Kelly v. Page

• Decision Date: 16 July 1964
• Docket Number: 20711.,No. 20720,20720
• Citation: 335 F.2d 114
• Parties: Asa D. KELLY, Jr., Individually and as Mayor of the City of Albany, et al., Appellants, v. M. S. PAGE et al., Appellees. W. G. ANDERSON et al., Appellants, v. The CITY OF ALBANY, GEORGIA, et al., Appellees. The CITY OF ALBANY, GEORGIA, et al., Appellants v. W. G. ANDERSON et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

335 F.2d 114 (1964)

Asa D. KELLY, Jr., Individually and as Mayor of the City of Albany, et al., Appellants, v. M. S. PAGE et al., Appellees.

W. G. ANDERSON et al., Appellants, v. The CITY OF ALBANY, GEORGIA, et al., Appellees.

The CITY OF ALBANY, GEORGIA, et al., Appellants v. W. G. ANDERSON et al., Appellees.

Nos. 20720, 20711.

United States Court of Appeals Fifth Circuit.

July 16, 1964.

H. G. Rawls, City Atty., Albany, Ga., E. Freeman Leverett, Deputy Asst. Atty. Gen. of Georgia, Elberton, Ga., for City of Albany, Ga., et al.

Constance Baker Motley, New York City, Donald L. Hollowell, Atlanta, Ga., C. B. King, Albany, Ga., William M. Kunstler, and Norman Amaker, New York City, for Kelly et al.

Before BELL, Circuit Judge, and INGRAHAM, District Judge.^*

BELL, Circuit Judge.

These cases, consolidated for trial and for appeal, are the residue of the struggle in Albany, Georgia between various civil rights groups known as the Albany Movement, and the officials having charge of the government of that city.

The mayor, city manager and chief of police, by complaint filed July 20, 1962, sought to enjoin those individuals and organizations taking the lead in the Albany Movement from sponsoring, financing, inciting or encouraging unlawful picketing, parading, marching or congregating in Albany, and from doing any other act designed to provoke a breach of the peace. The denial of the prayer for injunction in that case forms the subject matter of the appeal in No. 20,720.

On July 24, 1962 the leaders of the Albany Movement filed two complaints in the District Court. Both were class actions. One sought injunctive relief against interference on the part of the city of Albany and its officials with their First Amendment rights of peaceful assembly and protest, and picketing. The city officials named as defendants¹ in that complaint filed a cross-claim which for all practical purposes is identical to their complaint in No. 20,720, supra. The District Court denied the prayers of both the plaintiffs and cross-claimants for injunctive relief, and this action of the court forms the subject matter of the appeal and cross-appeal in No. 20,711.

The other complaint filed on this date by the Albany Movement leaders sought relief from racial segregation in certain municipally-owned and municipally-regulated facilities. That complaint was dismissed after trial. On appeal this court reversed. Anderson v. City of Albany, 5 Cir., 1963, 321 F.2d 649. The District Court was directed to grant injunctive relief, and to that end the public facilities involved in that case have now been desegregated by court order. Meanwhile, certain municipal ordinances requiring segregation were repealed, and the District Court also enjoined enforced racial segregation on public buses, in the bus and train terminals, in taxicabs and theater ticket lines, and arrests for attempting to lawfully use these or the municipally-owned or controlled facilities on a non-segregated basis.

Some of the facts having to do with these cases are set out in the opinion rendered on the appeal of that case. The occurrences necessary to our consideration may be briefly stated. They took place during the period November 1961, when the Albany Movement was formed, to July 1962. The activities of the Movement included a boycott directed at city buses and merchants, picketing, and organized marches into downtown Albany on several occasions. No parade permits were issued, and the evidence is disputed as to whether or not the marchers ignored traffic lights, blocked traffic, and otherwise created congestion necessitating the blocking off of streets, the closing of stores, and the use of the entire police force to maintain order.

It is undisputed that violence attended some of these marches. The Movement leaders contend that it was among spectators and not among their groups, while the city officials contend that it was caused in any event by the acts and doings of the Movement. Whatever the source of the cause, and the District Court made no findings of fact in this regard, it is clear that this case comes to us in a background of civil disorder. Rocks and bottles were thrown at police officers, with consequent injury to at least two officers. Circumstances attendant to the demonstrations included false fire alarms, and damages to a police paddy wagon. On one occasion the mirror was shot off the paddy wagon, on another gas soaked rags were placed under the dash and ignited, and on another a concrete block was placed under it with the result that the oil pan was broken. There was also evidence that filthy and obscene epithets, not necessary to be detailed here, were frequently directed at police officers.

The last big demonstration was on July 24, 1962. There were only forty marchers but from 3,000 to 4,000 spectators participated in the ensuing confusion and disorder. Violence was avoided when the chief of police marched all available forces in a column toward the group in a successful effort to curb the disturbance that was in progress. No force was used. There was testimony that Negro spectators on both sides of the street on which the police were marching would run out in the street and spit at the officers.

During the period of these activities about 1,100 cases were made by the police, and one of the prime contentions of the civil rights leaders is that the policy of massive arrests was the stratagem used by the city to deprive them of their rights to peacefully assemble and petition for the redress of their grievances. First Amendment, United States Const., and Art. I, § I., par. XXIV, Ga.Const. To this must be added the fact that there was substantial evidence of interference by the police with small-scale picketing, which, from aught that appears, was being peacefully conducted.

The city points to evidence that the leaders of the Movement stated they would not obey the city ordinances relating to parade permits, blocking the streets, and refusing to move on and that Dr. Anderson once threatened to bring 1,000 marchers to the city hall if the city refused to release certain prisoners. Dr. Martin Luther King, Jr. called for a day of penance after the march on the night of July 24, 1962 and the difficulty subsided. The city points to this as evidence that the leaders were in control of the spectator participants as well as the marchers.

By way of factual summation, and in the absence of specific findings by the District Court, it may be said that those engaged in the Albany Movement were seeking to exercise their constitutional rights while the city officials were seeking to carry out their duty to the public, under the concept of ordered liberty, of maintaining law and order. Whether either side overstepped the bounds of law is the question. The answer to this question will in large measure determine whether the District Court committed error as charged.

As this court noted in Anderson v. City of Albany, supra, such a determination should first be made by the District Court. That has not been the case since the District Court was satisfied to deny injunctive relief on the basis of changed conditions, i. e., that the trouble giving rise to the complaint had ended. Our view is that this method of determination, at least for the purposes of review, fell short of the mark. We affirm in case No. 20,720,² but vacate and remand in No. 20,711 for full findings of fact and conclusions of law. In so doing, we deem it good judicial administration to point to certain changed conditions and applicable aspects of the law that will be pertinent to reconsideration by the District Court on remand.

There are no jurisdictional problems in No. 20,711. The complaint rested on 28 U.S.C.A. § 1343(3) and 42 U.S.C.A. § 1983. The cross-claim arose out of the same transaction or occurrence, and no separate jurisdictional base is necessary. Rule 13(g), F.R.Civ.P. See Childress v. Cook, 5 Cir., 1957, 245 F.2d 798; 3 Moore's Fed.Prac., ¶ 13.36; and 1 A Barron & Holtzoff (Wright Ed.), § 392.

The findings and conclusions to be made on remand may be made on the present record or as supplemented by additional evidence. Cf. United States v. DeVane, 5 Cir., 1962, 306 F.2d 182. In either event, they must be adjusted to the change in facts. In this connection, it is apparent that a good bit of the trouble between the Albany Movement and the city officials was accounted for by the city ordinances requiring segregation, and by the practice of segregation in public facilities such as libraries and parks. That bone of contention, as stated above, has now been resolved. Another problem was the Albany parade ordinance. The city contends that the leaders refused to obey the ordinances while the leaders contend that all requests under it were uniformly denied by the city manager in whose sole discretion the granting of permits rested, and that the ordinance itself was lacking in constitutional standards in that it did not contain a definition of a parade. See Hague v. C. I. O., 1939, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423. The constitutionality of this ordinance was not put in issue in the District Court, and thus remains for consideration. Another change in the factual background is that a beginning is being made in the desegregation of the public schools of Albany and Dougherty County. See Gaines v. Dougherty County...