*1 Fоods, Canners, Western Inc. Mariani California Frozen Antioch, Clara, Calif. Santa Calif. Wilderspin Company, Company, Cattle Melton Provision Worth, Antonio, Fort Texas. Tex. San Peyton Packing Company, Packing Company, Monfort Paso, El Greeley, Texas. Colo. Packing Oregon, Packers, Sunset Co. of
Neuhoff Brothers Banks, Oregon Dallas, Tex. Packers, United Pacific Corporation, Inc. Orinda Olive Seattle, Washington Orinda, California Processors, Ventura Cogburn Sons, Earl & - Gilcrest, California. Colorado. Ventura* Potato, Inc., Western Idaho Stock, B. Davis Live William Nampa, Idaho Scottsdale, Arizona. Packing Company, Packing Co., Rosenthal Fred Dold & Sons Worth, Fort
Wichita, Texas. Kansas Topeo Associates, Inc., Packing Company, Estes Skokie, Illinois Worth, Fort Texas. Company, Standard Meat Fenner, E. D. Worth, Fort Texas.
Haslet, Tex. Packing Samuels E-Tex Company, Packing Company, Houston Mt. Pleasant, Texas. Houston, Texas Coahuilla, A., Industrial S. Coachuilla, Negras,
Piedras Mex. Company, Inc.
Iowa Pork
Perry, Iowa Libby,
Libby, McNeill & n Chicago, Illinois Foods, Frozen Manteca Manteca, Calif. al., Frederick Plaintiffs, et BROOKS Inc., Company, Marks Meat
Woodland, Calif. Beverly BRILEY, Mayor, etc., al., et Defendants. Packing Company, Meat Modern Norwalk, No. Civ. 4747. Calif. Berry Growers,
Naturipe United States District Court Jose, Cаlif. .San Tennessee, M. D. Nashville Division. n Ore-Ida Inc., Foods, n Ontario, Oregon. Oct. Foods, Frozen
Oxnard
Oxnard, Calif. Company, Milk
Pet Louis, Missouri.
St. Foods, Frozen Smith Oregon
Melton-Freewater, Packing Company, Union
Vernon, Calif. Co., Lemon Costal
Ventura Ventura, California *3 Tenn., Creswell, Jr., Nashville,
I. T. Madison, Percy Julian, Wis., Jr., L. How- Moore, Ga., Jr., Atlanta, ard Michael Standard, William Kunstler and Arthur City, Kinoy, Rob- New York Dennis J. Tassel, Newark, N. erts and Harriet Van Ga., J., Albany, King, B. and C. plaintiffs. Hunt, Boult, Hunt, F. Cum- Edwin Branstetter, mings Conners, & D. Cecil Neal, Collins, Cornelius, F. James Neal Harbison, Higgins, of Tra- & William J. Minick, Harbison, bue, & J. O. Sturdivant Bass, Bradbury Reed, Sr., Bass, and J. Nashville, Tenn., Berry Sims, & for de- fendants. Judge, PHILLIPS, Before Circuit Judges. GRAY,
MILLER and District MILLER, District WILLIAM E. Judge. requested action
In this we enjoin down and the enforce- strike laws ment of numerous alleged municipal ordinances vagueness and for in- and overbreadth applied validity and oth- similarly Giving rise to the situated. ers litigation Nashville riots were North 10, 1967, April 9 and occurred on and lawlessness an violence outbreak police and sub- intervention which led charges. sequent and criminal arrests opinion “disorders,” For we ances” or neither reasons stated in this reject aggravated police plaintiffs’ by improper emphatically caused nor must methods, force, en- the law nor use of excessive invitation thus shackle police brutality. responsibilities local au- nor so-called Con- forcement trariwise, unequivocally thorities. evidence con- demonstrates Nashville discussing purpose of and con- For the eruption fronted with of violence in issues, sidering pertinent laws way caused challenged may in this case be divided enjoy- no rational connection with categories: First, into certain state two rights ment of civil Amendment or First according which, and laws statutes posed freedoms—an outbreak which charges proof, actual arrests and grave peace good order threat plaintiffs in were made named community, the se- as to as well consisting action, 39- of T.C.A. Sec. curity welfare of its inhabitants. dangerous weapons), (carrying *4 T.C. approach conduct), It (disorderly is in this context that A. and we Sec. 39-1213 legal problems posed by case, recognized offense, the this and the in common law against background Tennessee, inciting (set the found to exist of forth to riot Appendix opinion); in of the authorities in A to and some relied this assemblies, peaceable plaintiffs, municipal of Second, the demonstrations, and other laws according which, de- other activities under ordinances grievence signed protest proof, charges a advo- or to the or threats no arrests or charges cause. made cate a of such arrests or against any plaintiff, named plaintiffs The named are Frederick in- shown to have been Negro Brooks, a the United citizen of consisting April riots, in of volved States, a at Uni- student Tennessee State (vagrancy), Metro T.C.A. 39-4701 Sec. versity Nashville, of in chairman and 66-928(14) (disorderly Ordinance con- Chapter Nonvio- Nashville the Student duct) ; 66-928(16) (assembling com- .to (SNCC); Coordinating lent Committee acts); 66-928(17) (assem- mit unlawful George Ware, Negro a of the Unit- citizen bling travelers); to disturb citizens or States, secretary field ed and SNCC (loitering); 66-928(47) 66-928(46) and carrying engaged purposes in in its out (loitering schools). (Set about in forth Negro Nashville; Stephens, a Ernest C. Appendix opinion.) B to this citizen, secretary and field en- of SNCC carrying gaged purposes action, in out its context, Considered in its Nashville; Jenkins, Lyn basically, a Ne- Adrienne right involves the of state and gro citizen, Uni- municipal a Fisk authorities, and student at law enforcement Graham, Nashville; versity a including L. police, Osear cope the local effec- Negro citizen, tively at Fisk Uni- a with a and student serious outbreak of violence Negro versity; Conner, citi- M. a Calvin lawlessness without interference long injunc- zen, student Tennessee State from arm of and a at a fedеral Negro Stokely Carmichael, University; explained a fully tion. As more later inon filing citizen, at the opinion, time of the course of this find to be we SNCC, complaint a national chairman support, devoid of factual and indeed even replaced fanciful, position after plaintiffs’ charge police- in which he was Rap complaint by filing H. one men and other officers and officials citizen, Negro Brown; Neal, Jr., Metropolitan Aaron a Nash- Government of ville, conspired Univer- at student Tennessee State combined and a in bad faith Negro citi- Woodruff, plaintiffs sity; deprive E. a James harass and to ’ priest whose zen, Episcopalian constitutionally protected them of their rights. and an Nashville; City parish equally pres- located in the It is from clear Rabinowitz, citizen Larry ent record that the North riots Caucasian Nashville City States, April employed plaintiffs would the United Negro cit- Nashville; Sealy, euphemistically Diane characterize as “disturb- Tuskegee vidually representative izen, Institute of other and a student at city. plaintiffs officers of said sue on Alabama. The named behalf of and on behalf themselves amended, plaintiffs’ complaint, consisting class оf all members of upon the constitutes a two-fold attack SNCC, staff of all students at Fisk Universities, Negroes municipal state laws and ordinances set Tennessee all State Appendices opin- forth in A B this and to Nashville, colleges the schools and theory complaint ion. first city Negro as similarly situated, said well as all residents of that the defendants caused arrests and alleging complaint prosecutions against the to be instituted that such classes are too numerous plaintiffs, or ar- have threatened such SNCC, bring before Court. Plaintiff prosecutions rests and the said under unincorporated association, ordinances, good laws not in faith for Nashville, alleging chapter local purpose enforcement, the pursuant but valid law purposes promote its aims and plan to a or scheme to harass help Negro secure to all citizens subject dep- and to them the rights guaranteed to them the Con- federally protected rivation of their States, stitution of the United rights, including speech, freedom as- purposes en- seeks to advance these sembly, association and related activities. gaging activities, peaceful in all forms of Secondly, support seek to speech, assembly, as free such by alleging their claim for relief petitioning for redress of the Government said statutes and ordinances are void grievances, sues in its own behalf. *5 vagueness overbreadth, consequent- and ly violating guarantees the fundamental jurisdiction the of the Court over assembly, speech, press, of the free and complaint invoked under 28 is U.S.C.A. right government petition the for re- 1331, 1343(3) 2201, 1332, (4), Secs. and grievances. respect dress of With 2202, 2281, 2284; and 42 U.S.C.A. 8, April 10, in North occurrences of 9 and 1985; 1971, 1981, Secs. and “The they allege Nashville, plaintiffs the that Voting Rights 1965,” Act of and the Con- engaged solely peaceful were activities States, par- stitution of the more United and that by of acts violence were caused ticularly Sixth, First, Fourth, Fifth, the inflammatory using the defendants in Eighth, Ninth, Thirteenth, Tenth, Four- plaintiff Stokely about the Car- remarks teenth and Fifteenth Amendments there- prior michael and others said occur- to. threats, making rences, in unwarranted The defendants named in com- the against him, by using improper police plaint, amended, Beverly Briley, as methods, illegal arrests, by making Mayor Metropolitan of and Nashville resorting seizures, by searches and and County, Tennessee, (a Davidson unit of unneсessary force, as the use of as well government to as charges hereinafter referred by placing unwarranted them, City Nashville); plaintiffs, Nashville or as the of or the some of violating ordinances. laws and Kemp, City various H. O. Chief of Police of the Nashville; Bobby Hill, a of the member alleged prosecution It of the the that Department City Police of the of Nash- plaintiffs ordi- under the said laws and ville, individually and in official ca- his intimidating destructive, nances will have pacity representative po- rights as class of “chilling” upon and effects federal alleged guaranteed Amendment, city and lice officers said which is First the bring prosecution to be too identical numerous to before the that such will have Court; every Brown, rights Neill member S. Director of Law effects City Nashville; represent. plaintiffs Thomas Shri- of the class that ver, Attorney Alleging irreparable injury the District for the incident General Tennessee; proceedings Tenth Judicial and said Circuit arrests and Jackson, R. ordinances, C. De- member the Police and re- laws partment City Nashville, declaratory quest judgment indi- that Fisk, are void both and Clark laws ordinances at Memorial Methodist said and face, Episcopal appliеd and issu- Church on their and St. Anselm’s as enjoining campus. injunction re- Church near the Fisk While ance straining proof police of the said there some the enforcement surveillance any proceedings sessions, some of these no laws ordinances thereunder. interference harassment. duly sessions were held as scheduled. undertaking Without to summarize 1966, plaintiff October Carmichael pleadings, the detail defensive de- speak campus had been invited to deny (a) answer that fendants their University of Fisk in Nashville. He was Ware, plaintiffs, than not, however, speaker for scheduled as a Neal, standing Stephens have University the reason officials of the action; deny (b) that the maintain the accepted did not consider had he action; deny (c) proper is a class action invitation. It is from the evidence clear any way acted in that the defendants anyone nor neither defendants faith the occur- bad in connection with acting any connection on their behalf April 9 and rences of engage- speaking with fact that this statute, invoking using law, cancelled or not scheduled. On ment was ordinance; (d) deny of said 8, 1967, plaintiff April 6, Car- vagueness or over- laws are void for Nashville, speeches michael did make ; (e) there is contend that breadth University, at Tennessee Fisk at State showing injury irreparable and that University. University, and at Vanderbilt ap- of abstention should doctrine speeches These made scheduled were plied Court, result that attempted in- without interference granting from the Court should refrain from the defendants. While terference entering injunctive a de- relief or from speeches appearances and of Car- these claratory judgment.1 press cover- michael received extensive and laws Since state statutes age, that his consti- record is clear general application chal were disrupted rights inor not tutional any way lenged being Federal violative certainly with, *6 interfered three-judge Constitution, court was con a the The last of scheduled the defendants. 2281, vened, pursuant 28 to U.S.C.A. Sec. completed speeches in Nashville was and heard and the action has been tried Im- appearance on the in an Carmichael by the Court on its merits.2 campus Program pact of Vander- on the University afternoon late proof bilt April the developed From the extensive at 8, Later, the samе eve- on leading 1967. hearing, controlling the the facts ning, present of the litigation the scene he at emerged to was the have without rioting rioting begun. The During after it serious conflict. the Easter vaca- campus of' began vicinity of the 1967, in the tion of Black “Conference of Stu- first, stated, University. it Fisk As Nashville, sponsored dents” was held in 1967; April 8, evening erupted Chapter on Nashville The SNCC. April 9th, sessions of om and ended conference held on were at continued appear George McCanless, three-judge 1. to The would Honorable F. court A Attorney complaint Tennessee, jurisdiction General of since the have respect party been to named allowed intervene as a de to three capacity, challenges fendant constitutional in his official to federal on applica responsive pleadings, grounds file laws of state-wide filed an an adopting allegations bad faith are swer answer of the other tion. constitu defendants in the action insofar as to raise substantial such sufficient Moody Flowers, constitutionality question. answer relates tional general 18 L.Ed. of the statutes of S.Ct. the State of U.S. Tennessee, and the common law offense 2d 643 inciting riot, chаllenged by of plaint. to the com April leading pickets. attempt to 10th. The events and the This rioting crowd, many were as follows: fruitful as the of whom were students of Fisk and Tennessee 8th, April At about 7:30 P.M. Universities, State continued to increase Negro operator University of the Inn in numbers. Present in the crowd at this University across the street from Fisk including agitators, time were known ex- police premises summoned to his because convicts, exhorting who were the crowd presence disorderly of the of a drunk and keep police area, rec- to out of and the Negro response soldier. to his call supports ord the conclusion that these two go white officers were agitators directed pickets were rather than the patrol the restaurant car. Prior the center of the crowd’s attention. University Inn, increasingly this call from the crowd became aroused policemen P.M., large were no prem- in or hostile. At 9.30 num- around the about making ises or rioting persons up in the area crowd where the bers later began. surged transporta- public At about operator 7:50 P.M. in front of a University containing bus, passengers, which Inn had another tion call requesting undertaking go through made рolice the area. be sent to his was restaurant at 1728 of the This resulted in some members Jefferson Street. police breaking When response arrived in the bus window to crowd out call, they rocking Negro first found that front the bus of the driver agitators fro, soldier operator whereupon had left but the and shouted, one of the whitey.” get eject establishment wished to another “This is a chance to Negro patron plain police- juncture, offensive to him. At clothes The rec- this ord shows pistol in order this was the air done without man fired his into force and in disperse crowd, a courteous and the bus then manner. Two to police congested different proceeded officers area. answered the out of the they second large call. When arrived and hostile the Ne- crowd was then gro ejected people. soldier had returned. He was to 500 numbered between 350 operator’s request dispute at the appears from the Uni- There to be versity smashing glass eight Inn. Within five min- evidence utes after the actual arrival of first was the officers in the bus window response they call, to this the second Prior while occurred. violence which present, persons, still police a number of had not interfered event the activities, Negro students, ap- most of peared way picketing whom were with the began directing picketing re- devoting the Univer- themselves to sity gradual- Inn. directing The crowd in the area. After area in the traffic ly increased, reappeared whereupon incident, some helmeted helmeted bus *7 police However, arrived in the area. Dr. Jefferson Street and at 17th Avenue Negro community Mitchell, Edwin a and traffic lead- increased the had when crowd large being er and County of policemen Director the Nashville-Davidson surrounded were police Commission, Human Relations helmeted After the numbers. large street, seeking compose who was in the area to a line across the formed situation, suggested the toward them persons that the moved helmeted numbers of police request menacing hostile be removed. com- and in a This was manner in a plied eight of mood, feet coming with within to a few minutes time. six within agitators ran There remained at time police the scene two At this three line. the up Negro po- policemen urging primarily uniformed concerned area and down the join directing posts with and to traffic. In an to their effort to leave licemen officers, upon difficulty, meeting spitting work out the agitators, the was a the using language, and University held at the Inn the abusive between and obscene get home,” operator go protesting students, “let’s shouting and at “honkies At agreed by honkies,” honkies.” which time it and “black those attend- the approximately barrage ing of meeting go to recess the 10:00 o’clock and to out- thrown attempt disperse were side in an missiles to crowd and other the rocks police Metropolitan program and others from the at the Government. crowd striking them, played Monday, a number was scheduled the missiles with be on persons, including April 10, 1967, played Dr. Mitchell. Edwin was not but be- prior to police made no arrests cause the North had ex- had Nashville area perienced days incident, taken no action two riot- this had violence and ing. agitators, library forma- had remained in For this the and reason the officials they throwing, judgment poor were tion. After the rock concluded that it would crowd, disperse play tape, the and did so ordered the decision in the Mayor Although plain- There isolated to a certain extent. were concurred. throwing рoint constituting in area all incidents of rock night, tiffs incident as this dismantling rock wall faith crowd evidence bad interference with throwing policemen. rights, at and the rocks their the Court finds that the deci- rioting spread point good out The origin from its sion was faith in the in and made places proper in North to other and in areas exercise of discretion vested 9th, officials, right April plain- and It continued on Nashville. local with no of the 10th, buildings April being thereby. before ended on violated It was also tiffs burned, policemen’s proper exercise, the area had been on the discretion motorcycles damaged, Mayor part defendant, with Briley, automobiles to un- per- by interceding prevent drivers with white attacked serious dertake to trouble injury property damage, April Episcopal “molo- sonal and Bish- on with hope were op. apparently cocktails” used and tov were others This was done in the secreted, and firearms were the use made that SNCC would barred from brought un- into area. Arrests were of defendant Father Woodruff’s church rioting police Mayor campus. dertaken after Fisk near the erupted grounds that seri- violence had were reasonablе believe progress. during remain- due Thereafter ous trouble occur in Nashville could April April presence der 8th and on 9th and its leaders. of SNCC 10th, made, various arrests were but evi finds no credible The Court plaintiffs the eleven named individual support allegations dence to only three them were arrested George complaint plaintiffs, charged violations Stephens, were assault Ware Ernest challenged by statutes ordinances by police jail. ed enroute Nor is complaint. eight in- None other brutality police any believable evidence plaintiffs dividual is or has been so ever occasion, or of case on other this charged. Two of the named con which either misconduct complaint, amended, causing precipitat tributed toward arrested, Rabinowitz, Woodruff and long rioting. ing the led to incident which rioting, night after upon record is ines The conclusion April 21, 1967, immediately re- but were Department capable that the Police leased order of a local General Ses- exercised, minor members with a few its Judge, charge sions no warrant and no extraordinary exceptions, restraint being placed against ever them. At in- good undertaking judgment сontrol during April tervals events of already As the tumultuous situation. pointed police, efforts to control completely out, the evidence crowds, fired in the Three shots air. *8 lacking plaintiffs’ com support campus students on the Fisk while were plaint activities of that the conduct or by stray bullets, struck but no there was police in under or other local authorities any firing any intentional student taking riot to deal and control with other in the crowds. charges including ing, and the arrests individual Saturday, April 8, plain- which were made On have, taped plaintiffs, calculated participated or were tiff in a Carmichael “chilling circumstances, ef program under the radio at a radio station owned enjbym'ent plaintiffs operated by Library in the on the and B fect” oard rights. during pendency The of their constitutional of this action. No affirmatively contrary plaintiff arrested, shown other named charged, was with serious of the occurrences or threatened nature with arrest aas deal, by police fact had to result which the of the riots under of the laws they speeches, picketing challenged by and that allowed and ordinances com- place plaint. and to con- demonstrations to take Exhibits Plaintiffs’ Collective long interruption so as tinue without they 29 and 31 set forth number of arrest a orderly, peaceful ar- charging that were warrants various violations erupt- only rests were after violence Appendix made laws included in both A and dangerous handling ed, and Appendix a exhibits, and that B. These filed for proper identification, a volatile situation the used were not offered ad- and resorted no measure restraint mitted as evidence in the case. But police brutality or the use of excessive examination of no discloses exhibits together charge against any force. The same facts with plaintiff named with any contrary part proof on the exceptions lack of the three indicated. plaintiffs that there was further show Plaintiff Neal his arrest testified that plaintiffs, plan to harass the scheme accompanied by was the arrest of six purpose invoke criminal laws for others, four whom are identified interfering their constitutional with Mickey LeRoy Booth, Douglas, Charles rights. point that to the facts Plaintiffs Wilson, All, and Arnett ac- Whitmire. police force the Nashville members of cording Neal, charged in- were with Michigan po- equipped Stаte were with citing to riot. Booth’s case was dis- helmets, policemen in- and that lice stantly Douglas missed, and was fined $25.00. large as soon numbers available proof charges There is no or threats began rioting as the evidence against any class member the so-called planned plaintiffs interference with the plaintiffs represent seek to other than of First Amendment the exercise persons, the four Neal and identified rights. justifiable. inference is No such charged with incitement to riot. merely efficient These facts demonstrate ques- We address ourselves first emergen- police preparation to meet may main- tion of whether the action cy. pointed out, tained as a action. As class plaintiff plaintiffs represent As riots the named seek to a result of the Negro charged Ware a themselves but all resi- was arrested and was are disorderly formal dents students of Nashville who warrant with conduct similarly 39-1213, violation situated. of T.C.A. Sec. with carrying dangerous weapon a in violation their contend brief inciting 39-4901, T.C.A. See. Negro every that the class consists of riot in violation of the common law of- might resident of Nashville who feel (Appendix A) plaintiff fense. necessity making his vоice heard Stephens formally was arrested equal quest for presence his felt in the charged disorderly with conduct in viola- rights. carry- 39-1213, tion of T.C.A. with Sec. ac maintain a class In order to ing dangerous weapon violation among require, tion the Federal Rules 39-4901, inciting T.C.A. Sec. a riot things, questions that in violation of the common law offense. law or fact common to. .class A) (Appendix plaintiff Neal ar- represent seek to formally charged inciting rested joinder class numerous be so riot in violation the common law of- impracticable. Fed. of all members is recognized (Appen- fense in Tennessee. Plaintiffs claim R.Civ.P. 23. A) dix finding proof com both warrants proceedings pre questions These criminal fact are still mon of law and pending specifically, the defendants contended since have volun- More sented. *9 tarily prosecuting questions from of law and refrained them common that
547 Negro un- Negro (all power court a statute to declare fact that the class plain- only where exists simi- constitutional and residents of Nashville students larly only show, that the situated) being subjected not to tiff is “able is has invalid, he brought that sus- prosecutions in bad is but statute danger immediately faith, prоsecutions tained or is unconsti- or to under injury re- ordinances, sustaining as the vague tutionally some direct statutes or * * Froth- prosecutions deprive enforcement class sult of its and that such 488, 447, ingham Mellon, 43 U.S. 262 free- v. their First Amendment members of (1923). 601, 597, L.Ed. 1078 67 doms. S.Ct. opinion is that the Court consti that the It is fundamental support does not this contention. evidence may tutionality or ordinance statute exception plaintiffs With Ware, of named rights challenged by one whose not be Neal, Stephens four addi- affected, adversely about to are not persons plaintiff tional named in Neal’s operation. affected, by adversely its be pend- testimony, there is no evidence Lo Labor Federation of Alabama State ing, threatened, prosecutions or imminent McAdory, 103, 325 No. v. cal Union etc. against any person any connection 1384, 450, L.Ed. 1725 65 89 U.S. S.Ct. 1967, April, with the occurrences Mellon, supra; Frothingham (1945); v. stated, North Nashville. As we have (7th Lauer, 633 287 F.2d United States prosecu- factual of bad faith contention 818, 1961), 82 368 U.S. Cir. cert. den. against Negro tions and stu- residents (1961). 34, A 24 S.Ct. 7 L.Ed.2d supported dents of Nashville is not challenge standing the con is without legal question the statutory vagueness as to record. The stitutionality he shows unless a statute and ovеrbreadth opera injured by its himself is he plain- common ease named this 249, Jackson, U.S. tion. Barrows v. Ware, Neal, Stephens tiffs 1031, L.Ed. 1586 S.Ct. persons the four additional identified in showing no instant ease testimony. Neal’s Jenkins, Brooks, that named Graham, Conner, It follows that the action is not Carmichael, Woodruff, appropriate class action. While the arrested, or are been Rabinowitz have vagueness question of and overbreadth prosecu- now threatened with arrest tion, common offense of incitement law any allegedly uncon- under of the plain to riot is common both named laws, the events as a stitutional result Stephens Neal, Ware, tiffs and to the April 9 and 1967. While Neal, persons four named cer other Sealy plaintiff Diane was arrested tainly presence of four additional events, im- she connection with such mediately persons does not class so constitute a evidence There is no released. joinder in this numerous them has ever been threat- that she is now or impracticable. suit would be Since prosecution ened under proof prereq fails thus to establish has case. Nor laws involved this uisites of Rule hold that a class we legal threatened been taken or action may action maintained in this Coordi- Nonviolent the Student case. nating here law Committee subjected to attack. apparent equally It is plaintiffs, than the three named all these named We conclude standing actually charged, are without standing to chal- are without it must maintain the action and that lenge statutes, ordinances, any of to them. is true be dismissed as This join in action. laws or to maintain they injury. cause have sustained They charged question We next consider the have not been with violat ing any enjoin they threatened whether the the en law. Nor are Court should prosecution under law with arrest or forcement three laws sought challenged plaintiffs Ware, Stephens this case. and Neal to be
548
standing
challenge.
plain
convened, grand jury
have
to
The
was
court was
primarily rely upon
tiffs cite and
Supreme
the
in the
summoned
Parish of Orleans
looking
Court’s
in Dombrowski
decision
hear evidence
to indictments
Pfister,
appellants.
ap-
380
U.S.
85 S.Ct.
individual
On
pellants’ application Judge
Early
appellant
Dom-
October
487-489,
551 Moreover, question as Mr. Black has here a constitutional Justice opin- recently should the state Dombrowski first be considered construed the ion, court. at 447. fed- Id. court in that case authorized injunctions threatened eral court Koota, F.Supp. Zwickler v. penal at- statute enforcement a state (E.D.N.Y.1966), plaintiff threat- was vagueness ground” tacked prosecution ened under a statute al- it was also “where overbreadth leged anony- prohibiting the distribution part plan that the statute political quantity. mous literature seizures, arrests, employ and threats ‘to properly court held that could not way prosecution’ in a under the statute equity power exercise federal discourage complainants that would alleged suggestion nowas that the asserting supporters from and their prosecution threatened would attempting- constitu- their vindicate plain- undertaken in bad faith or that the rights.” Johnson, 381 Cameron v. tional prosecution tiff’s defense to such 1755, 14 L. U.S. S.Ct. adequate would him not assure vindica- *13 dissenting). (1965) J., (Black, Ed.2d 715 rights. of an tion his constitutional In York, of also State See Duncombev. New challenged earlier had case statute F.Supp. (S.D.N.Y.1967), 103 where 267 been held as a whole unconstitutional adopted. explanation was Black’s Justice a lower York court. New three-judge Boll, finally,
Thеre are also several And 270 Zwicker v. conception F.Supp. plain- (W.D.Wis.1967), court in which a similar cases 131 ruling ap- staged has been of the Dombrowski plied. tiffs an anti-war demonstra- had LaBelle, F.Supp. University 251 of In Turner v. tion at the Wisconsin of (D.C.Conn.1966), a civil 443 members had under the been arrested Wisconsin rights organization Disorderly arrested court been Conduct statute. The providing penal- easily suscepti- a statute held statute was under that the “advocates, encourages, of ties for who a constitutional construction one ble incites, justifies, praises, every or solicits” that to there was reason believe injury property of or that the courts so limit to destruction would Wisconsin police. The court held: it. assaults showing irrep- summary,
[Tjhere
of
find
has been no
In
we
that the defend-
not
some ants
Nashville
have
arable harm. While
and the
attempted
testimony
time
inhibit
had been a cur-
at
to
that there
freedoms,
rights activity,
plaintiffs’
has
tailment of civil
First Amendment
grew
which
made
this has been that the arrests
not been shown that
violent,
constitutionally pro-
prosecution
of
of
out
not
caused
tected, activities,
injunction
pending
will
mat-
and that
that an
affect
way
showing
prosecutions
in no
no
оf
state court
have
ters. There has been
applications
plaintiffs’
membership, in
chilled
First Amendment
falloff in
membership,
freedoms.
In situations such as this
for
contributions.
always
Supreme
refused in-
seizure
Court has
Nor has there been
of vital
City
junctive
Douglas
documents,
of
relief.
In
v.
records
as
Dom-
157,
877,
Jeannette,
browski,
paralyze
87
63 S.Ct.
so
to
NECAP’s
319 U.S.
(1943),
short,
to
refused
operations.
L.Ed.
enjoin
the Court
there has been
1324
In
city
application
showing
ordinance
plaintiffs will
not ade-
no
religious
spite
by awaiting
protected
to
quately
solicitation
day
held
disposition
fact that on the same
the Court
of the matter.
state court’s
ap-
Wells,
jail,
plaintiff
as so
is in
the ordinance unconstitutional
plied
As in
any defense,
being
deprived
criminal conviction
review
merely
Commonwealth
Murdock v.
a determination
it.
wish
Domirow-sTci,”
Note,
by “denying
see
75
reach of
in TVeils
the court
1007,
(1966).
devoid of evidence
Yale
1033-37
on a
L.J.
relief
record
*
* *
shortened the
bad faith
552
Pennsylvania,
870,
105,
system
319
63
U.S.
S.Ct.
tional-democratic
is to endure.
(1943).
“[R]espect
L.Ed.
judicial process
87
1292
is a small
price
pay
civilizing
to
for the
hand
familiar
rule that
It
law,
abiding
give
which
can
alone
mean-
equity
ordinarily
courts
will not
re
ing to constitutional
freedom.” Walker
prosecutions.
strain criminal
The immi
City
Birmingham,
307,
v.
388
87
U.S.
good
prosecution,
nence
faith
even
1824,
(1967).
S.Ct.
we must A of interven- light eration in of and the Dombrowski cases, especially tion such in the wake three-judge directed court the on remand of the kind of which oc- lawlessnesss question to Sec. consider whether Nashville, only curred in could to lead 2283 In case barred an inunction. judicial censorship federal of local law prior of the federal institution enforcement, disruption to of the delicate action, ar- court had been authority division of between federal rested and and their motion indicted governments, ultimately and state and to quash to overruled. been disrespect for itself. the Taw judiciary, three-judge Upon remand, The as all other de- well court partments agencies government, of and held that is a limitation on Sec. 2283 inflexibly jurisdiction must remain equity dedicated to exercise of orderly rule law and the fair and ad- does federal and 1983 courts Sec. justice exception ministration if our constitu- not an anti-in- create provides: usage, Territory, 5. 28 U.S.C.A. Sec. State or 2283 or sub- may jects, subjected, any A court of the United States not citi- or causes to be injunction stay proceedings grant an zen of the United States except expressly jurisdiction a court State au- within the thereof deprivation Congress, rights, privileges, Act thorized or where necessary jurisdiction, in aid of its immunities secured Constitution protect judgments. party laws, or effectuate its in- liable to the shall be law, equity, jured at suit in an action provides: 6. 42 U.S.C.A. Sec. 1983 proper proceeding or other for redress. Every person who, color statute, ordinance, regulation, custom,
553
Johnson,
Furthermore,
clear that the
is
junction
v.
statute.
Cameron
prohibition
en
2283
under Sec.
F.Supp.
(S.D.Miss.1966).
262
873
joining
proceedings
court
cannot
earlier
case of
court
relied
judg
seeking
declaratory
avoided
City
Danville,
579
Baines v.
F.2d
337
Owens, 189 F.
ment. H. J.
v.
(4th
1964),
den.,
Heinz Co.
Mc-
Cir.
cert.
Chase v.
(9th
1951),
U.
1772,
cert. den. 342
Cain,
939,
2d 505
Cir.
14 L.
381
85 S.Ct.
U.S.
905,
L.Ed.
72 S.Ct.
96
677
(1965),
S.
Ed.2d 702
had reached the
comity
principles
fed
same
result.
Cases
Sixth
same
injunctive
require
re
eralism
that when
held
Seventh Circuits have also
appropriate,
relief
is not
neither
is
expressly
lief
Sec. 1983
authorizеd
is
judg
declaratory
appropriate
exception
under the
Wojcik
Palm-
v.
Sec.
er,
1963),
ment
(7th
statute.
318
cert.
F.2d 171
Cir.
L.
den. 375
11
U.S.
84 S.Ct.
government
system
dual
we
our
(1963);
Barry,
Ed.2d 263
233
Sexton v.
rejected
concept of
national
have
1956).
(6th
F.2d 220
Cir.
While two
Instead,
police force.
commit-
we have
contrary
federal
have
courts
reached
municipal
ted to state and
authorities
result,
significantly
in the
both courts
primary responsibility
police protec-
equitable
exercise of
refused
discretion
tion
maintenance of law
grant
injunction.
Cooper
Lacking
responsibility,
order.
such
Cir.1950);
Hutchinson,
(3d
184 F.2d
authority
in-
federal
should be allowed
Publishing
Tribune
Thom-
Review
v.Co.
through
itself
the Federal Courts
trude
as,
6(W.D.Pa.1957).
F.Supp.
ac-
into the law enforcement duties
only
when the neces-
tivities of
states
already
pointed
As has
out
been
sity
un-
clear and
for such intrusion is
facts, proceedings
in the statement
importance
federal
mistakable.
against plaintiffs Ware, Stephens
judicial
in this
and caution
restraint
pend
Neal have been instituted and are
emphasized
activity
of state
area
ing in the Tennessee state
for the
courts
today’s
rioting,
climate of
lawlessness
violation of three Tennessee laws. While
pattern
of which
national
violence —a
way
express authority
there is no
one
April
riots of last
Nashville
other,
opinion
the Court
*15
part.
the arrest and the issuance of a war
by
record, our
magistrate,
judicial
intervention
rant
a
As we view the
of
required
protect
ficer,
formally charging
to
not
in
case
this
rights
any person.
violations,
“pro
with
the constitutional
constitute
impede
disrupt
ceedings”
meaning
to
It could
serve
within
Sec.
coping
situa-
in
2283.
local authorities
involving open
defiance of law
tions
weight
authority
and the
threatening
tranquility
peace
approach require
better
reasoned
a deci
community.
enjoin
prohibits
sion that Sec. 2283
relief re-
forth the
For the reasons set
ing
proceedings
of these state
and that
amended,
complaint,
quested
as
will
in the
“expressly
Sec. 1983 is not an
authorized”
be
plaintiffs’ action will
denied
be
exception
To
2283.
hold otherwise
Sec.
opinion
constitute
will
dismissed. This
exception
be
would
to create a vast
Findings
Fact
Conclu-
the Court’s
Sec. 2283
do
and would
violence
pursuant
Fed.R.Civ.P.
Law
sions of
principles
comity
and federalism
day
Judgment
been entered
has this
Throughout
which
his
underlie it.
our
opinion.
in
this
accordance with
tory
predecessors
have
statute and its
played
important
role in our federal
Judge,
PHILLIPS, Circuit
HARRY
system
curtailing
in
friction
“needless
foregoing opinion.
in the
concurs
Okla
between state and federal courts.”
Judge,
Jr.,
GRAY,
Packing
District
&
FRANK
homa
Gas
Co. v. Oklahoma
215,
concurring opinion
separate
Co.,
4,
which
9,
Electric
files a
309 U.S.
60 S.Ct.
218,
is attached hereto.
APPENDIX accrue virtue his ment.” following are under plain- laws those Inciting is no statu- Riot—There or which one more of named tory inciting charge riot or a riot in charged tiffs have been arrested and as State, Kasper Tennessee. 206 Tenn. April 8, a result events of (1959), did, how- 326 S.W.2d 1967: recognize ever, it to be com- hold (1966 Cum. T.C.A. See. 39-1213 mon law offense Tennessee. Supp.) “Disorderly conduct declared a APPENDIX “B” Definition—Penalty. It misdemeanor — following shall be a laws those under any person misdemeanor for engage disorderly has conduct, which none of the named charged is defined a result of arrested and been rude, use boister- ous, offensive, April 8, 1967: 9 and the events of blasphemous obscene or language any public place; or to “Vagrancy a T.C.A. 39-4701 Sec. make or to or countenance assist shall a misdemean- misdemeanor—It mаking any improper noise, disturb- apparent person or for a ance, peace, diversion, breach of the or neglect ap- means of subsistence to or disorderly to conduct oneself in a calling; ply some or himself to honest manner, any place annoyance loitering any person to be found persons. Any person violating other gambling houses, of ill houses or about provisions shall, of this section country fame, strolling through the or therefor, conviction not be fined support.” any means of without visible ($2.00) less than two dollars nor more Metropolitan (Aug. Bill No. 66-928 fifty than ($50.00); dollars 16, 1966) ORDINANCES: discretion of the court confined in Disorderly Section 14. conduct county jail or workhouse thirty (30) days.” more than Any person peace who disturbs of others violent or offensive T.C.A. Sec. “Carrying 39-4901 dan- conduct, carriage, or or or un- loud gerous weapons Penalty—Any person — noises, by profane usual or or obscene carry who shall manner what- language, or offensive or go armed, any ever with the intent who shall commit act or diversion razor, dirk, bowie knife or knife causing tending or to be a breach of the form, shape size, cane, of like sword peace, any person guil- who shall be sling pick, ice shot, blackjack, brass- ty lewd, immoral or con- indecent knucks, Spanish stilletto, or a foun- duct, any person who shall use pen pistol gun, tain or like instru- filthy language public obscene or in a containing firing capable ment pin *16 place, any person or who shall commit tending shooting gas pistol cartridg- of tear or any act or diversion to or cal- es, any pistol any or or revolver of kind any culated debauch the morals of whatever, except army navy pis- or person guilty shall be deemed dis- tol openly which shall be in carried orderly conduct. hand, any dangerous weapon, or other guilty shall be Assembling a misdemeanor. to commit Section 16. act. unlawful Any person guilty of such offenses any (2) subject presentment It shall be two shall be in- unlawful for or dictment, persons together or more and on be to assemble conviction shall fifty ($50.00), Metropolitan im- in the area of the fined Gov- dollars county prisoned jail, imprison- ernment with an intent to do an unlaw- in the mutually act; being assembled, or, in ful ment the discretion court; agree, concert, in provided, or to do un- defendant shall act give good security force for act with or violence and sufficient lawful Metrópoli- any against property cost, jail all of the fine and fees prop- place public Government, person or in such manner or the nature tan erty peace another, as to: or others; or make the terror of 1. Interfere free and un- therefor; or, any preparation move or way public obstructed use of such or meeting being or as- present such at place public by any nature other prevent sembly, endeavor to fail to person persons; or, or perpetration of of or the commission profane, 2. To or lewd wanton such unlawful act. speech public in or behavior in such Assembling way place. to disturb or 17. Section It un- or shall be citizens travelers. Loitering acts 47. and other Section persons to col- two or more lawful for in or about schools—Unlawful unlawful cr for in bodies crowds lect any person It shall be unlawful purpose, any purposes, or for loiter, in, idle, wander, stroll, play or annoyance of citizens or disturbance about, any public, private, or or or travelers. seminary parochial college, school, or Vagrancy. 45. grounds, Section buildings, or either on foot having any vehicle, or in оr on without any person It shall be unlawful or some lawful business therein there- or to or condition to have the status about, in connectionwith such school or vagrant Metro- the area thereof; any employees or for or the following politan Government. person to: vagrants: persons deemed shall be pre- disturb, Annoy, otherwise 1. or Any having no lawful 1. orderly of classes vent the conduct employment means of school; any or such activities n solely support realized means lawful Annoy, assault, disturb, or mo- 2. sources; or, occupations or from lawful any employee any or lest student idly any person lives without who seminary college, school, while such or support. visible means any any building or on such school grounds; loitering school or Any person or 2. found street, strolling about, upon any in, or lewd, wan- himself 3. Conduct pub- lane, alley, avenue, any or speech or ton, manner in or lascivious way public place, or at lic or school such or about behavior assembly, public gathering or in or or grounds; building or or school any store, shop, or or business around the im- a vehicle 4. Park or move establishment, or on commercial of, grounds vicinity or on the mediate private place property law- or without college seminary school, or such conducting himself ful business lewd, annoying purpose or molest- for the ing lascivious manner wanton or thereof; employees students speech or behavior. induce, entice, or in- in an effort to [******] streets, Any person alleys, or other who wanders public about ways vite moral students into such purposes. vehicles for im- himself. not out late or unusual It shall be unlawful if Section persons places, any giving -Jr visible or lawful 46. to who is found satisfactory Loitering prohibited *17 hours in the (cid:127)X* public business if night with- any person account abroad way [44] at concerned, Tennessee’s action in lief Chief (concurring): FRANK I concur in the conclusions by should Judge Phillips, Judge should be I arrive at disorderly GRAY, Miller’s denied dismissed. Jr., opinion, concurred conduct District conclusion injunctive set forth Insofar as plaintiffs’ statute Judge re- in is 556 protect plaintiffs by from viola- injunction these a dif- is warranted rights. Eq- by my tion of their constitutional traveled from that ferent road relief; uity injunctive require does not
brethren. here, equity indeed, on the record made part, statute, pertinent This forbids it. follows: “It shall be a misdemeanor engage disorderly conduct, rude, which is defined as the use of
boisterous, offensive, obscene blas- phemous language any public place;
or to make or to countenance or assist making any improper noise,
in ance, disturb- CAMPBELL, Larry Petitioner, peace, diversion, breach of the v. disorderly or to conduct oneself in a Ramsey CLARK, Attorney General of manner, any place annoyance in persons.” Norton, States United and John J. of other Warden, Respondents. No. 3-67 Civ. 222. 39-1213, Codified as T.C.A. this is a comparatively new addition the crim- United States District Court provisions law, inal of Tennessee Minnesota, D. by Assembly been enacted the General Fourth Division. yet 1961. It has not been construed Oct. Supreme Court Tennessee. my opinion, vague
In the statute is so overbroad, lacking spe so cificity sought pro of the conduct to be scribed, as to be its unconstitutional on I saving pro
face. do not find it possible
visions which would make inter pretations circumscribing reach its with constitutionality. in the bounds of Cf. Chaplinsky Hampshire, v. State of New
315
U.S.
62 S.Ct.
should be denied Ware and Stephens, shown charged
record to have been with viola- statute,
tion of this I do not believe necessary to decide that 28 U.S.C. 2283 § prohibits injunction. the issuance of an
The evidence adduced herein fails to great danger show of ir- immediate
reparable harm to these injunction;
absence of an it fails show absolutely necessary
that such relief is
protect rights. their constitutional
courts Tennessee as bound provisions Constitution court,
United States as this and there *18 they
is no reason to assume that will