United States v. Creekmore, CR-84-AR-104-NE.

• Decision Date: 26 November 1986
• Docket Number: No. CR-84-AR-104-NE.,CR-84-AR-104-NE.
• Citation: 648 F. Supp. 1369
• Parties: UNITED STATES of America v. Ricky Lynn CREEKMORE.
• Court: U.S. District Court — Northern District of Alabama

648 F. Supp. 1369

UNITED STATES of America v. Ricky Lynn CREEKMORE.

No. CR-84-AR-104-NE.

United States District Court, N.D. Alabama.

November 26, 1986.

Donald L. Colee, Jr., Birmingham, Ala. (Court-appointed), for Creekmore.

Bill L. Barnett, Birmingham, Ala., Craig Shaffer and Barbara Kammerman, U.S. Dept. of Justice, Washington, D.C., for U.S.

MEMORANDUM OPINION

ACKER, District Judge.

On November 13, 1986, Ricky Lynn Creekmore was found guilty of conspiring to violate the following provisions of 18 U.S.C. § 245:

(b) Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with —

* * * * * * (2) any person because of his race, color, religion, or national origin and because he is or has been —

* * * * * *

(B) participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof.

* * * * * *

shall be fined not more than $1,000 or imprisoned not more than one year, or both.

(emphasis supplied).

Creekmore has filed a post-trial motion for judgment of acquittal pursuant to Rule 29(c), F.R.Cr.P., asserting that the United States failed in its burden of proving one of the essential elements of the crime charged in the indictment and required by this statute. The pertinent language in the indictment reads:

... they conspired willfully to intimidate and to interfere with, by force or threat of force, participants in a public parade, because of the race and color of those parade participants and because the participants in the parade were taking part in a privilege and activity, that is, a public parade, provided and administered by the City of Decatur, a subdivision of the State of Alabama....

In pre-trial motions all nine alleged co-conspirators requested dismissal of the indictment, contending that the parade which was staged by the Southern Christian Leadership Conference on May 26, 1979, in Decatur, Alabama, was not a "privilege" or "activity" within the meaning of those terms in the statute and was neither "provided by" nor "administered by" the City of Decatur within the meaning of those terms in the statute. On July 14, 1986, in United States v. Handley, 644 F.Supp. 1165 (N.D.Ala.1986), this court predicted that this parade would constitute an "activity" which would come within the ambit of § 245(b)(2)(B). This prediction has come true. A discussion of the alternative word "privilege" was then and is now unnecessary to the decision. The court judicially knows that the City of Decatur is a municipality and therefore a subdivision of the State of Alabama. Although prior to the order of July 14, 1986, the United States submitted a "proffer" of its expected evidence on the issue of whether or not this "activity" was "provided by" or "administered by" Decatur¹, the court at that time could not know for sure what evidence the United States would actually present at trial. For good reason the parties would not stipulate to all facts which might bear on the issue. The court, therefore, denied defendants' said motions to dismiss but opined that if the facts were as anticipated by defendants "it may portend badly for the United States." 644 F.Supp. at 1177.

The court has now heard the oral testimony and has read and viewed the exhibits actually offered by the Government during the trial of Creekmore, and finds that the Government did, as was predicted, fail to meet its burden of proving beyond a reasonable doubt that the SCLC parade was "provided by" or "administered by" the City. The basic facts were as defendants had said they would be. 644 F.Supp. at 1177. Some of the evidence, but certainly not all of the evidence, as "proffered" by the United States and set forth in footnote 1, was actually offered at trial. Material facts in the "proffer" were never offered at trial.

On May 26, 1979, not only did Decatur not have an ordinance requiring that a parade permit must be applied for and granted before marchers could use the public streets, but the three ordinances which were introduced by the Government, taken singularly and in the aggregate, do not provide any legislative mandate by the City for the "providing of" or for the "administering of" any parade or public demonstration. Ordinance No. 2167, enacted on February 19, 1979, perhaps in anticipation of the kind of trouble which erupted on May 26, 1979, when the Klan and the SCLC clashed and when persons on both sides received gunshot wounds, made it "unlawful for any person other than a law enforcement officer to have in his possession or on his person while participating in or attending any demonstration ... any firearm." By no stretch of language can this ordinance, or either of the other two ordinances which were received, be construed "to provide" for a parade or "to administer" a parade. Greensboro's actual requirement of and the issuance of the parade permit were the controlling facts in United States v. Griffin, 585 F.Supp. 1439 (M.D.N.C.1983, 1984). The court will not repeat its earlier commentaries on United States v. Griffin. The court simply reaffirms them here.

Now that all of the evidence is in against one of the defendants, the United States still insists that this particular SCLC parade was both "provided by" and "administered by" the City. Its brief, however, limits itself to arguing for the proposition that this parade was "administered by" the City. The court therefore concludes that the United States cannot be serious in its contention that the parade was "provided by" the City. The Government's "administered by" argument is weak. Its "provided by" argument is non-existent. Webster tells us clearly that to "provide" means to "furnish" or to "supply," or to "make available." Inherent in the verb "provide" is the concept that the "provider" act not as some sort of auxiliary or monitor of the item being "provided" but that he actually create or initiate the thing being "provided."

Judge Flannery, in United States v. Griffin, appropriately spent his time wrestling with the phrase "administered by." He gave no attention to the phrase "provided by." This leaves the Government in Creekmore's case with the slender reed "administered by." Webster defines "administer," in the only context in which the word could here be applicable: "to have charge of as chief agent in managing, as public affairs; conduct; direct." Webster's Deluxe Unabridged Dictionary, 26 (2d Ed.1983). (emphasis supplied). The same meanings of the word "administer" are acknowledged in Black's Law Dictionary, as well as in the cases cited in Words and Phrases. Under the word "administer" Words and Phrases includes the following comment on United States v. Griffin as its most recent source for understanding the meaning of the word "administer:"

Where city had affirmative responsibility to regulate time, place and manner of parade in order to insure public order, and had required organizing committee to apply for parade permit, to set forth objectives, time, date and proposed parade, and permit set forth certain conditions for parade, city's close supervision and control of parade qualified parade as having been `administered' by city within meaning of state programs' provision of statute governing federally protected activities.

2 Words and Phrases (Supp.1986) (citing United States v. Griffin, 585 F.Supp. 1439, 1442 (M.D.N.C.1983, 1984)) (emphasis supplied).

Not only was there no parade permit required or issued by Decatur, but there was no pattern or practice for seeking or obtaining the City's permission, formal or informal, for conducting a parade or a public demonstration. These "activities" obviously were considered by Decatur simply as lawful exercises of the freedoms of speech and assembly, not requiring prior approval or the imposition of particular conditions such as time, place, route, etc. Not only did Decatur not have "charge over" or "manage" this particular parade, but the testimony of the Government's very first witness, Sergeant Collier, a Decatur police officer, was that although he was in charge of monitoring and protecting the SCLC marchers, he was unaware of any prearranged parade route, although everyone could pretty well guess the route, and that when he asked Reverend Cottonreader, the SCLC leader, the intended route of the parade, Reverend Cottonreader refused to give it. Does this sound like the City played the role of decision maker? Surely not. An "administrator" is a decision maker, a leader. Another Government witness, Reverend Turner, testified that Sheriff Ward (who, incidentally, was not employed by the City but by Morgan County, a State subdivision which the Government expressly denies "administered" this parade) asked the SCLC to delay the start of its march. This testimony was not only undisputed but was confirmed by another SCLC witness who was put on the stand by the Government. She testified that Reverend Cottonreader made it stridently plain to the police that the SCLC would march when and as it planned and not in accordance with any suggestion made by municipal or county authorities.

Pac Self, Decatur's police chief in May 26, 1979, was unavailable at trial because he died before the long-delayed indictment. The Government carefully elicited from Reverend Turner as much as it could in the way of conversations between Reverend Turner and Chief Self prior to the parade. The Government obviously was trying to track as many of the factors outlined in United States v. Griffin as it could. Even without the possibility of Creekmore's obtaining any contradictory testimony from Chief Self, the Government failed to establish a sufficient similarity between Greensboro's degree of participation in and control over the Greensboro march and Decatur's degree of participation in and control over the Decatur march to turn United States v. Griffin...