Pritchard v. Downie

• Decision Date: 22 March 1963
• Docket Number: Civ. A. No. 3768,3805-3807.,3786-3789,3769
• Citation: 216 F. Supp. 621
• Parties: Mrs. Mary Ellen PRITCHARD et al., Plaintiffs, v. Robert C. DOWNIE, Administrator of the Estate of Eugene G. Smith, Deceased, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

216 F. Supp. 621

Mrs. Mary Ellen PRITCHARD et al., Plaintiffs, v. Robert C. DOWNIE, Administrator of the Estate of Eugene G. Smith, Deceased, Defendant.

Civ. A. Nos. 3768, 3769, 3786-3789, 3805-3807.

United States District Court E. D. Arkansas, W. D.

March 22, 1963.

Sidney W. Provensal, Jr., New Orleans, La., Amis Guthridge, Little Rock, Ark., for plaintiffs.

Joseph C. Kemp, Robert S. Lindsey, John M. Harrison, and Winslow Drummond, Little Rock, Ark., for defendant.

YOUNG, District Judge.

Nine lawsuits were originally brought by ten plaintiffs against Little Rock Police Chief Eugene G. Smith under 42 U.S.C. § 1983. They grew out of occurrences in August 1959 when Little Rock Central High School was racially integrated. All of these plaintiffs but one, as well as a number of other persons, were arrested by Little Rock police near the high school.

Each plaintiff has alleged that he or she was deprived of a right guaranteed by the due process clause of the Fourteenth Amendment to the United States Constitution. While the facts vary as to each plaintiff, they contend generally that they were: (1) arrested without cause, (2) excessive force was used in connection with the arrest of several of them, (3) they were falsely imprisoned, (4) they were denied opportunity to promptly post bail or to consult their attorneys, and (5) that certain of the plaintiffs who were minors were carried to the city jail instead of the county juvenile court.

Before these cases could be brought to trial, the defendant Smith died, and Robert C. Downie, Administrator of the Smith estate, was substituted as party defendant. After the death of Chief Smith, motions to dismiss these actions were filed by the defendant on the theory that they abated upon the death of defendant Smith. These motions were granted by the court, and the complaints dismissed. Lauderdale v. Smith, 186 F. Supp. 958 (E.D.Ark.1960), but the Court of Appeals for the Eighth Circuit reversed and reinstated the complaints. Pritchard v. Smith, 289 F.2d 153 (8th Cir., 1961). (The Lauderdale case itself was actually not appealed, and the court's 1960 order of dismissal is therefore dispositive of it.)

On November 9, 1961 the defendant filed a motion to dismiss, alleging that the claims of the defendants were barred by the Arkansas Statute of nonclaim. Act No. 140 of Acts of Arkansas for 1949, §§ 111 and 110, Ark.Stats., (Pocket Supp., 62-2602 and 62-2601). On February 9, 1962 this motion was denied (see Pritchard v. Downie, 201 F.Supp. 893 (E.D.Ark.1962)), but the defendant's application for leave to take an interlocutory appeal was granted, and the decisions were appealed. On November 13, 1962 the Court of Appeals affirmed this court's ruling. Downie v. Pritchard, 309 F.2d 634 (8th Cir. 1962).

On January 15, 1963 the remaining cases were consolidated and tried to the court on January 21-23, 1963. The court's findings of facts and conclusions of law are set out in the following discussion.

At 1:00 p. m. August 12, 1959, Little Rock Central High School was racially integrated. About 10:00 that morning a mass meeting was held on the steps of the Arkansas Capitol Building to protest the integration of the high school. The Governor of the State and others spoke to the crowd. After the speeches more than 200 people began to march toward Central High School. The marchers proceeded to the intersection of Fourteenth and Schiller Streets, a block east of the school, where they were met in the street by Police Chief Eugene G. Smith and a complement of Little Rock police officers. Chief Smith was unarmed. He was in charge of the police and carried a megaphone with which he addressed the crowd. Most of the other policemen carried night sticks or side arms.

In the forefront of the marchers were four or five men carrying American flags. Others carried signs indicating their opposition to integration.

The marchers stopped within three or four feet of the police line. By that time they were transformed into a shouting and unruly mob. Members of the mob cursed the police. Four men and youths in the front of the march tried to push through the police line. The police seized them and led them to patrol cars.¹ Chief Smith told the people to leave the street and to disperse and go home. A few obeyed, but the majority continued in their protest. The police attempted to move segments of the crowd out of the street. Several resisted and were arrested.

By 11:30 the crowd had increased to over 300. At about 11:45 a fire truck arrived, and high pressure fire hoses were attached to a hydrant and the water from the hoses was directed toward those who had refused to vacate the streets. The water from the fire hoses calmed the crowd temporarily, but at about 12:20 p.m. the crowd started coming into the streets again. During all of this time Police Chief Smith had urged the crowd to disperse and go home. By 1:00 p.m. the crowd had quieted and most of the mob had departed.

The police arrested a number of individuals, including all of the plaintiffs in this action except Mrs. Lela Sosebee.

Following is a short summary of the facts as to each individual plaintiff.

LEON KYZER

Leon Kyzer, who was 16 years old at the time of his arrest, marched in the forefront of the mob from the Capitol to the intersection of Fourteenth and Schiller and was one of the first of the demonstrators to be arrested. When commanded to leave the street and the vicinity he failed to do so and attempted to push past the officers, and after a struggle in resisting the officers he was quickly arrested and placed in the patrol wagon standing nearby. Kyzer was taken to the city jail and was held until around 5:00 in the afternoon; he made no request to use the telephone and was in no way harmed at the police station. Several newspapers ran a picture of him being taken to the patrol wagon, which he contends caused him much embarrassment.

Kyzer testified that Eugene Smith raised a club as if to hit him just before the arrest, but Smith did not have a club that day.

Leon Kyzer was charged with disturbing the public peace, under § 41-1401 of the Arkansas Statutes.

MARY ELLEN PRITCHARD

Mrs. Pritchard had made the march from the Capitol and had failed to disperse when so commanded. Shortly before her arrest she was standing on the northeast corner of the intersection. She was asked to move from the corner, but refused; Officer Bentley then attempted to escort her away from the corner, but Mrs. Pritchard resisted. While the officers were arresting her she cursed them and physically attacked Officer Bentley. Officers King, Bentley, Weeks, and Alloway all assisted in Mrs. Pritchard's arrest.

Mrs. Pritchard could not say nor was there any evidence to the effect that Chief Smith had anything at all to do with her arrest or treatment after arrest.

Mrs. Pritchard was taken to the city jail, photographed, fingerprinted, and held until around three o'clock that afternoon; she does not contend that she was mistreated in any way while at the jail.

Mrs. Pritchard was charged with loitering, under § 583 of Brickhouse & Castle's Digest of Little Rock Ordinances; obstructing and resisting an officer, under § 41-2801 of the Arkansas Statutes; and assaulting an officer, under § 41-2802 of the Arkansas Statutes.

CALVIN PARRISH

Calvin Parrish, who was 18 in 1959 and weighed about 210 pounds, and his father were not members of the marchers; they joined the crowd at Fourteenth and Schiller. Calvin had been in and out of the street and had refused to disperse upon command. Chief Smith shouted to his officers to "get that big boy", and an attempt was made to apprehend him by Officer Bair. Bair contends that Calvin was using abusive language and that when he attempted to make the arrest Calvin jerked away and ran; Calvin himself admits running from the officers. A running battle ensued, and at last Calvin was struck on the head by Officer Chambers and suffered two rather nasty cuts. According to Sgt. Moore, Parrish would come out of the crowd, "holler", and go back into the crowd. He was "loud, yelling, and called the police `nigger lovers'." Sgt. Bentley testified that he was struck by Parrish after he followed him into the crowd. Officer Bair said that Parrish had been using abusive language, and when he tried to arrest him he went into the crowd. After Bair caught him Parrish hit him with his fist and ran. The other officers caught him and four of them took him to the "paddy wagon". Officer Weeks saw him fighting an officer and grabbed him but he got loose. Parrish himself contended that the only thing Chief Smith had to do with his arrest was to point to him and say "Pick him up." Parrish also testified that if he hit a policeman he didn't remember it.

He was then taken to the city jail where he stayed for 15 or 20 minutes before being taken to the University Hospital for emergency treatment; after the cuts on Calvin's head were treated he was returned to jail where he was fingerprinted, photographed, and released around 3 o'clock in the afternoon.

H. E. Parrish, Calvin's father, said that he shouted for the policemen not to hit Calvin because he was a sick boy.² According to the officers, none of them heard him. H. E. Parrish knew where Calvin was at all times, and was allowed to be with him at the emergency ward at the hospital. Calvin Parrish was charged with resisting an officer, under § 41-2801 of the Arkansas Statutes; and assaulting an officer, under § 41-2802 of the Arkansas Statutes.

MARILYN and GLENNA PAUL

Marilyn, 14, and Glenna, 16, went to the rally at the Capitol; they did not participate in the march, but joined the demonstrators at Fourteenth and Schiller. It is apparent from the evidence that both girls stayed in the front of the crowd and were in the street after Smith had instructed them to leave the street, disperse, and return to their homes. Both yelled and jeered at the police. At the time of their arrest the...