Wells v. Hand

• Citation: 238 F. Supp. 779
• Decision Date: 24 February 1965
• Docket Number: Civ. A. No. 821.
• Parties: Samuel B. WELLS, Donald Harris et al., Plaintiffs, v. Fred HAND, Jr., individually and as Solicitor General, Albany Judicial Circuit, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

238 F. Supp. 779

Samuel B. WELLS, Donald Harris et al., Plaintiffs, v. Fred HAND, Jr., individually and as Solicitor General, Albany Judicial Circuit, et al., Defendants.

Civ. A. No. 821.

United States District Court Middle District Georgia, Albany Division.

February 24, 1965.

C. B. King, Albany, Ga., Charles H. Jones, Jr., New York City, for plaintiffs.

Hilliard P. Burt, H. G. Rawls, Albany, Ga., Albert Sidney Johnson, Asst. Atty. Gen., Atlanta, Ga., for defendants.

Before BELL, Circuit Judge, and BOOTLE and ELLIOTT, District Judges.

ELLIOTT, District Judge:

In attempting to make an arrest of a Negro man on August 15, 1964 a member of the City Police force of the City of Albany, Georgia fired a shot which resulted in the death of the man sought to be arrested. Neither the Plaintiff Wells nor the Plaintiff Harris witnessed this incident, but, based on "reports" which they heard concerning the matter, they concluded that the officer was guilty of "murder" and they decided that they would do something about it. During that afternoon they prepared two handbills and distributed them widely in the Negro community in the City of Albany. The first handbill was as follows:

"ALBANY POLICE HAVE MURDERED ANOTHER NEGRO! THIS AFTERNOON ANOTHER ONE OF PRITCHETT'S GUNMEN SLAUGHTERED A NEGRO MAN, WILBERT JONES, OF FRONT STREET. THIS BLACK MAN, LIKE THE LONG LIST OF OTHERS KILLED BY PRITCHETT'S MURDEROUS MOB...INCLUDING ONE GUNNED DOWN TWO WEEKS AGO IN C.M.E....PLUS HARRIS ASBURY, MILLER AND OTHERS, WAS UNARMED AND IN NO WAY BREAKING THE LAW WHEN HE WAS SHOTGUNNED IN THE BACK. TONIGHT IS THE TIME TO ACT BLACK MAN**AREN'T YOU TIRED OF GOING TO FUNERALS? AREN'T YOU READY TO ACT? BE AT EUREKA BAPTIST CHURCH**IN HARLEM**ON JACKSON STREET AT 8:00 TONIGHT BE AT EUREKA BAPTIST CHURCH TONIGHT IN HARLEM JACKSON ST. NEXT TO GILES 8:00 p.m." (The Pritchett referred to is the Chief of Police in Albany.) The other handbill was in this fashion "ALBANY POLICE HAVE MURDERED ANOTHER NEGRO! --------------- ALBANY POLICE HAVE KILLED TOO MANY NEGROES ... REMEMBER HARRIS? ... REMEMBER ASBURY? ... REMEMBER MILLER? 2 WEEK AGO A NEGRO WAS SHOT IN THE BACK IN CME IT IS TIME TO ACT! BE AT EUREKA BAPTIST CHURCH TONIGHT IN HARLEM JACKSON ST. NEXT TO GILES 8:00 P.M."

In response to the urging of the handbills a crowd gathered at the street corner near the Baptist Church mentioned at the appointed hour of 8:00. This was on Saturday night near the center of what is known as "Harlem" and in an area where there is normally considerable pedestrian and automobile traffic and at a time when a street corner orator would be likely to attract attention. The Plaintiff Wells rented a microphone and loud speaker and addressed the crowd assembled, which he estimated to be between 200 and 300 persons. The gist of his speech was to remind the crowd of the details of what he considered to be police atrocities against members of the Negro race and his remarks were in the same general tone as suggested by the handbills previously distributed. He urged the crowd to do something about it and he stated that he had prepared a petition which he was going to present to the Chief of Police at the City Hall and that he was going to march from the meeting place down to the City Hall for that purpose, and he invited the crowd to go with him. He then set out on foot to march to the City Hall and a considerable number of his audience, being thus agitated and urged, proceeded to go with him. From the evidence it is difficult to determine with any degree of certainty how many there were in this throng, but it is clear that the number was sizeable. The Plaintiff Wells led the march and the Plaintiff Harris brought up the rear. Being thus shepherded the multitude set out for the City Hall, which was some blocks away. As might be expected, the march was attended by considerable commotion, and before reaching the announced destination bottles, stones and bricks were being hurled, plate glass windows in business establishments were being knocked out, citizens were being threatened and the peace and security of the entire area through which the procession was passing was being disrupted. There is no evidence that the Plaintiffs Wells and Harris committed any of these acts of violence but it is clear that the acts were being committed by those marching with them or by sympathizers accompanying the marchers. After having proceeded some distance on the way the Plaintiff Wells and the Plaintiff Harris decided for some reason to go back to the original meeting place and make the trip by automobile and this they did with a small group. After they withdrew, acts of vandalism and looting were widespread in the area into which the crowd had been led and these acts were directed toward business establishments either owned or operated by white persons. Principal victims were a jewelry store, a liquor store, a loan company, a drug store and a bus station. Physical damages amounted to several thousand dollars. It was not until some two and a half hours later that a semblance of order was restored in that section of the community. A number of arrests were made for burglary, looting, assaults and related offenses. In the meantime Plaintiffs Wells and Harris, together with a small group, had gone to the City Hall where the Police Headquarters are located to present their written complaint to the Chief of Police, Mr. Pritchett. They learned that the Chief was out of town and they presented their complaint to the Assistant Chief, Mr. Summerford. He received the complaint and stated to the group that he would hand it to Chief Pritchett upon his return to the city. It was during the time when the Plaintiffs Wells and Harris were in conference with the Assistant Chief that the reports began coming in to headquarters concerning the damage and looting in the area from whence the Plaintiffs had recently come and the Assistant Chief inquired of Wells and Harris whether their group was responsible for that activity. The Plaintiffs disavowed any responsibility in the circumstances.

Based upon subsequent investigation the Chief of Police, Mr. Pritchett, made affidavit before G. S. Thornton, Justice of the Peace, that a warrant might issue for the arrest of the Plaintiff Wells for violation of § 26-902 of the Georgia Code, attempting to incite insurrection, and also for violation of § 26-904 of the Georgia Code, charging him with circulating insurrectionary papers.¹ By virtue of the warrant so issued the Plaintiff Wells was taken into custody and he was detained for thirteen days without bond, the offense described in § 26-902 being a non-bailable offense. Upon investigation, the Solicitor General, Mr. Hand, who would be the state prosecutor of the offenses, concluded that the Plaintiff Wells could not be prosecuted under § 26-902 and he directed that the Plaintiff Wells be released from any charge under that section, whereupon the Plaintiff Wells was released on $2,500.00 bond with respect to the charge pending against him under the provisions of § 26-904. No charge has ever been made against the Plaintiff Harris for violating § 26-902. He has been charged by warrant with violating § 26-904 and bond has been set at $2,500.00. The Plaintiff Harris has never been taken into custody under this warrant, so the Plaintiff Harris has never been jailed and the Plaintiff Wells has not been in custody since August, 1964. As heretofore indicated, all of the matters related took place in August, 1964.

On September 15, 1964 the Plaintiffs filed the complaint which is now before us under the provisions of Title 42 U.S. C. §§ 1971, 1981 and 1983, by which they sought to have a three-judge district court convened pursuant to Title 28 U.S.C. §§ 2281 and 2284. By subsequent amendment Plaintiffs also invoked the provisions of Title 28 U.S.C. § 1343(3) and (4).

This complaint as originally filed contained a number of allegations for which there is no support in the record and joined a number of defendants who have since been stricken as parties. Originally the Mayor and all of the members of the City Council of the City of Albany were named as parties defendant. The City of Albany itself as a body corporate was also named a party defendant. The Sheriff of Dougherty County was also named. No evidence of any nature connected these defendants with the matter under consideration and the City of Albany and the Mayor and the several members of the City Council were stricken as parties Defendant on motion of the Defendants and the Sheriff of Dougherty County was stricken as a party Defendant on motion of the Plaintiffs. One additional Defendant, Billy L. Manly, Captain of Detectives, was added by amendment to the original complaint. The Defendants remaining in the case are Fred Hand, Jr., Solicitor General of the Albany Judicial Circuit,² G. S. Thornton, Justice of the Peace in Dougherty County,³ Laurie Pritchett, Chief of Police of the City of Albany and Billy L. Manly, Captain of Detectives in the Albany Police Department. As originally filed, the complaint prayed for an injunction to issue restraining the Defendants "from denying plaintiffs, or members of the class on whose behalf plaintiffs sue, the right to participate in the solicitation, promotion, and encouragement of others to register and vote". It also asks this Court's injunction to restrain the Defendants "from denying plaintiffs, and the members of their class the right to conduct peaceful public assemblies, or meetings to protest against state-enforced segregation, or any unlawful, unwarranted or arbitrary abuses of state power".

Upon the hearing on this matter no evidence whatever was presented showing any denial on the part of these Defendants, or anyone else for that matter, of the right of the Plaintiffs to participate in political activities, including the right to register and vote, and at no time during the hearing was any...