Lance v. Plummer

• Citation: 353 F.2d 585
• Decision Date: 09 December 1965
• Docket Number: 22035.,No. 21904,21904
• Parties: Charles LANCE, Jr., Appellant, v. Lucille PLUMMER et al., Appellees (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

353 F.2d 585 (1965)

Charles LANCE, Jr., Appellant, v. Lucille PLUMMER et al., Appellees (two cases).

Nos. 21904, 22035.

United States Court of Appeals Fifth Circuit.

December 9, 1965.

COPYRIGHT MATERIAL OMITTED

C. Harris Dittmar, Jacksonville, Fla., Hamilton D. Upchurch, St. Augustine, Fla., Upchurch & Upchurch, St. Augustine, Fla., Bedell, Bedell, Dittmar & Smith, Jacksonville, Fla., of counsel, for appellant.

William M. Kunstler, New York City, Tobias Simon, Miami, Fla., Jack Greenberg, Leroy D. Clark, Charles S. Ralston, New York City, for appellees; Ronald Goldfarb, of counsel.

James W. Kynes, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., for State of Florida, amici curiæ.

Before TUTTLE, Chief Judge, THORNBERRY, Circuit Judge, and CARSWELL, District Judge.

TUTTLE, Chief Judge:

This is an appeal from an injunction forbidding the appellant to interfere with the compliance by certain St. Augustine restaurants and motels with Title II of the Civil Rights Act, and from a judgment of civil contempt against appellant for violation of the order of injunction. The two appeals have been consolidated in this Court, so that the validity of the injunctive order and the order adjudging Lance in civil contempt are both before the Court for consideration.

On July 20, 1964, Lucille Plummer and seven other named individuals filed suit against James E. Brock and twenty other named individuals and corporations (designated as Class I defendants), who were owners, managers or operators of certain restaurants or motels in St. Augustine, Florida, and against Holsted R. Manucy and seventeen other named individuals, Ancient City Hunting Club or Ancient City Gun Club, and U. S. Klans, Knights of the Ku Klux Klan, Inc. (designated as Class II defendants). Jurisdiction of the district court was invoked pursuant to (a) 28 U.S.C.A. § 1343 (3), as also the Fourteenth Amendment; (b) 42 U.S.C.A. §§ 1981-85; and (c) Title II of the Civil Rights Act of 1964.

On July 28, 29 and 30, 1964, the district court received evidence on the plaintiffs' application for preliminary injunction with respect to Class I defendants. A subsequent hearing was scheduled on plaintiffs' application for preliminary injunction with respect to Class II defendants, but was not held, because on July 30, 1964, counsel for certain of the named Class II defendants, in a stipulation entered into in open court, consented to the entry of a temporary restraining order enjoining his clients, until further order of the court, from committing any of the acts charged in the complaint to have been theretofore committed by them, without admitting that such acts had in fact been committed.¹

On August 5, 1964, the district court entered findings of fact and conclusions of law, in which it was found that one or more named plaintiffs had on some occasion subsequent to July 2, 1964, been refused service in each of the named Class I defendants, "solely on the ground of race or color," and the court concluded that preliminary injunction should issue. The injunction, issued to be effective August 8, 1964, forbade the Class I defendants, their agents, servants, employees, attorneys, and all persons in active concert or participation with them from further violation of Title II.

With respect to the Class II defendants, the injunction order further provided:

"3. Effective immediately, and without the posting or filing of injunctive bond by Plaintiffs, it is further ORDERED that Holsted Richard Manucy, Gene Manucy, Holsted David Manucy, Herbert R. Manucy, Alonzo H. Manucy, Jr., Buddy Cooper, M. E. Cooper, Bobby Lee Bacon, Melvin E. Manucy, Pat Winston Howard, and Holsted Richard Manucy as President of Ancient City Hunting Club and/or Ancient City Gun Club, an unincorporated and unchartered voluntary association of individuals, and each member of said association or organization, and any other persons to whom notice or knowledge of this Order may come, shall not in any way interfere with, molest, threaten, intimidate or coerce any person of the Negro race with the purpose of interfering with such person\'s right to seek, use and enjoy the goods, services, facilities, privileges, advantages and accommodations of any, all or either of the places of public accommodation identified by name and address in Paragraph 1 hereof, nor attempt to so interfere with, molest, threaten, intimidate or coerce any person of the Negro race for such purpose, nor punish or attempt to punish any person of the Negro race for exercising, having exercised or attempting to exercise any right or privilege granted hereunder.

"4. Effective immediately, and without the posting or filing of injunctive bond by Plaintiffs, it is further ORDERED that none of the persons specifically identified in Paragraph 3 hereinabove, nor any other person to whom notice or knowledge of this Order may come, shall in any way interfere with, molest, threaten, intimidate or coerce any, all or either of the several Class I Defendants identified by name, establishment and address in numbered Paragraph 1 hereof, with the purpose of causing him, her, it or them to deny, abridge, withhold, condition, limit or otherwise interfere with Negro persons in their securing food, beverages, service and accommodations at and in their admission to and use and enjoyment of the goods, services, facilities, privileges, advantages and accommodations, of any, all or either of the said establishments identified in Paragraph 1 hereof." (Emphasis supplied.)

On August 11, 1964, Arthur Funderberk, and two other Negroes, none of whom was a named plaintiff in the case, sought and received service in the Pancake House, a restaurant operated by William Chew, one of the named Class I defendants. The appellant, Charles Lance, Jr., who was a volunteer, unsalaried, deputy sheriff² who said he had been instructed by the sheriff of St. Johns County to protect Negroes testing the Civil Rights Law, was in the restaurant at the time. As Funderberk and his companions left the restaurant, they were followed by two white teenagers. The trial court found that Lance cursed the three Negroes who testified they heard the words, "black bastards." Lance testified that he said, "You know I have to protect these black sons of bitches."

On the following day, Funderberk and a companion unsuccessfully sought to register for a room in the Palms Congress Inn motel, adjoining the Pancake House and a part of the same establishment owned by Empire Inns, Inc., and managed by William Chew. At this juncture Lance, who had driven up to the motel right behind Chew entered the motel, and upon receiving what the court could find to be a "signal" from Mrs. Chew, proceeded to follow the Negroes, after they left the motel in a car at a time when the trial court found they neither needed nor asked for any protection from the sheriff's office; nor were they informed by Lance at this time or any other time that he had any such purpose in following them.³

On August 14, 1964, a sworn petition was filed in the main cause, referring to the injunction order of August 5 and charging that Chew and Empire Inns, Inc., had violated the order and should be ordered to show cause why they should not be held in civil contempt. In addition, an affidavit was sworn to, stating that "Upon information and belief * * Charlie Lance * * * is a member of the Ancient City Hunting Club, and as such * * * a Class II Defendant herein." On August 14, the trial court issued an order directing "the defendants William Chew * * * Empire Inns, Inc., and Charles Lance Jr.," to appear before him on August 17 to show cause "why they should not be adjudged to be in civil contempt * * * by their wilful disobedience of the Order for Interlocutory Injunction entered * * * on August 5, 1964." Before the show cause order was served upon Lance, on the evening of August 14, Funderberk drove up to the adjoining motel and let two white men out of his car. At this time, appellant Lance was having dinner with his family in the Pancake House; whereupon he left his family and again followed Funderberk for a considerable distance.⁴

On August 15, the show cause order was served upon Lance and a hearing was had resulting in findings near the close of the hearings including the following:

"With respect to the respondent, Charles Lance, Jr., the Court finds that, first of all, he had actual knowledge and notice of the entry of the injunction and, in general, of its terms; that on August 11, 12 and 14, he violated the terms of the Injunctive Order by cursing these three men, Funderberk, McBride and Lawton, as they were leaving the premises of the Palms Congress Restaurant, the Pancake House, I guess it\'s called; that he further violated the terms of paragraphs 3 and 4 of the Injunctive Order by intimidating, molesting, threatening, or attempting to do these things, to Arthur Funderberk on August 12 and August 14 by following him away from the Palms Congress Motel and Restaurant."

Subsequently, on August 20, the trial court entered the following order:

"That by virtue of the findings herein, Charles Lance, Jr., is hereby added as a named Class II defendant in the interlocutory injunction of August 5, 1964, and further, that the respondent, Charles Lance, Jr., having been found to have actual notice of the interlocutory injunction dated August 5, 1964, and to have violated the terms of paragraphs 3 and 4 thereof is hereby found to be guilty of civil contempt. The respondent, Charles Lance, Jr., is hereby ordered to obey all terms of the interlocutory injunction issued herein. Within twenty days of this order, he shall submit a verified report to this Court that he has resigned his position as deputy sheriff of St. Johns County, Florida, and surrendered his badge and other incidents of office and of police equipment to his superiors; and that he shall no longer act under any color, guise, or pretense as a law enforcement or peace officer. That

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