holding that doctrine of law of the case encompasses not only matters decided explicitly in earlier proceedings, but also matters decided by necessary implication
How later courts described this case
- holding that doctrine of law of the case encompasses not only matters decided explicitly in earlier proceedings, but also matters decided by necessary implication
- reversing a district court's judgment of acquittal of conspiracy to violate § 245(b)(2)(B) and holding, as one of three alternative grounds for its decision, that streets were facilities provided by the City of Decatur
- explaining that we can address addi- tional alleged errors to provide guidance to the district court in fur- ther proceedings
- overruling lower court’s finding that witness had not waived privilege partly because witness did not have attorney present at deposition
Written by the judges who cited it.
The opinion
DUMBAULD, Senior District Judge,
concurring:
I concur fully in the thorough majority opinion which, inter alia, sustains convic *697 tion of defendant Creekmore for violation of 18 U.S.C. 245(b)(2)(B). 1
The indictment in the case at bar charges conspiracy “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, which conspiracy resulted in bodily injury to police officers and deputy sheriffs.”
A hasty and superficial comparison of this charge with the language of the statute 2 might lead one to suppose that the draftsman of the indictment failed to perform his task in an adequate and workmanlike manner. 3
The above-quoted language from the indictment might be interpreted as merely charging interference with participation in a parade “provided” or “administered” by the municipality of Decatur. But it might be difficult to demonstrate that the “parade” involved in the case was “provided” or “administered” by the municipality. And even though a well-drawn indictment could have been laid under the statute invoked, a defendant can not be convicted of an offense different from that which is charged in the indictment under which he is being tried. Stirone v. U.S., 361 U.S. 212, 217 , 80 S.Ct. 270, 273 , 4 L.Ed.2d 252 (1960).
However, the above quoted language from the indictment in the case at bar is susceptible of a broader and more inclusive interpretation. Upon examination of the legislative history underlying 18 U.S.C. 245(b)(2)(B), it becomes plain that the language in question should, by necessary implication, be interpreted as if it read:
“a public parade, which parade necessarily involved the utilization of streets and the enjoyment of police protection which were provided and administered by the municipality of Decatur.”
As is fully elaborated in the majority opinion, the sponsors of the parade consulted with the Decatur authorities regarding the route to be followed and the protection to be provided. Indeed, without such involvement it is highly unlikely that the parade could have taken place at all in view of the armed violence anticipated on the part of defendants.
The legislative history clearly demonstrates that violent, racially motivated interference with use of the streets in connection with legally protected First Amendment rights to constitutional freedom of speech is punishable under the statutory provision involved in the case at bar. For example, during the course of debate, Senator Ervin (a prominent opponent of the legislation) recognized that “the sidewalks and streets are facilities of the local government.” 4 Senator Eastland (another vigorous opponent of the bill) likewise stated: “Certainly, the public streets and sidewalks are facilities provided by a State or subdivision. So are public parks and highways.” 5 Police protection is also a service provided by the State or subdivision thereof.
Accordingly, since it is obviously impossible for a “parade” under the circumstances existing in the case at bar to take place without use of the streets and police protection, an allegation of violent and racially motivated interference with such a “parade” clearly constitutes an allegation that the defendants interfered with the enjoyment of a service or facility “provided or administered” by a State or subdivision *698 thereof, and therefore constitutes a valid charge of violation of 18 U.S.C. 245(b)(2)(B). Creekmore’s conviction must be sustained, and the judgment of the District Court reversed.
. This provision prohibits interference, by force or threat of force, because of race, with any person who is "participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof.”
. See note 1, supra.
. As in U.S. v. Price, 383 U.S. 787, 791 , 86 S.Ct. 1152, 1155 , 16 L.Ed.2d 267 (1966), “the question before us is whether the attempt of the draftsman for the Grand Jury ... has been successful: whether the indictments charge offenses against the various defendants which may be prosecuted under the designated federal statutes."
. Congressional Record, Vol. 114, p. 333 (January 18, 1968).
. Ibid., p. 1029 (January 25, 1968).