with applying them. For purposes of their summary judgment, it is contended that there are no material disputes as to the facts, i. e., the statute is unconstitutional on its face. By virtue of the nature of their activities and the continued threat that this statute and its enforcement poses, plaintiffs contend that there is present a concrete adversity of interest. As a logical extension of the above, plaintiffs show that under the case of Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) and its predecessors, the Court has no discretion to abstain from deciding the merits of plaintiffs' claims. Finally, plaintiffs contend that their challenge validly extends to the ordinance in its entirety. Plaintiffs argue that the disorderly conduct ordinance is a unity, that it is not a loose association of disparate elements but rather it is a tightly-knit union of subsections designed to reach one and the same end in full cooperation with each other. Plaintiffs illustrate at length the interconnection between these subsections and rely heavily upon the practice of the Municipal Court of Atlanta wherein the judge has the right, or at least purports to have the right, to alter the formal charge to fit the particular violation established by the evidence.

On the other hand defendants contend that the Court does not have jurisdiction to pass on the constitutionality of any other subsection of § 20-7 except subsection (q). Defendants claim to have disavowed conviction under § 20-7(r), for the failure to give notice of that charge before trial. Defendants contend that there is no justiciable controversy as to the other subsections. It is defendants' position that subsection (q) is constitutional, for it is geared towards protecting the right of every citizen to engage in a lawful business without interference of a violent nature. Moreover, the defendants argue that they are entitled to injunctive relief against: (1) the continued violation of the civil rights of Mathis and all those workers similarly situated; (2) the continued violation of the civil rights of Landers and all those similarly situated; (3) the continued violation of section 20-7(q); the plaintiffs continuing to conduct themselves in any manner or in any way which would affect or diminish the fundamental constitutional rights guaranteed under the Constitution of all those persons named above.

JURISDICTION

The court is convinced that it cannot properly abstain from deciding the merits of plaintiff's claim, i. e. the claim that the Atlanta Ordinance is on its face unconstitutional in that its overbreadth results in (or could result in) an invasion of First Amendment protected activities. This conclusion is dictated by the decision in Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) and its predecessors.

On the other hand, the individual plaintiffs stand convicted and sentenced in the municipal courts and such convictions have not been appealed. Consequently, there is no power in the federal courts to set aside or correct any previous such conviction as being illegal on constitutional grounds or as being improper in that conviction was had under the wrong section of the ordinance. The proceedings here cannot substitute for an orderly appeal.

In such posture, the case is subject to declaratory relief on First Amendment grounds only and the proper inquiry is whether the ordinance violates the First Amendment on its face or in its "chilling effect" as threatened. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) and its...