# Appendix — Cameron v. Johnson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0154%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1968 - **Citation:** 390 U.S. 611 ## Text . 7 mi SRARY - SUPREME COURT «: Sort a ‘FILED APPENDIX: > 7) NOV 16 1967 > ae . pear cs eee: | [_iOHW'F. BAM, C SUPREME COURT OF THE UNITED STATES* ~ OcroRER TreRM, 1967 No. 699 JOHN EARL CAMERON, ET AL., APPELLANTS, Vs. PAUL JOHNSON, ETC., ET AL. APPEAL \FROM THE UN ITED STATES: DISTRICT ‘COURT FOR THE ” SOUTHERN DISTRICT: OF MISSISSIPPI - FILED MAY 15, 1967 oe RECON NOTED OCTOBER 9, ed tc A RN REE ERE ROE IEEE © MRR RIGS FEM REI IGM IIE BOSE FAP ETL LF NS Se BE Te Be INDEX ieee Relevant Docket Entries........ ined be Perr rrr te ene Amended Complaint............. ‘caekéushederténeearcues Supplemental Complaint.......:........:. tiara ecancaeis : ‘Answer of Defendants........... Rear ee ‘Mhaaakaees al Separate Answer of Paul B. Johnson, Jr...........:...... Separate Answer of James Finch..........0.....0eeceee0: Opinion of United States District Court 7/14/64. PT Ee Dissenting Opinion of Judge Rives 7/14/64............. ae ‘Finding of Facts and Conclusions of:Law 7/14/64......... Notice of Appeal to the Supreme Court of the United States ' Judge Cox, Specially Concurring 12/24/66............... Finding of Facts and Conclysions of Law 12/24/66....:... Dissenting Opinion of Judge Rives 12/24/66............5. Order of the United States District Court 12/24/66........ Notice of Appeal to the Supreme Court of the ae States . Hearing of October MB, WWGB 000-0 cvcwesecocccccccccsecs (1) i ae RELEVANT Dooxet Entas Date | _Filitigs—Proceedings | 4-13-64 Complaint in action for injunction, with seven’ | ~ copies, filed. Page 1. : as 4-13-64 - Motion for convening of three-judge District . Court with seven copies, filed. Page 10, . e*-, @ * im * « 4-22-64 Supplemental Complaint: that James K. Dukes be substituted for Joe R. King as County Attor- . ney, Forrest County, Miss., filed. Page 11 4-23-64 “Designation of .a three-judge court Naming: ° Judge Richard T. Rives, Montgomery, Alabama; Judge W. Harold Cox, Jackson, Mississippi; Judge 8. C, Mize, Gulfport, Mississippi, filed. _ M.B. 1964, Page 13 oe * * * a ’ . 7 4-23-64 Order’ signed by Judge Mize for Interlocutory ee * Injunction hearing at Meridian, Miss. on 4-29-64, ‘filed. O.B. 1964, Page 72 | Dia [2] oer | a S- 7-64 Motion for leave to amend complaint pursuant © to Rule 15, Federal Rules of Civil ‘Procedure, : filed, original only Rie as S- 7-64—Amended Complaint: amended to read Bup Gray, _ individually and as Sheriff of Forrest County, Miss., filed, original only. Page 20 . _* 7 “he e es! Rhee 5-13-64 Separate answer of-Paul B. Jolinson, J r., indi- vidually and as Governor of the State of Missis- _ '. sippi with copy of motion to quash filedin County . ‘ _ Court, Forrest:County, Miss., with certificate of. mailing; filed. Page 28 2 60 Date 5-13-64 6— 1-64. Ptinie~Permaiinns Separate answer of James Finch, individually and. as District -Attorney of Forrest County, - Miss., with certificate of mailing, filed. Page 35 % : x * .* - * * * ‘a e a Secortd Supplemental Petition and. Petition for; | ’ Stay of State Court Proceedings with copies of charges, copy of Motion to Quash, copy of aff- dayit' of Bruce C. Waltzer from County Court, Forrest County, Miss., together with certificate stating that Second Supplerhental Petition had been mailed to James K. Dukes, Will Wells; James Finch, W: G. ‘‘Bud’’ Gray with ap Order to the Court for an injunction, filed. *- dat Reais * . * i * Order that Plaintiffs are granted leave to file - the amended Complaint proffered to the Court; * that the Defendants are granted 10 days from the date hereof to plead to’ said amended Com- plaint, filed, O.B. 1964, Page 95 . ~ F ~~ P ‘ ° * * *. te oF * 6 : Amended coniicilaiit with three copies together with certificate of mailing and Exhibit a ef filed. v—— 62 Answor of Defendants: Paul B. Johnson, James K. Dukes, James Finch, Bud Gray, with three copies, filed. Page 71 : ies tes opinion in: 12 pages. dated 7-11-64 by ' Judge S. C. Mize, Judge Harold Cox concurring, -- . Judge Richard T. Rives dissenting : ‘*A finding -of facts and conclusions of law-is prepared sepa- ——— sermperseaeeel : myer AGED Ns I OBO RD SEP SOS RAPT IN NEI -“and Honorable William Harold Cox, United . States District Judge, filed. O.B. 1965, Page 212 —M. B. 1966, Page 145 a Filings—Proceedings a ‘ Plaintiffs moves the Court pursuant to the judg- ment of the Supreme Court of the United States entered 6-7-65, for a hearing in accordance with _ said judgment; for permanent relief prayed for 9-23-66 | ‘in complaint and amended complaint, filed | Court Reporter’s transcript of proceedings taken - at Biloxi, Miss., on 10-15-65, filed. See separate volume . ; a os Stipulation that a drawing of certain areas ad- jacent to county courthouse may be considered as introduced in evidence, filed . - Stipulation that a drawing of certain. areas ad- jacent to county courthouse does not show an entrance to the county court room, with copy of drawing attached, filed * e 7 eo ~ 7. Restraining Order: Order that District Attorney and County Attorney be ordered and directed to desist from prosecution of approximately 40 criminal cases in state court and to further pass disposition of cases until further orders of this _ Court; the U. S. Marshal shall serve an attested | copy on-each attorney, filed. O.B. 1966, Pages 267-268 3 Motion for :a preliminary injunction or order staying state proceedings in County Court, For- rest County, Mississippi, filed * * * * * . Opinion of Circuit Judge Rives, filed. Page 107 Opinion of Cireuit J udge Coleman, filed. Page 138 ‘ ! ~ SRO St cee ro rgoee SOREN PETS ie tit 1-26-67 Filings—Proceedings Opinion of Chief Judge Cox, filed. Page 152 Findings of Fact and Conclusions of Law; order to enter, filed. Page 156 | Judgment: complaint dismissed with projudice, plaintiffs assessed with costs, extant restraining - orders are abated and dissolved within 30 days after 12-23-66 to enable such parties to apply for further relief, filed. O.B. 1966, Pages: 363- 364. - oo 161 + * | . * * Notice of Appeal to the Supreme Court of the — United States: Plaintiffs appeal from the judg- ment of this Court rendered December 23, 1966, entered December 24, 1966, with five copies, filed. Page 163 Motion for Continued Stay. * plaintiffs. with Order that the extant restraining orders of this court, which have ‘operated as a stay of criminal proceedings now: pending in the State Courts of Miss., against plaintiffs in this case, be and the same are hereby extended and kept in effect until final disposition of this cause by the U. S. 1-27-67 Supreme Court, signed by Circuit Judge Jas. P. Coleman, with cértificate of ‘service, filed. .0.B. 1967, Page 22-23. Page 166 Copies of Notice of Appeal and above Motion — for continued stay mailed three judges. - . A True Copy, I Hereby Certify. Robert C. Thomas, Clerk: By: 8. Carter, sated Clerk. Dated: 1-30-67. . — = ™ - necee Nene ae ae Seka atl ON Ra ithe ee ini ias nt tina Date : a . \ [9] | Ancunpep Compares To the. Siistadiin, the Judges of the United States. District Court, for the Southern District of Mississippi, Hatties- | burg Division: Parties % Siniebed Joun Eart, Cameron and Mrs. Vicrorta. Jackson Gray are residents of the-State of Mississippi and citizens of the United States. They are members of the Negro race and bring this action for themselves and. as representatives of all other Negro citizens of the City _ of Hattiesburg, Mississippi, and the State of Mississippi ‘similarly situated, pursuant’ to Rule 23 of the Federal Rules of: Civil Procedure. They bring this action also as representatives of those citizens of the United States, Negro and white, similarly situated who are attempting by constitutional means to-enforce the constitutional right of Negro citizens of the State of ae to eer and vote in that state. [10] 2..Defendant Pav. Jonnson is val individually and as the Governor of the State of Mississippi. He is a resident of the’ state of Mississippi. s 8 : | 3. Defendant. James K. Duxss is sued individually and as County Attorney of Forrest County, Mississippi. He is a resident of the State of Mississippi. 4. Defendant James Fincu is sued individually and as District Attorney of Forrest County, Mississippi. He is a resident of the State of Mississippi. 5. Defendant Bup Gray is. sued individually ‘and as Sheriff of Forrest County, Mississippi. He is a resident of the State of commis o es ie } J urisdiction 6. The . jurisdiction of the Court over the complaint arises under Title 28 USCA 1331 (a), 1334 3, 4, 2201, 2202, 2281: Title 42 USCA, 1971, 1981, 1983, 1985, ‘and under. the Constitution of the United States and particularly the First, Fifth, Thirteenth, Fourteenth and Fifteenth amend-— . ments thereto. - 9%, The amount in eontroverey, exclusive of interest and costs — the sum of sates 000.00. — SQ NTT Cw Te OE ORE) & ST = ¢ Cause of. Action 8. The plaintiffs and the classes of dition, Haire and white : they represent are attempting through peaceful, non-violent and constitutional means to achieve the elimi- nation of all forms of racial segregation in: the State of Mississippi. This is an objective guaranteed by the — Thirteenth and Fourteenth Amendments to the ane ‘ of. the United States. The plaintiffs and the classes of citizens they saniaak are attempting to assist and encourage Negro citizens of the State of Mississippi to exercise their right to register and vote in,State and Federal elections in that State. This is an objective [11] guaranteed by the Fifteenth ‘Amendment to the Constitution of the United States. 9. The defendants under color of the laws of the State of Mississippi and in particular under ‘the color of a law © : ‘of the State of Mississippi entitled House Bill 546, 1964 — Session Mississippi. Legislature, have entered into a plan or conspiracy with other persons to the plaintiffs presently . unknown to. subject or cause them and the classes _they _ represent to be subjected to the deprivation of rights, privileges ‘and immunities secured to them by the Con- _ stitution and laws of the United States as citizens of the United States, | 10. Honse Bill 546, 1964 Session Misslesippi Legislature was designed and enacted: for the:sole purpose of deterring, impeding and intimidating Negro citizens of the State of Mississippi and their white supporters from exercisirig their federal constitutional rights of freedom of speech, assembly, and the Tight to petition for redress of briev- ances all protected by the Constitution and Laws of the United States, in their efforts to obtain the equality guaranteéd by the Fourteenth Amendment and the right _ to vote guaranteed by the Fifteenth Amendment. - - 11. House Bill 546, 1964 Session Mississippi Legislature is void and illegal on its face and as applied to the plaintiffs . herein and the classes they represent, in that the stetute violates the Constitution of the United Staes and in par- icular the ist, 5th, 13th, 14th and 15th Amendments thereto. This statute violates on its face and as here applied the fundamental guarantees of free speech, press, 9 assembly and the right to petition’ the Government for a redress of grievances. It violates on its face and as here applied the guarantee of due process of law in that it is vague and indefinite and fails to meet the requirements of certainty in criminal statutes. It violates:the prohibition [12] against discrimination in the right to vote by reason of race and color in that it is designed and so ‘operates as to impede and deter the Negro citizens of Mississippi from attempting to exercise their right to : register and vote in elections. A copy of the Statute is affixed hereto as Exhibit ‘‘A’’ and made a part hereof. 12. Pursuant to the aforesaid conspiracy and plan the defendants and others acting in concert with them have — threatened and continue to threaten to enforce this uncon- stitutional, void‘and illegal state statute against the plain- tiffs and the classes they represent for the avowed purpose of intimidating them from exercising rights guaranteed - to them under the Laws of the United States in particular Title 42 USC 1971, 1983, 1985 as well as. the Constitution of the United States. Sie ~~ 13. In further } pursuance of thie conspiracy and plan ~ the defendants and others acting in, concert .with them have attempted and continue to attempt to prosecute the’ ' plaintiffs and the classes they represent under this void and illegal-state law for engaging ‘in the peaceful consti- tutional exercise of the rights of free speech, assembly and the petition for redress of grievances as part of their efforts in the current Voter’ Registration ‘Campaign in Forrest County, Mississippi. 14, Furthermore, on April 9, 1964, while cllwigea 1 in the peaceful exercise of constitutional protected rights of free speech, assembly and the right to petition, plaintiff Cameron and other members of the class he represents. _Wwere threatened with arrest for violation of said void and C illegal State Statute, and on April 10, 1964, were arrested * by agents of the. defendants for alleged violation of the ~ statute. 15. Since April 10, 1964, up to ‘and inohiding the present, at least 48 persons including the plaintiff Cameron, all members [13] of the classes here represented have been arrested by the defendants and their agents under the provisions: of this illegal and void statute. 10. 16. Since April 10, 1964, there. are now ‘pending ‘i in the ‘County Court for Forrest County, Mississippi, at least 48 — — prosecutions for alleged violations of this illegal and void statute. The prosecutions, all against members of. the. classes here represented,.are based solely upon the peace- ful exercise of -rights guaranteed under the First and . Fourtenth Amendments of the Constitution of the United States. ‘ts ? 17. Plaintiff Gray and any other members of ‘the classés here represented have been and continue: to be. . : §. threatened with arrest under the provisions of this void and illegal statute by the defendants and their agents. These threatened arrests are solely for the purppse of intimidating and deterring the plaintiffs and the classes _ they represent from exercising rights guaranteed to them under Title 42 USC 1971 and the Fifteenth Amendment as well as rights guaranteed under the First and Fourteenth Amendments. 18. Unless this Court. restrains: the operation and. en- forcement of this void, illegal and unconstitutional state statute, the plaintiffs and the classes they represent will suffer and continue to suffer immediate and irreparable injury. The dein purpose, intention and effect of enforcing and threatening to enforce this state statute is to deter, intimi- date, hinder and prevent the plaintiffs and the: class of Negro ciizens of the City of Hattiesburg and the State of Mississippi, together with their white supporters, from | : exercising their fundamental constitutional rights guar- anteed under the First and: Fourteenth Amendments in _ their efforts to enforce the freedom and equality for the - Negro guaranteed by the Thirteenth and Fourteenth Amendments and the right to vote guaranteed by the [14] Fifteenth. Amendment. Accordingly unless this Court forthwith restrains the | operation and enforcement of this void, illegal and uncon- stitutional state statute, the plaintiffs and the classes ‘ they represent will continue to suffer the most serious, immediate and irreparable injury in that they will con- tinue to be deterred, intimidated, hindered and prevented from exercising elementary and fundamental Federal con- stitutional rights. * 19. Plaintiffs have no ical remedy at law. SAFE TN Ge OP RAPT GL AE SIRE CUM EERSTE ST ed eS i made. ne Plaintiffs pr pray for the following relief: 1. That ‘pursuant to Title 28 USC 2281 and 2284 a 20. ae previous 5 applicatign for this relief has been three-judge Federal District Court’ be immediately con- — vened to hear and determine this matter ; saith 2.:That a permanent injunction issue | (a) restraining the \ defendants, their agents, attorneys . and alf others acting in concert with them from the enforce- ment, operation or execution of House Bill 546, 1964 Session. — Mississippi Legislature in any manner whatsoever and (bh) restraining the defendants, their agents, attor- ' neys and all others acting in concert with them front impeding, intimidating, hindering ‘and preventing the plaintiffs or members of the classes they represent from exercising rights, privileges and immunities guaranteed -_ to them by the Constitution and Laws of the United States. ' 3. That a Declaratory Judgment issue declaring that ' House Bill 546, 1964 Session. Mississippi Legislature is null and void and of no effect as violative of the Constitu- tion of the United States. 4, That pending the hearing and determination of these [15] prayers for permanent relief an interlocutory i injunc- tion issue restraining the defendants, their agents, attor- neys and all others acting in concert. with them from :(a) enforcing in any manner the provisions of House Bill 546, 1964 Session, Mississippi Legislature. (b) from arresting the plaintiffs or members-of the classes they represent for alleged Violations of said statute, (c) from instituting, undertaking, or contipuing any criminal proceedings what- _. goever pursuant to said statute against the plaintiffs and the members of the classes they represent, either in the County Court for Forrest County, Mississippi or in any State Court in Mississippi. 5. That’ pending the. determination of the ‘motions for interlocutory relief a temporary restraining order issue, restraining. the’ defendants, their agents, attorneys, and all others acting in concert with them in the manner as prayed for in paragraph 4 of this prayer for relief. Plaintiffs respectfully pray that - above relief be granted. 12 [16] te ~. Exuzerr “A”? , i House Bill 546, 1964 Session Mississippi Legislature “Be it enacted ‘by the Legislature of the State of Miss-° issippi: : Section I: It shall be unlawful for any person, ‘singly or in concert with others to engage in picketing or dem- onstrations in such’a manner as to obstruct or interfere with free ingress or egress to and: from any public prem- -ises, State property, County or municipal court houses, city halls, office ‘buildings, jails or other public: buildings _or property,qwned by the State of Mississippi or any county or ‘munisipal government located thérein or with ‘the use of public property or administration of justice therein or thereon conducted or so as to obstruct or inter- fere with free use of public streets, side- walks or other : piblic ways adjacent or contigvous thereto. : Section II: Any. person. guilty of violating this act shall be deemed guilty of a misdemeanor and upon convic- © tion thereof shall be fined no more than Five Hundred and No/100 ($500.00) Dollars or imprisoned in jail not more than six (6) months or both such fine- and imprisonment. Section III: This act shall take effect and be in force from and after its | eaeene- re ™ * 4 e ® . EP TILT. ELIE SELLE ROLE NOTE: LIT ENTE LE TE PR AE IE gt . “ower - rT $ i [17] | Suprrementan (Compiaint plaint in the following respects: - Not only -is House Bill 546 now signed into law in Mississippi unconstitutional, but it is unconstitutionally applied and used in that since its enactment at least 48 persons have been arrested under its provisions and charged in the County Court of Forrest County Mississippi - Plaintiffs supplement and amend their original com- — with having violated it; all of those being friends and “supporters of the plaintiffs herein, II That pending the issuance of any order from any court convening under this complaint, there should be issued a temporary restraining order prohibiting the enforcement of said statute-inasmuch as its enforcement has caused the plaintiffs particularly and the Negro race and their . supporters generally in Mississippi irreparable injuries in their efforts to register and vote, and will continue to - do so'in the future, since the State authorities of Mississippi have avowed the strict enforcement of the statute. ‘That James ‘K. Dukes, who should be substituted as a party defendant for Joe R. King erroneously cited County Attorney for Forrest County, has vowed: strict enforce- ment of this statute. | IV That there are now pending in the County Court. for Forrest County of Mississippi 48 ‘prosecutions for alleged [18] violations of this statute, all based on the defendants’ ‘and others’ exercise of First and Fourteenth Amendment rights in the current Voter Registration Campaign in. Forrest County: - Wuenrzror:, plaintiffs pray that a temporary restraining rder issue herein forbidding the enforcement of House Bill 346 as enacted into law pending the ruling of the Three- Judge Court herein requested. Age Wes > . *. ae ° * * so L) ’ Aig ces 13 14g 1) ones ANSWERS OF DEFENDANTS Come Paul B: J ohnson, individually and as Governot of the State of Mississippi, James K. Dukes, individually and _ as County Attorney of Forrest County, Mississippi, James Finch, individually and as District Attorney of Forrest — ‘County, Mississippi and Bud Gray, individually and as Sheriff of Forrest County, Mississippi, Defendants, and file . herewith their answer to the Amended Complaint filed in this action: ‘°— 1. Defendants admit the allegations of Paragraphs 2, 3; | 4 and 5 of the Amended Complaint... 2. Defendants are without information s: afficient to:-form — a belief as to the allegations of Paragraph 8 of the Amended Complaint and, therefore, deny the same. , 3. Defendants deny the allegations of Paragraph 9 of the _ Amended Complaint. - 4, Defendants deny the- allegations. of Paragraph 10 of the Amended Complaint. [20] 5. Defendants deny the allegations of Paragraph 11 of the Amended Complaint. 6. Defendants deny the allegations of Paragraph 12 of the Amended Congplaint. ‘ . 7. Defendants deny the allegations of Paragraph 18 of the Amended Complaint. - 8. Defendants deny the allegations of Paragraph 14 of the Amended Complaint. . 9. Defendants admit that since April 10, 1964, numerous persons, including Plaintiff Cameron, have been arrested and charged with the violation of House Bill 546 of the . 1964 Session of the Mississippi Fegislature, but deny that they were arrested by the Defendant Johnson, the Defen- dant Dukes or the Defendant Finch or any of their agents. They are without information sufficient to form a belief as’ to whether or not the persons arrested are members of.any class purportedly represented by Plaintiffs, and therefore, deny the same. They deny that the said statute is illegal or void all as charged in Paragraph 15 of the Amended: Com- plaint. 10. Defendants ina the allegations of. Paragraph 16 of the Amended Complaint. ters Le ee ERAT INR Cm LERMAN AA ACLRAB GT He ; ae , me S 9° Ae, betes the Amended Complaint. | : 12. Defendants deny the allegations of Paragraph num- = LE IRN? . BE eae bx 23 | #-.no-..,,,48tering. Such is not'the case. That was not the purpose of the statute. The statute does not undertake in the slightest degree to. condemn picketing or registering or any peaceable conduct of. any citizen. There is a well settled principle of law and, in addition thereto, a statute in Mississippi to the effect that words and phrases in an Act are given their usual and ordinary construction unless . ~ the Act indicates to the contrary. Applying this rule of . law to the Act here. under attack, it is clear that picketing or peaceful demonstrations are not condemned, nor are expressions of opinion. Let us emphasize the gist and | purpose of the Act, and it reads: ‘It shall be unlawful for any person, singly or in concert ._ with others, to engage in picketing or mass demonstrations in such a manner as to Obstruct or Interferé With Free Ingress or Egress To and From Any. Public Premises, =~ ¥ State Property, County or Municipal Courthouses, City Halls * * * * or Other Buildings * * * * or With the Trans- . action of Public Business or Administration of Justice Therein or Thereon Conducted or so as to Obstruct or Interfere with Free Use of the Public Streets * * * *” [33] Thus it is readily seen that what the Act condemns, after defining the ingress and egress ‘fobstruction’’ has places, is the obstruction of the free to and from the buildings. The word a definite meaning and has been con- strued by the Supreme Court of Mississippi under a similar statute where the word ‘‘obstruction’’ was the main point of the case. . This is the case of State v. Lucas, 73 So. (2) 158. In this case Lucas was: charged with obstructing a railroad by an indictment. The lower court sustained a demurrer on the ground that the statute under which he -was indicted was be constitutional. unconstitutional. The Supreme Court The Act under attack tliers was Section 2340 of the Mississippi Code of 1942, which reads: | ‘Railroads—Wantonly or negligently obstructing or in- juring—If any person shall wantonly or negligently ob- struct or injure any Railroad, upon conviction he shall be _ fined not more th than twelve months in the county jail, or both.’? an $2,000.00 or imprisoned no longer . ASL SAL REPRE Ts ' . sania: . holding the Act to . T. The Defendant ‘was indicted for negligently and wan-.- . tonly leaving his unattended automobile parked on said - railroad at a crossing of said railroad and the private road for automobiles. The Court said: «Appellee says the statute is - unconstitutional or that . it\does not’ sufficiently define the elements constituting the crime and the indictment is void because it does not sufficiently inform the carpncant of the acts he is charged = to have committed.’’ ‘The Court further said: “‘But we should give to the word its ‘nian and usually N accepted meaning, looking to the end to be accomplished, and doing that, we think it means. the railroad track—the part of the right of way occupied by the tracks over which . the trains, cars, etc. are transported. The meaning of the indictment is that appellee obstructed the tracks of the railroad. - The Court. then tok up the definition of the word ‘‘ob: struct’’, since appellee was contending that .it was too broad and general, and cited Webster’s International Dic- . tionary, 2d Edition, defining the. word ‘‘obstruct’’, all of which definitions in the dictionary are complete within [34] themselves. Among others, it means to block up, to stop up, or to close as a way. The Court then says: ‘‘The objects of the statute under consideration, con- strued by the section immediately following it, are to prevent interference with the proper use of the railroad in carrying out its, functions and to protect its property, passengers and: servants from injury or probable injury.”’ The above case was decided in June, 1954. See also, Words and Phrases, 2d Ed.,; Vol. 29, defining the word “obstruct” and the words ‘interfere. ‘witha . On the definite, positive, unequivocal and certain ‘mean- ~ ing of the word ‘‘obstruct’’, a statute containing it advises the public what it condemns. One charged with obstruction - by an indictment, is‘entitled to a trial and then it is a question for the Court to determine whether the facts proven against him show him.to be guilty. One of the leading cases, familiar to all lawyers in the a ETE EDIT 8S oh CT OEE BNO NE Mi, OT BES A OTE MR EO OE pO CDOT 4 a a ‘ Ratattignterds3s sated, Latte, ‘witer Beais paca Sn YYW Rey eee eee TT eae pend ss a Re RAS POE, TOTO en LI IT, LT IIT is " e ae A ? . 25 courts, is that of Douglas v. Jeannette, 319 U.S: 157. At page 163 of the report’ the Supreme Court used this lan- guage: , : *“‘Congress, by its legislation, has adopted the policy, with certain well defined’ statutory exceptions, of leaving - generally to the state courts ‘the trial of criminal cases arising undéf state laws, subject to review by this court . of any federal questions involved, Hence, courts of equity in the exercise ‘of their discretionary powers should con- form to this poi by refusing to interfere with or em- barrass threatene proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent; and equitable remedies infringing _ this independence of the states—though they might other: wise be given—should be withheld if sought on slight or inconsequential grounds.’’ Giovanni v. Camden Ins. Ass’n, | 296 U.S. 64; Matthews v. Rodgers, 284 U.S. 521; ef. United States ex, rel. Kennedy v. Tyler, 296 U.S. 13; Massachusetts’ ’ State v. Benton, 272 U.S. 525, cited by them. as In that same case, supra, Mr. Chief Justice Stone used this impressive penn | , “It is a familar. rule that courts 6f equity do not or- dinarily restrain criminal prosecution. No person is im- mune from prosecution in good-faith for his alleged crim- inal acts. Its imminence, even though alleged to be in _ Violation of constitutional ‘guaranties, is no ground for equity relief since the lawfulness. or constitutionality of the statutes or ordinance under which the prosecution is brought may be determined as readily in a criminal case as in a.suit for injunction.” There is a long line of decisions by the Supreme Court [35] of the United States upholding this doctrine. See Davis v. Burke, 179 U.S. 399; 45 Law Ed. 249, Ex Parte Hawk, 321 U.S. 114; 88 Law Ed. 572. Stack v. Boyle; 342° U.S. 1; 96 Law Ed. 3. Brown v. Allen, 344 U.S. 443; 97 Law Ed. 469. Amalgamated Clothing Workers of America v. Richman Bros. Co., 348 U.S. 011;-99 Law Ed. 600. With reference to the statute prohibiting an injunction to stay proceedings in a state court, 28 USCA, Sec. 2283, ° 96 » in the Amalgamated case, supra, the Supreme Court ap- - proved the action of the Court of Appeals denying the in- - junction, holding that the quoted statute constituted ‘‘Leg- islative policy *°* * * in a clear cut prohibition; uamucane only by specifically defined/ exceptions.”? See also Snowden v. Hughes, 321 U.S. 1; 88 Law Ed. 497. " Schwartz ‘v..Texas, 344 U.S. 199; 97 Law Ed. 231. ’ In Speiser v. Randall, 357 US. 513, the Jeannette case - was cited in a cunearting opinion by Mr. Justice Black — in support of a different point from that under considera-— tion. Jeannette was also cited in the majority in Monroe v. Pape 365 U.S. 167 and in.the dissenting opinion by Mr.. Justice Frankfurter in that case. See also Stefanelli v: Minard, 342 U'S. 117 and Darr Vv. _ Burford, 339 U.S. 200. .. The statute which prohibits: federal courts granting in- - junctions to stay proceedings in a state court is very similar . to the statute, in its language, which prohibits the federal “courts from issuing a writ of habeas corpus in behalf of “ a person in custody pursuant to a judgment of the state court, unless it appears that the applicant has exhausted _ remedies available to him in the courts of the state, with certain exceptions, because it is the statement of the policy by Congress that. the fedéral courts shall not interfere with state proceedings except under unusual circumstances. | [36] ‘This statute with reference to habeas corpus arose in the case of the application of Elizabeth Wyckoff in the Southern District of Mississippi and the opinion of the District J udge is reported 196 Fed. Sup. 515. This is a case that is very applicable to. the facts of the case that: is here pending. Wyckoff was in jail‘and sought a writ of ~ habeas corpus, but it appeared from the statutes of the _ State of Mississippi that she had a complete, adequate and full remedy at law under the laws of the State, and the opinion in that case outlines the procedure that the State has or gives to one who is unable to pay costs or give bond, etc. In that case several quotations specifically point up quotations from the Supreme Court of the United’ States in some of the cases that have been hereinbefore. ' eited. The District Court denied the writ of habeas corpus to Wyckoff andthe applicant appealed to the Court of Appeals for the Fifth Circuit. The Court of Appeals es we = al ES " “jew ¥ PE ee ee ee Re one 27 . affirmed the District Court. I do not find where the opinion . of the Court of Appeals is reported in the Federal Reporter, but it is reported in 6 Race Relations Law Reporter, 793. Again the opinion of the Court of Appeals’is approved in the case of James Brown, et al v. Rayfield, 320 Fed. (2d) 196. In the case of Rayford, who is Chief of Police of the City of Jackson, Mississippi, Chief Judge Tuttle, being the organ of the Court, quoted from the Wyckoff case with ap- proval on similar facts and again approved the order of the District Court in denying the petition for writ of habeas corpus. The petitioners then. made an application _ to Mr. Justice Black and Mr. Justice Clark who were acting jointly as members of the United States Supreme Court for the ‘grant of the petition for habeas corpus. In deny- ing the application those justices stated: . ‘“‘The petition for habeas corpus is denied because the factual allegations fall short of Showing that there are — [37] no Mississippi State processes available by appeal or otherwise for petitioners to challenge that state conviction, which processes would effectively protect their constitu- tional rights, particularly since any denial of such rights. by the highest court of the state can be remedied by ap- propriate appellate proceedings in the. Supreme Court of the United States.’” ; The Fifth Circuit again approved the same principle in the per curiam opinion in the case of Green v. Balkcom, Warden of the Georgia State Prison, decided April 23, 1964, reported in 331 Fed. (2d) 742 and dismissed the petition for writ of habeas ‘corpus. eo _In the case of Allen-Bradley Local No. 1111, et al v. Wisconsin Employment Relations Board, et al, 315 U.S. 740 the Supreme Court of the United States said this: ‘Nor will we assume in advance that a state will so construe its law as to bring it into eonflict with thé Fed- eral Constitution or an Act of Congress.’? The case of Wilson v. Schnettler, et al, 365 U.S. 381. is a conclusive authority on the doctrine that when a peti- tioner. has invoked the jurisdiction of the state court the _ federal court will abstain on the ground that he does have ‘.. @ complete remedy at law and has invoked the jurisdiction - of the state court. rai fat a a ee oar wi Tn the case at fae the ‘record, shows that petitioners have:invoked the jurisdiciton of the state court of filing a motion to quash the affidavits on the ground that the Act is unconstitutional and the County: Court overruled that '* motion—the exact facts as in the Wilson case.” In the i Wilson cast, at page 384, the Court said: ; \{tIndeed, the allegations of the complaint affirmatively ° w that petitioner does have a remedy in the Illinois. ‘ court and that he has actually prosecuted it there, but only to the point of an adverse interlocutory order. That court, whose jurisdiction first attached, retains jurisdiction over | , this matter to the exclusion of all other courts.”’ The soured, of that holding :was the case of Harkrader v.: Wadley, 172 U:S, 148.. In the Harkrader case the Supreme | Court said: = “While a state court and a patert: of the United ‘States ea may each take jurisdiction of a matter, the tribunal where jurisdiction first attaches» “holds it, to the exclusion of. - [38] the other, until its duty is fully performed . — the jurisdiction involved is exhausted: ~ -, See also Peck. v. Jenness, 7 Howard ima the quotation ‘from it in the footnote. _ Inthe recent case of NLRB v. Fruit & Vegetabis Packers 2 anti Warehousemen No. 88, decided April 20, 1964;. Mr. ] ~ JusticeeBlack’s concurring opinion points out that patrol-. | ling is, of course, conduct and is not speech and, therefore, | .is not directly protected by the First Amendment. Here, . the statute under attack condemns conduct and not picket- ing or expressions of free speech or of the press. No _arrests.were made until there was a complete obstruction by the petitioners ifi:such manner as to completely block © , the entrances ,and. exits of the courthouse doors. -Another recent case decided by the Supreme Court is _ that of Lawrence W. Baggett, et al, appellants.v. Dorothy Bullitt, et.al, appellees, reported.in the U.S. Law Week of date June 6; 1964; page 4425. _This case discusses freely the doctrine of abstention atid reviews the many cases - approving it, as well.as those under.certain exigencies disapproving it, under the peculiar facts of that case . and’the further fact that it was not such a statute of a % vee epee - . 2 r 7 Ou> ° Piha ieat hia ee prBane- Bite oe APRN IL LT LION IE NNT I NE TOIT TEIN TN I a FT PT GT 5H Hg ¢ ha Ot hee 000 NM A eA, BND, Oe ° ote), ~ 2 she Pills tae oa . 1. Original amended complaitits of appellants. ies 2, “Motion for convening of a three-judge federal court. 3. 3. All Answers. of the appellees. ° 4. All affidavits presented by appellants and appellees. 3 [53] 5. Majority opinion and findings of fact of the District Court Judges and the dissenting opinion of the Cireuit Judge. ° phasis endaleiek Azribicatisdaatrnas pSaimer cinie Adeed, Maa ae ae 7) ek FS * * ‘f a & ee a a “se - v o ait Ores PR Sen aI e TCE ET LE, ere tA wd 41 154] Ormsion. oF THE Unrrep States District ‘Court, _ DEceMBER 24, 1966 = Before Rives and Coteman, Circuit Judges, and Cox; ' District Judge. CoLEMaN, Circuit J udge. This is the second: time this case has been batons this Court for hearing and decision. Invoking Title 42, U.S.C, §§ 1971, 1983, and 1985, the plaintiffs originally filed their ss complaint on April 13, 1964, against the governor of Mis- ° sissippi and various officials j in Forrest County, Mississippi. They sought a declaratory judgment .and injunction, at- tacking the constitutionality of House. Bill No. 546 of the ‘. Laws of ee of 1964.” By Sppropriate amendments, 1 - °°” \ Ffouse Bill No. 546 _ An Act to -Prohibit the Unlawful Picketing of State Buildings, Courthouses, Public Streets, and Sidewalks. Be it Enacted by the Legislature of the State of Mis- sissippi: ; Section 1. It shall be unlawful. for any person, singly or in concert with others, to engage i picketing or mass ' demonstrations in such a manner as to obstruct or [unrea- sonably] interfere with free i ingress or egress to and from any public premises, State property, county or municipal courthouses, city halls, office buildings, jails, or other public - buildings or property owned by the State of Mississippi or any county or municipal government located therein or with the transaction of public business or administration | of justice therein or thereon conducted or so as to obstruct’ or [unreasonably] interfere with free use-of public streets, ’ sidewalks or other m6 ways adjacent or contiguous ‘thereto. Section -2. Any person guilty of nae this act shall be deemed guilty of a misdeméanor and, upon ‘conviction . . thereof, ‘shall be fined not more than Five Hundred Dollars ($500.00), or imprisoned in jail not more than six (6). - months, or both such mie and imprisonment. - 42 the suit became a class action and plaintiffs seek to enjoin the prosecutions already begun as wel as the future en- forcement of the statute. [55] The first hearing was before Circuit Judge Rives _ and District Judges Mize and Cox. Upon full hearing, relief was denied. The findings of fact, conclusions of _ law, and opinion of the Court are reported at 244 Fed. Supp. — 846 (1964). ' Judge Rives dissented, being of the view that it would _be ‘‘difficult to conceive. of a statute drawn in.broader or more vague and sweeping terms than that here under at- tack.’ In my opinion, : the statute is so clearly unconstitu- tional that this case is hardly‘‘one required * * * to be heard and determined by a District Court of three judges’ [citing authorities].”’ Moreover, he was of the opinion that the doctrine of abstention should not have been in- voked and that the plaintiffs were clearly entitled to an injunction. Upon appeal to the Supreme Cont, the Sideiieat was vacated, 381°U.S. 741, 85 S.Ct. 1751, ©. L.Ed.2d ; (June 7, 1965). The case was remanded ‘*for, reconsidera- : ‘tion in the light of Dombrowski v. Pfister, 380, US. 479.” 4 We were given the following specific directions: . i ‘‘On remand, the District Court should first con- j . sider whether 98 U.S.C. § 2283 (1958'ed.) bars a fed- a eral injunction in this case, see 380 U.S., at 484, n. 2. i If § 2283 is not a bar, the Court should then determine } whether relief is proper in light of the criteria ‘set — forth in Dombrquski. Ts = F B ; ° fons ® eee | pote e + s Te eS * adc eis SCA ed Soin hed lady alas xchat die playa ssp. ” 3 Mr. Justices Black, Harlan, Stewart, and White dissented, » §. 381US., beginning at p. 742 and concluding at p. 759. ee) Section 3. This act Shall take effect and be in force from i and after its passage. : Note: The word ‘‘unreasonably’’ in brackets in the , text were added by amendment to the Statute 4 - on July 9th, 1964. House Bill 546 became Chapter 343 of the Laws of 1964, ; later codified as Local of the eT Code of 1942, ; annotated. PRES PORE IIE LP EE RIE . = — = [56], Upon the death of Judge Mize, the present writer was designated to serve in his stead. : In the meantime, the criminal prosecutions here sought ’ to be enjoined were removed from the State Court to the United States District Court for the Southern District of Mississippi. That Court remanded the cases (approxi- mately 48 in number). This was appealed. The United States Court of Appeals for the Fifth Circuit affirmed the remand, sub. nom. Ben Hartfield, Et Al., v. State of Mis- sissippt, 363 F.2d 869 (July 21, 1966), the Court being of the opinion that the order should be sustained on the au- thority of City of Greenwood v. Peacock, 384 U.S. 808, ._ 86 S. Ct. 1800, 16 L.Ed.2d 944. _ On September 23, 1966, this Court stayed the criminal prosecutions in. the State courts until such time as the — instant proceedings are finally heard and determined. In the meantime, on October 15, 1965, we heard further. - proof and oral arguments on behalf of the parties. Later, the plaintiff and‘the defendants filed written briefs. : We now come to a consideration of thé questions which the Supreme Court directed this Court to answer. ° I Facts Before giving our. views of what the answers should be, we allude briefly to the facts. We-do not disturb, .of course, the findings of fact already made by the Court as they appear in 244 Fed. Supp. at 847. Pursuant to the *In summary, at pp. 848 and 849 of. 244 F. Supp. 5 the findings were: 1. There. was no evidence that there was a plan or a conspiracy on the part of defendants or in the enactment of the statute to suppress, deter, impede or violate any constitutional right of the. plaintiffs ° to free speech, assembly, to register, to vote, or to . demonstrate peacefully and lawfully; 2. The plaintiffs deliberately and intentionally: blocked the sidewalk and one of the entrances to the. Court- house; and 3. The prosecution for violation of § 2318.5 is in el f | | . aith. . tong - ae eer SD MRL BO IE RES EY aoa FOREPLAY 361 RTO Sine 440 hearing of Gaeaer 15, 1965, we supplementally_ find the following to have been established by the evidence. — ‘(57] These plaintiffs, after arrest on ‘the courthouse grounds, were charged in the State court substantially in the language of the statute. The blocking of the sidewalks _ and entrances and interfering with the free use of the court-_ house sidewalks and entrances was the gravamen of the “offense. We do not sit in this proceeding to determine the ‘ guilt or innocence of the plaintiffs but it may be said that we are here to determine whether there is substantial cause in law and fact-supporting the right of duly constituted state authorities to have these questions of guilt or in- nocence determined by. appropriate criminal prosecution. In any event, from all the evidence, including testimony of witnesses on the stand, we find that for many days prior to the arrest and prosecution here in question these complainants and others, carrying banners proclaiming ~ their views, marched around the entire courthouse building. The Sheriff, charged by law with-the custody of the court- house and its grounds, requested the leaders to limit their march ,to. the south half of the front of the courthouse and around the narrow concrete, walks at the northwest . corner of the building, fronting northerly on North Main © Street. For many days, the demonstrators honored this request. Then, a larger group appeared and began march- ing so close together that they blocked certain vital. en- trances to the courthouse, particularly the entrance to the Cooperative Extension Service, a function in which the United States participates. At last, on. April 10, 1964, the Sheriff read the statute to the participants and warned them that if they violated it he would have no. choice but — [58] to arrest them. Those participating in the picketing conferred among themselves for most of the night, obtained legal advice, and decided to march on the courthouse | grounds the next day. We find that there was no harass- ment, intimidation, or oppression of these complainants in their efforts to ‘exercise their constitutional rights, but they were arrested and they are being prosecuted in good faith for their deliberate violation of that. part of the statute which denounces interference with the orderly use of courthouse ‘facilities by ‘all citizens alike. * This — us face to face with the validity or invalidity 45 S, of Section 2318.5 of the Mississippi Code, and we consider only the questions which the Supreme Court was of the view that we should consider in determining the fate of this litigation. : Il Does 28 U.S.C.A. § 29838 deny this Court the power to enjoin these criminal prosecutions? We think it does. At the outset, the Supreme Court directed our. attention to note 2, 380 U.S. at 484. This was a note to the opinion - of the Court i in Dombrowski v. Pfister, ‘supra, which will ” set out in the margin.* ~ 8 Section 2283, 28 U.S.C. - A Court of the United States may not grant an injunc- tion to.stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of-its jurisdiction, or to protect or effectuate its einer June 25, 1948, c. 646, 62 Stat. 968. bare . *28 U.S.C. § 2283 (1958 ed.) provides that: A court of the United States may not grant an injunction - to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. The District Court did not suggest that this statute denied power to issue the injunctions sought. This statute and its predecessors do not pre¢lude injunctions against the institution of state court proceedings, but only bar stays — of suits already instituted. Se Ex parte Young,.supra. See generally Warren, Federal and State Court Interference, 43 Harv. L. Rev. 345, 366-378 (1930); Note, Federal Power to Enjoin State Court Proceedings, 74 Harv. L..Rev. 726, 728-729 (1961). Since the grand jury was not. convened and*indictments were not obtained until after the filing of. © the-complaint, which sought interlocutory as well as per- manent relief, no state ‘‘proceedings’’ were pending within the intendment of § 2283. To hold otherwise would mean - that any threat of prosecution sufficient to justify equitable : intervention would also be a ‘‘proceeding’’ for § 2283. Nor are the subsequently obtained indictments ‘‘proceedings’’ against which injunctive relief is precluded by § 2283. The indictments were obtained only because the District Court . te ~ . . ‘ess [LEME abo TNs ot RB +. . . V eye Sep SPREE et AME gE 46 Dombrowski sought injunctive and. declaratory relief prior to arrest or prosecution, it being alleged that such was threatened to harass the plaintiffs and discourage them and their supporters from asserting-and attempting to vin- dicate the constitutional rights of Negro citizens of Louisi- ana. Note 2.at p. 484 of 380 U.S. contains the following : [59] specific language, ‘‘this statute [§ 2283] and its pred- ~ ecessors do not preclude injunctions against the institution of state court proceedings, but only, bar stays of suits al-— - ready -instituted.’’. The footnote continued, however, to the effect that it was unnecessary to-resolve the question of whether suits under 42 U.S.C. ¢1983 (1958 ed.) come. under the ‘‘expressly authorized’’ exception to § 2283. In Hill v. Martin, 296 U.S. 393, (1935) the Supreme Court © (opinion by Mr. Justice Brandeis) referred to the provi- sions of this Section, then — as a =» saying, at 403: ‘“«The prohibition of § 265 is against a stay of ‘pro- ceedings in any court of a State’. - That term is com- © prehensive. It includes all steps taken or which may be taffén in the state court or by its officers from the «. Institution to the close of the final process. -It applies - to appellate as well as to original proceedings; and is . independent of the doctrine of res adjudicate.’’ Leaving aside any dissertation on ‘‘jurisdiction’’ or ‘‘comity,’’ we think the plain language of the statute means what it says and constitutes a positive direction by Congress which this Court should obey. The 1948 Revisors did not change the-mandatory language as above expounded _ by the Supreme Court. “erroneously dismissed the complaint and dissolved the temporary restraining order issued by Judge Wisdom in ~ - aid of the jurisdiction of the District Court properly invoked by the complaint. We therefore find it unnecessary ~ to resolve the question whether suits under 42 U.S.C. § 1983 (1958 ed.) come under the ‘‘expressly authorized’’ excep- tion to § 2283. Compare Cooper v. Hutchinson, ¥84 F.2d 119, 124 (C.A. 3d Cir. 1950), with Smith v. Village of Lans- ing, 241 F.2d 856, 859 (C.A. 7th Cir. 1957). See Note, 74 Harv.-L. Rev. 726, 738 (1961). . sneebemnmenperingreninssmce ff eons , — 47. ‘Since ‘this Court rendered its first decision, the. Fourth Circuit Court of Appeals has decided Baines v. city of Danville, 337 F.2d 579, August 10, 1964. ans : [60] Section 22837 was there thoroughly analyzed. The - authorities were e austively examined. Tt was held that the section is a limitation on the exercise of the equity jurisdiction of District Courts. The Court declined to en- join prosecutions pending for violation of ordinances of the City of Danville. It was held that 42 U.S.C. § 1983 does not create an exception to the anti-injunction statute. We, therefore, are of the opinion that § 2283 of Title 28, . U.S.C., prohibits this Court from ‘enjoining or abating the criminal prosecutions instituted against the plaintiffs prior . to the filing of the suit for injunction. ; We are of the further opinion, following the decision in Baines, that § 1983, 42 U.S.C., creates no exceptidn to ‘this anti-injunction statute. The prayer that this Court enjoin or abeie the sending’ prosecutions will be denied. The matter does not end here, however, for Baines hela that restraints upon future prosecutions are beyond the reach of § 2283. No doubt this principle i is what prompted | the second portion.of the directidéns from the Supreme. Court, which may here be restated as follows: Applying the principles -of Dombrowski, did State conduct in this case justify declaratory or injunctive relief against further enforcement of the statute? We answer this question in the negative. We accept as correct the statement of plaintiff’s counsel ; appearing at page seven of his excellent brief that: [61]: ‘‘Dombrowski sets forth two separate and dis- tinct categories of circumstances in which the exercise of federal equity power to restrain state criminal prose- cutions is appropriate. The first * * * relates to situa- tions in which state statutes are challenged on their face as ‘overly broad and vague regulations of expres- sion’* * *, [The second] is sacar: threatened prose- © cutions under the statute.’’ The. posture of this case necessitates discussion only of the first category. 48 We therefore deal only with the contentions*of plaintiffs that the statute is so broad, vague, indefinite, and lacking in definitely ascertainable standards as to be void on its face. © We think it is as specific and definite as the Florida stat- ute sustained against such an attack in Harriett Louise Adderley, et al., Petitioners v. State of Florida, No. 19, October Term, 1966 [35 L.W. 4013], US. ‘ S.Ct. , L.Ed2d . That statute denounced “Every trespass upon the property of another, committed with a, malicious and mischievous intent * * *.’? The Florida ~ . Court defined-a malicious act as one done oe . wilfulty and without any legal justification. House. Bill 546 of the Laws of Mississippi does not pro-_ hibit picketing or mass demonstrations on courthouse grounds. The prohibited factor is the obstruction or un- reasonable interference with free ingress or sis to and . from the courthouse. . [62]. In Adderley, the Supreme Court saatheuiail vw fol- : lowing observations: - ‘“‘The sheriff, as jail’ custodian, had ales as ihe ; state courts have here held, to direct that’ this large — crowd of people get off ‘the grounds,” and ‘The State, no less than a private owner of prop- ‘erty, has power to preserve the property under its . control for the use to which it is ey dedicated,”’ and “The United States Constitution does not forbid a State to control the use of its own property for its own . lawful ne purpose. ag’, Os ate oe * The recstd shows that these plaintiffs for about three months had been picketing the courthouse ‘and they had » not been arrested because they picketed in space which did _ not interfere with the normal use of courthouse facilities by all citizens Alike, regardless of color or other considera- tion. : April eleventh, however, was another matter. The. Legis- ‘lature passed a law attempting to prescribe some, order- to these activities, not really interfering with plaintiffs even on courthouse grounds. so long as they did not inter- fere with others. The record shows that these individuals, - SB AOR MET EPR ee aaa be ss a | 49 though ‘‘frightened’’ as ‘they claimed, ‘deliberately came to a contest of wills with the sheriff, who had lawful custody | of the premises, who had a duty to enforce the statute, and [63] who had a duty to see that they obeyed it.. Plaintiffs knew what they: were doing,'they knew what the statute. proscribed, but they went ahead. ie 7 : Plaintiffs, in their very able and brilliantly written: brief, argue that the addition of the word ‘‘unreasonably’’ to the statute made it even more vague and indefinite, but we* disagree. The word ‘‘unreasonable’’ seems to have been well understood by the founders of the Republic when they . used it in the Fourth Amendment, where it remains, and is enforced, as it should be, to this: day. i _ Plaintiffs also say that the action of City (not County) authorities in permitting the use of the streets for school parades and the like, a pragtice customarily enjoyed by the community as a part of ordinary community activities, .par- ticipated in by all races, constitutes selective enforcement of the statute and thus invalidates it. We cannot agree with this argument, Weare not here dealing with parades ‘carried Sy by common consent on the public streets.. We here confront picketing on the courthouse grounds in such manner as to interfere with the use of the courthouse by other citizens who had an equal right to its use. | We hold that under all the facts and circumstances of ‘this case the principles announced in Dombrowski have not been brought into play, that injunctive or declaratory relief as to future enforcement of the statute is not justified. By way of epilogue, there are other important reasons, in the exercise of judicial discretion in equity, for declining injunctive or declaratory relief in this case. The plaintiffs allege that they were picketing the courthouse grounds for [64-67] the purpose of obtaining the right to vote and to encourage. others to. do so. Since this controversy arose, ° the people of Mississippi, pursuant to Resolutions of the Legislature, iri the summer of 1965, went’ to the polls and overwhelmingly amended the State Constitution to elimi- - nate all literacy tests for. voting, except the ability to read and write. By the Voting Rights Act of 1965, Congress eliminated the use of any literacy test in the State of Mis- Sissippi during the next five yeafs. Federal Registrars were provided. In South Carolina v. Katzenbach, the Su- preme Court upheld the validity of this federal legislation. é ‘+ @ . SOS RNR ea srE a a a a a eas ‘log ;™ SS it eg ° , > °o , . on? y . ra " e \ F = é \ The right of any Mississippi citizen, of lawful age ‘and not —S a convict of felony, to vote is now beyond all. controversy or ‘unrest. Picketing to obtain the vote or to gpoourage eet others to do so is a thig of the past. This opinion. shall constitute our Findings of Fact and Conclusions of Law as provided by Rule 52(a) of the Fed- - eral Rules of Civil Procedure, 28 U.S.C. ‘An Order may be submitted — the’ Complaint. ef | “ : PAE PLP GOO Re E086 Pm — Peacctis abet ml paiia esd ve * [68] — * [ Filed December 24, 1966 Cox, District Judge, Specially Concurring : This class action involves forty-eight persons who were being prosecuted for the violation of § 2318.5 Mississippi Code 1942, captioned: ‘‘Picketing which. interferes with ingress and egress to and from public buildings, premises, streets and sidewalks.’’ The body of the act makes it un- lawful ‘‘for any person, singularly or in concert with others, to engage in picketing or mass demonstrations, in such a manner as to obstruct or unreasonably interfere-with free ingress or egress to and from any public premise, state property, county or municipal courthouses, city halls, office buildings, jails or other public buildings or property owned by the State of Mississippi, or any county or municipal - government located therein, or with the transaction of pub- lie business or administration of justice therein or thereon conducted or so as to obstruct or -unreasonably interfere with free use of public streets, sidewalks or other public ways adjacent or contiguous thereto, ete.’’ These plain- tiffs were charged in the state court in the language of the statute with obstructing. the sidewalks adjacent to @he Rothe ‘county courthouse building of Forrest County, Mississippi - and with blocking the entrances to such building by walking along ‘such narrow walks so close together as to violate [69] this statute. The plaintiffs’ lawyers say that this statute is. vulnerable to the ‘‘void for vagueness’’ doctrine. Significantly, not-one of the plaintiffs elected to testify that he could not reasonably understand that his conduct was proscribed by that act. It must be and is conclugively presumed that if such had been the facts that at least’ one of the plaintiffs would have so testified. This statute is attended by one of the strongest known presumption as to its validity. These plaintiffs well understood that which , _ was proscribed thereby and defiantly persisted in. igtior- ing the request of the sheriff that they desist from walking © so close together and that they picket in a lawful fashion. A statute will not be invalidated as vague’ simply because ’ difficulty is found in determining whether certain marginal offenses fall within their language. Umnited States v. Na- tional Dairy?Products Corporation, 372 US 29, 83 S.Ct. 594. ' In Jordan v. DeGeorge, 341 US 223, 71 S.Ct. 703, this’ vague- 7 aes oe rm FELINE See PE FES I ~ , . 2 eee Se 2 a A a pee ; eee ness doctrine was applied to the words ‘‘moral turpitude’’ involved in the Immigration Act of 1917 [8 U-S.C.A. * §155(a)]. The Court said ‘‘impossible standards of ‘spe- cifity are not required: United States v. Petrillo, 332 US 71 1, 67 S.Ct. 1538. The test is whether the language conveys a j @ stifficiently definite warning as to the proscribed conduct ) a when measured by common ,understanding and practices. Connally v. General Construction Company, 269.US. 385, 46 S.Ct. 126.’’ That was not a criminal statute but the : penalty.involved was deportation or banishment from the . —~ @ country and the Court applied such doctrine thereto and approved said enactment. In Boyce Motor Innes, Inc. v. Uniied States, 342 US 337, 72 S.Ct. 329, 330, -it is said: ‘A eriminal statute must be sifficiently definite to give notice of the a ete conduct to one whe would avoid its perial- © ties, and to gtide the judge in its application and the law- yer. in-defending one charged with its violation. But few words possess the precision of mathematical. symbols, most - [70] statutes must deal with untold and unforeseen varia- }° tions in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibi- tong: Consequently, no more than a reasonable degree of. certainty can be demanded: Nor is it unfair to raquire that one who deliberately goes perilously close xs n areaé of proscribed conduct shail take the -_ that he may cross the line.’’ - In Samuel Roth v: United States of America, 354 US. 476, 77 S.Ct. 1304, there was involved the question as to the . vagueness or not ‘of the Federal ‘Obscenity Statute appear- ing as 18 U.S.C.A. § 1461. In affirming a conviction, the . , Court said that many decisions recognize that the terms of obscenity statutes are not precise but said that lack of. precision is not itself offensive to the requirements of due ~ process ; further saying: ‘‘The Constitution does not re- . quire impossible standards; all that is required i is thatthe - language conveys sufficiently definite warning as to the - .proscribed conduct when measured by- common under- standing and practices. United States v. Petrillo, supra. These words applied according to the proper standard - for. judging obscenity, already. discussed, give adequate warning of - conduct proscribed and mark boundaries: a S o weg ® yr wir “ POSTON PE CRIT ARDS, LATTICE OT RSPON a RGA hs nen EN POREE RIT, | sufficiently distinct for judges and juries fairly to ad- minister the law. That there may be marginal cases in - which it is difficult to determine the side of the line on which a.particular fact situation falls is no. sufficient rea- son to hold the language too ambiguous to define a criminal offense,”” citing many cases. % There is nothing in this act or in its enforcement i in this case which even remotely relates to impinging upon any First Amendment rights. of these plaintiffs. Nobody — doubted or questioned or denied the right of these plain- - tiffs to walk or march or demonstrate as they wished with banners containing protestations of their own choice. But this-statute simply made picketing unlawful even for such [71] purpose if it’ blocked the entrances and impeded or pre-. vented the public its right. of ingress and’ egress to such public building. That is all that is involved inthis case. Judge Coleman has properly and correctly answered the questions directed by the Supreme Court of the United States to this Court on its remand of this case; and I con- cur in that opinion in its entirety. | a 54 2 . Ld ‘ ; [72] Frxpine or Facts aNp Conciusi0N$ OF Law, DECEMBER 24, 1966 Be ‘It Ranenteeed, that pursuant to an opinion and consequent order from the Supreme Court of the United - States in this case vacating the original judgment of this Court, that this Court duly reconvened and heard arid con- sidered testimony and evidence, :pro and con, in this case and after sissies briefs of the parties in‘support of a their contentions, the Court now makes its further findings and conclusions by way of supplement to the findings and conclusions herein dated July 10, 1964. , - Finding of Facts The Court renews its former finding of facts, except as herein modified and amended, after hearing oral testimony . and receiving other and further evidence in this case. House Bill 546 now appears as Chapter 343, Mississippi - Laws 1964, effective April.8, 1964. This enactment simply | “proscribed picketing or mass demonstrations which -ob- ~ structed or interfered with free i ingress and egress to and - from county courthouses, or so as to obstruct ov interfere with free use of public streets, sidewalks, or other public ways-adjacent or contiguous thereto. 7 This Court finds the language of this statute to be so clear and’so unambiguous as to constitute sufficient notice to all persons of that action and conduct which is proscribed’ and made illegal by this act: It complies with every con- - stitutional requirement of the vagueness doctrine set forth [73] in the opinions in this case. All of these -plaintiffs . had notice and actual knowledge of the fact that this law _ forbade them to march together in such large numbers and so close together as to make it impossible for, business * visitors desiring to enter the county courthouse to do so. The plaintiffs. deliberately and defiantly and intentionally ‘violated this law on the occasions in suit with the view and for the purpose of testing its constitutional validity under the circumstances. ’ This picketing actually commenced on January 22, 1964, when some two hundred pickets circled the court house and continued to do so from Monday through Saturday every week. It was taxpaying time when all taxpayers ROTC eS CORON > eh hd | ee tee ™ -” nae aE: . re v% | | | ~ . | . ° . 55 had to: go aii the courthouse and pay their license insti and ad valorem taxes and other important seasonal business which had to be done at the courthouse. The sheriff, as : custodian of the courthouse, had worked with the city . police in Hattiesburg to contain the pickets and prevent 7 an incident. The courthouse fronted northerly on Main Street in Hattiesburg. The sheriff told the plaintiffs that they could picket as much or as long as they pleased at the northeast corner of the courthouse fronting on North Main and Eaton Street, in the area shown in red on the plat in evidence. But they were requested not to walk in such numbers or so close together as to block entrances . to the ground floor of the building. - The blue area on the . ‘ plat is immediately in front of the main steps to the main - * - floor of the building. This plan afforded the plaintiffs : a strip of. city sidewalk on North: Main Street and a strip eis - of sidewalk on Eaton Street for demonstration purposes in the most conspicuous area of the premises. Prior to April 10, 1964, the plaintiffs cooperated with the authorities and did not block any entrances.and were not arrested. But _ on April 10 and again on April 11, 1964 and finally on May 18, 1964, the plaintiffs in a group of thirty-five or forty | [74] people appeared in this area and walked around this space forming an almost complete circle in such a manner . as to block the entrance to the Forrest County Cooperative Extension Service on the ground floor and the entrance. to the county\ court section of the building, all as shown in yellow 6n the plat in evidence. An employee, trying to make her way from the County Cooperative Extension Service. to the County Agent’s office on the main floor of the building by way of the front. main steps, had to get in this line as it passed and march with them until they | arrived at a point opposite the front ‘steps where she left them. The waJks on ‘the inner area were approximately three feet wide as shown on the drawing. The sheriff- - and county attorney were unable to negotiate passage in the opposite direction along these walks by this circle of © humanity. without having to step off the walk.on to the _ grass. This‘is positively not a case where we have as few as ten pickets marching in this area as suggested in the dissent. That sort of condition may have existed at some time prior to the arrest, when the testimony shows that % : j PRE Ee 2 2 gts ne oy PAE SAREE PE ERIE TET RES sian aia eal ENE REAR MIE BE FEROS CII RCTS ae 2 — they sometime had as few as “three, eight, nine or ten pickets,’” but the incident in suit was provoked by thirty- — five to forty people walking as close together as they could . on these narrow walks on the courthouse lawn immediately in front of these important entrances. Even prior to the ~ incident in suit, one of the plaintiffs said that it was not unusual ,to have more than’ twenty pickets in the line. Their picketing and demonstratimg never bothered the Officials except when they marched so close together on these narrow walks as to interfere with and obstruct- the entrances to this county courthouse.: The sheriff and the ' county attorney tried to reason with the plaintiffs and ex- plained to them that they were blocking these entrances" and they were requested to widen the gap between the marchers, but such requests were ignored and violated with impunity. There is no evidence or inference in this _ record from any testimony that any of these people did © [75] not understand this law, or that they were’ being ' prosecuted with the view or for the purpose-of intimidating -or harassing them. On the contrary, this.evidence and testimony conclusively shows that these plaintiffs were being prosecuted in good faith for their willful violation of this statute because they were actually obstructing the passageways which afforded ingress .and egress to this. county. courthouse. They were engaged in’ peaceful - picketing prior to April 10, 1964 and were not. arrested, but on and after April 10, 1964; these plaintiffs were not engaged in peaceful. picketing, but were. deliberately -and- defiantly engaged in conduct which ‘is validly proscribed ay Chapter 343, Mississippi Laws 1964. ' These plaintiffs are not in ‘this court with clean hands under, the circumstances stated. The complaint in its en- tirety is without merit and should be dismissed. Conclusions of Law ‘ The Court coneludes as a matter of law that it has full jurisdiction of the parties and the subject matter, and has the full power-and authority to do all that is herein ‘done. The Court further concludes as a matter of law that House Bill 546 (appearing as’Chapter 343), Mississippi Laws 1964 is valid on its face and is valid as applied and DL LORIE LE AE ALIS BOLE ELIE IEEE ING ELIE RELI ELIE ELLE POLL EH enforced in this case. The Supreme Court of Mississippi © i oT has not ‘passed upon the Siestitiationsd validity of that act, but that is not a bar under present decisions to a determina- tion of the validity of such act, by this Court. It is note- worthy that these plaintiffs removed these prosecutions to this Court, alleging invalidity of this act on its face and as applied, and that this Court remanded these cases to the state court. The United States Court of Appeals for % '. the Fifth Circuit in Ben Hartfield, et al v. State of Missis- | sippi, et al, (5CA) 363 F.2d 869, affirmed said order of . remand. ‘This: Court makes no determination as ‘to the guilt or [76] innocence of the plaintiffs of the charges against them for their action on these occasions, but does hold that there is abundant probable cause for such prosecutions and guilt of the’ plaintiffs of such charges. Said criminal actions instituted by the defendants against the plaintiffs, were instituted and aré maintained in perfect good faith and. should not be enjoined or restrained by this Court. ~The complaint is thus without merit and should be. dismissed: with prejudice at plaintiff’s cost. An order ac- cordingly will be entered. , : Dec. 23, 1966. - Jas. P. Coleman; United States Circuit Judge. Har- old Cox, United States District Judge. "+. Henorable Richard T. Rives, United States Circuit J hones | dissenting. 58 “ii Filed December 24, 1966 Rives, Circuit Judge, Dissenting: | _. This suit was initially’ brought on. April 13, 1964, and | through appropriate amendments became a class.action by. plaintiffs against the defendants, under Rule 23. Fed.R.Civ. P. Plaintiffs sought a declaratory judgment that the Mis- sissippi Anti-Picketing statute was unconstitutional. The Mississippi statute is section 2318.5, Mississippi Code Anno- -.-tatéd 1942 (1964 sup.).? Plaintiffs also sought injunctive relief restraining the future enforcement of section 2318.5, as well as the abate- ment of prosecutions already instituted under the Bill. _ *.. Hereafter section 2318.5. . The bracketed portions were added by amendment to the statute on July 9, 1964. Sec-:. tion 2318.5 (House Bill No. 546, as amended) reads as follows : ‘1. It shall be unlawful for any person, singly or in © concert with others, to engage ‘in picketing or mass demonstrations in such a manner as to obstruct or unreasonably] interfere with free ingress or egress to and from any public premises, State property, county or municipal courthouses, city halls, office buildings, jails, or other public buildings or property owned by .. the ‘State of Mississippi or any county or municipal - government located therein or with the transaction of public business or administration of justice therein or thereon conducted or so as to obstruct or [unreason-. - ably] interfere with free use of public streets, side- walks or other public ways adjacent or contiguous ~ thereto. ‘*2. Any person guilty of violating this act shall be deemed guilty of-a misdemeanor and, upon. conviction thereof, shall be fined not more than Five Hundred » Dollars ($500.00), or imprisoned in jail not more than six (6) months, or both such fine and imprisonment. _ 3, This act shall not be construed to affect any suit or. prosecution now pending’ in any court. ‘4. This act shall take effect and be in force - from and after its —— ie OORT Se PIAS PSH tone LAE QE DVI I, MELEE OEE GF a =" R “>> ‘ — ee FS ray re 59 three-judge district Sait helenae of Circuit Judge Rives ' and District Judges Mize (now deceased) and Cox was con- vened. The suit was submitted on conflicting affidavits, no live testimony having been taken. On July 11, 1964 the complaint was dismissed by the court. Cameron ve Johnson, 244 F.Supp. 846 (S.D. Miss. _ . 1964). Judge Mize writing for the court held that plaintiffs . : . were not entitled to an injunction even if the statute were - — _- unconstitutional, because plaintiffs had ‘‘a plain, adequate and complete remedy at law’’ in the state courts which had not been ‘‘exhausted.’’ 244 F. Supp. at 851, 853. Judge Mize:found that it was ‘‘not necessary to pass on the constitutionality of this Act [section 2318.5), even _ though there can-be slight doubt as to its constitutionality”’ . and, therefore, held that ‘fit is the duty of the Federal a3 Court to-abstain and permit the plaintiffs to pursue their , State remedies.’’ 244 F.Supp. at 851, 855-856. | I dissented, stating (244 F.Supp. at 858): ‘‘In my opin- ‘ion, the’ statute is so clearly unconstitutional that this case ie hardly one ‘required * *.* to be heard and determined . - f [78] by a district court of three judges,’ ’’? and concluded | ‘that ‘‘the statute under attack is clearly unconstitutional, . and the plaintiffs are just as clearly entitled to have its enforcement enjoined.’’ 244 F.Supp. at 858. — On appeal the Supreme Court vacated the judgment and remanded the case to ‘the district court, setting two tasks: First, whether under the federal anti-injunction statute an injunction against presently pending criminal cases is barred in this case. Second, whether under the criteria of Dombrowski v. Pfister, 380 U. S. 479 (1965), an injunction should issue against present, as well as future, enforcement of the statute. Justices Black, Harlan, White and Stewart dissented. Cameron Vv. Johnson, decided June 7, 1965, 381 US. 741- ‘ Subsequent to the district ewuirt's opinion, all of the state prosecutions involved in ‘this case were removed under 28 ° _UIS.C.A. § 1443 to the federal courts. Folléwing the opin- ion of the Supreme Court in City of Greenwood v. Peacock, 384 U.S. 808 (1966), these cases were remanded to om courts. « Hartfield, et al. v. Mississippi, 363.F.2d 869 (5 1966). Judge Mize having died, Circuit Judge Coleman-was designated as the third member of the ee) panel. ERI setmeren ime Ln errr eee tga i - 60 ‘ A full sitiiigees hearing was held and the case is now ripe” for determination. : pie — I “The threshold question is whether the federal anti-injune- tion statute, 28 U. §.C.A. § 2283 (1965 ed.),? bars the grant- ing of injunctive relief in a suit brought under the civil rights statute, 42 U.S:C.A. § 1983 (1964 ed. )- 3 Section 2283 reads as follows: [79] “fA court of the United States may not grant an * injunction to stay proceedings in a State court except — - as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.’’ (Emphasis added.) The plaintiffs contend that § 2283 does not proscribe an in-- junction in the present case, because such relief is ‘‘ex- . pressly authorized hy’’ § 1983. Section 1983 reads as fol- lows: ‘‘Hvery person who, under color of any stable, ordi- nance, regulation, custem, or usage, of any State or . - Territory, subjects, or causes to be subjected, any citi- - _ zen of the United States or other person within the - jurisdiction thereof to the deprivation of any rights, oe privileges, or immunities secured by the. Constitution ~~ and laws, shall be liable to the party injured in an ac- tion at law, suit in equity, or other proper iets for redress.’’ (Emphasis added.) ~ Since § 1983’ authorizes a “‘suit in equity,’’ the argument: ' is that it also authorizes injunctive relief. The authorities on this problem are in conflict. I would hold that under the circumstances of this case, if the allegations are proved, § 1983 is an express exception to § 2283. 7 In Cooper v. Hutchinson, 184 F.2d 119 (3 Cir. 1950), the Third Circuit held that § 1983 constituted an express au- thorization for.the granting of an injunction against state ( court proceedings within the meaning of ¢ 2283.4 Unfor- ? Hereafter: § 2283. * Hereafter § 1983.__ * Followed in Tribune ates Publishing Co. v. Thomas, i 153 F. Supp. 486 (W.D. Pa. 1957). | PER NO OT ‘es sheen FS PRON IEG ma +. ND a» 4 . . t ore » . > - ‘o . ° e ° ’ . 61. asinie. the Third Cirenit merely stated its conclusion without illuminating its rationale. In Smith y. Village of Lansing, 241 F.2d 856 7 Cir.. 1957),5 and Goss v. Illinois, 312 F. 2d 257 (7 Cir. 1963), the ‘ Seventh Circuit, without considering Cooper, held that sec- tion 1983 was not an express exception to section 2283. "Neither of these expressions by the Seventh Circuit took | time to exhaustively examine the problem or propound a ~ _ [80] carefully considered rationale. The Sixth: Circuit, also without considering Cooper or explaining its reason- ing, reached a result consistent with’ the-Seventh Circuit.” Sexton v. Barry, 233 F.2d 220 (6 Cir. 1956). 3 ae The circuit court first to consider this question at length | was the Fourth Circuit, sitting en bane, Bains v. City of Danville, 337 F.2d 519 (4 Cir. 1964). In determining that section 1983 . was not an express exception to section — 2283, the Fourth Circuit reasoned that if section 1983 was read as an express exception to section 2283 there would ‘be little room left in which section 2283 might a Followed - in Progress Dev. Comav, Mitchell, 182 F. ‘Supp. 618 (N.D. Ill. 1960). See also Island Steamship, Ine. v. Glennon, 178 F. Supp. 292 (D. Mass. 1959). * Judge Mize in Chaffee v. Johrison, 229 F. Supp. 445 | (S.D. Miss. 1964) adopted the position of the Seventh Cir- cuit. In affirming Judge Mize’s disposition of the litigation | on its facts, the Fifth Circuit declined to meet the issue raised by section 1983. “ Chaffee v. J nant, 352 F.2d 514. (5 Cir. 1965) (per curiam). In Moss v. Hornig, 314 F. 2d 89 (2 Cir.’ 1963), the Second . Circuit had before it the issue of whether section 1983 au- thorized the enjoining of State court criminal proceedings. Judge Lumbard, speaking for the Court, held that it did. That case involved the question of whether Connecticut’s alleged selective enforcement of its Sunday closing laws violated fie State defendant’s equal protection of the laws. . After considering the doctrine of comity, the Second Circuit affirmed the trial court’s conclusion that the State defendant failed to submit adequate®roof to warrant*an injunction. Oddly, section 2283 was never considered or mentioned. oe have an effective field of operation. The Fourth Circuit explained its holding as follows (337 F. 2d 579 at 589) : ae Creation’ of ‘a general equity jurisdiction is in no. sense antipathetic to statutory or judicially recognized limitations. upon its exercise.. Effective’ removal of ‘a cause of action. from a state court to a federal court, is incompatible with further proceedings.in the state ‘eourt, but there is no incompatibility between a gen- erally created equity jurisdiction and’ particularized _ . Timitations which restrict a chancellor’s power or - @efine the limits of his-discretion.. - The anti-junction statute can have effective appli- cation only with respect to those matters over which the district courts have a general equity jurisdiction. © If there is no jurisdiction to grant an. injunction of any kind, there is no room for the operation of a - narrow statutory prohibition of injunctions having — a specified effect. If every grant of general equity jurisdiction created an exception to the anti-injunction statute, the statute would be meaningless.”’ In Dilworth v. Riner, 343 F. 24226 (5 Cir. 1965), Judge - Bell speaking for the Fifth Circuit recognized the cogency of the Bains rationale as a general proposition. - Dilworth _- held that. section 203(a)-(c) of the 1964 Civil Rights - Act, 42 U.S.C.A. § 200a-3(a), was an express exception to section 2283. Section 203 specifically grants the power to issue ‘‘a permanent or temporary injunction, restraining order, or other order,’’? where ‘certain rights have been [81] invaded. This specific grant is in stark contrast to the “broad general subject matter encompassed i in section 1983. However, to be an express exception a statute need not be as clear a.grant as. section 203 of the 1964 Civil Rights Act, nor need a statute even mention the term injunction. Porter v. Dicken, 328 U.S. 252 (1946) ; Amalgamated Cloth- ing Workers v. Richmond, 348 U.S. 511 (1955); Dilworth y..Rimer, 343 F.2d 226 (5 Cir. 1965) (dictum); Beal v. Waltz, 309 F.2d.721 (5 Cir. 1962). See also Toucey Vv. New York Life Insurance Co., 314 U.S. 118 (1941); Jack. sonville Blow Pipe Co. v. Reconstruction Finance Corp., . 244 F.2d 394 a AS, Cir. 1957); T. Smith & Sem, Inc. v. we sreewagy vg ORR DIR ee NEN FRO: GRE See Rate tars SAN Crag pene + . ’ t . = e eal ~ Giams, 275 F.2d 397 (5 Cir. 1960); Brown v. Wright, 137 F.2d 484 (4 Cir. 1943). The principles rationally extro- - polated from.tlie cases creating express exceptions to the prohibition of section 2283 derive content from the concrete ° - situations which gave rise to them. Where a’ specific, limited and ‘clearly delineated substantive right has been conferred by Congress the courts have: found an express ~ exception to section 2283. The express exception is the . necessary concomitant of the need to -vindicate: federally created rights and is entirely consistent with the history of section 2283. ; : Section 2283 and -its predecessors date back to 1793 _ when Congress enacted an unqualified prohibition on injunc- tions: ‘** * * nor shall a writ of injunction’ be granted~. [by any. federal court] to stay proceedings in any court. of a state *:* *.”?® Section 5 of the Act of March 2, 1793;: 1 Stat. 335: The scope of this original statute and its successors has been restricted by judicial constrvetion; interestingly, ‘whenever Congress has acted it has always -acted to further restrict the scope of the anti-injunction’ [82] statute. As the Third Circuit said in In re Standard Gas & Electric Co., 139 F.2d 149 (3 Cir. 1943) at 152, ‘The. purpose of. its [2283’s] prohibition was ‘to prevent federal courts, when exercising jurisdiction coordinate with state courts, from drawing to themselves the right to determine adverse claims.”” | Section 2283 is aimed primarily at allowing state courts to proceed to the determination of issues involving state R _ law which might be drawn to’ the federal courts. - The RARER Sores Ce ase SEER REE IM Seen ener ae allegations in the instant case show that this Court is asked to vindicate primarily federal rights protected by a specific federal statute. The charge is that section * The history of section 2283 is discussed at length by the Supreme Court in Toucey v. New York Life Ynsurance Co., 314 U.S. 118 (1941). See also Amalgamated Clothing Workers of America v. Richmond Brothers, 348 U.S. 511 (1955) ; Jacksonville Blow Pipe Co. v. Reconstruction Fi- nance Corp., 244 F. 2d 394 (5 Cir. 1957); T. Smith & Son,. Ine. v. Williams, 275 F. 2d 397 (5 Cir. 1960). wi i is Dial . Se ~ ser ® 2318.5.as applied here is a subterfuge for denying plaintiffs - their federally protected rights as they relate to voting. _ The activity engaged in “by plaintiffs today has specific . . federal protection. 42 U.S.C.A. §1973i(b) states:® ‘‘(b) No person, whether acting under color of law ‘ or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person ‘for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, © or coerce any person for. urging or aiding any person to vote. or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 1973a(a), 1973d, _— 1973g, * 1973h, or —7 of this title.’’ The allegation is that the purpose of section 2318.5 and .. these arrests and prosecutions under that section is to harass and punish the plaintiffs for their participation in the civil rights movement and to deter them, and others similarly situated, from exercising rights of free speech and assembly guaranteed by the Federal Constitution and the right to urge or aid others. to attempt to register and _ vote guaranteed by federal statute. If this allegation is ~ - 9A similar prohibition i is found in 42 U.S.C.A. § 1971(b). -. United States v. Bruce, 353 F.2d 474 (5 Cir. 1965). Unlike 42 U.S.C.A. § 1971(b), section 1973i(b) does not require that the prohibited acts be racially motivated; nor does section — 1973i(b) require proof of a ‘‘purpose’”’ to interfere as does: section 1971(b). ‘‘[N]o subjective purpose or intent need be shown.’’ House Rep. No. 439 to acconipany H.R. 6400, June 1, 1965. 10 U.S. Code Cong. & Adm. News 2532.. While section 1973i(b) had not been. enacted when this suit was first instituted, this is an equity suit and the law must be applied. as it now stands. If further prosecution under section 2318.5 would be inconsistent with section 1973i(b), it must be abated. Section 1971(b) which prohibits the same _ behavior was enacted before section 2318.5. If the allega- tions alleged here are true, further prosecution under sec- tion 2318.5 would be inconsistent with section - 1971 (b). United States v. — supra. one PAR RAE ER PE eg AE QTE * Bt ee 6 on ei . - . . , = " _ 65 true, plaintiffs are not asking the federal courts to enjoin ~ the proper application of state law in state courts, but are merely asking that federal rights be vindicated eo federal courts which are primarily responsible for pro- [83] tecting those rights..° Under these circumstances, sec- tion 1983 is and should be an express exception to section 2283. Cox v. Louisiana (II), 348 F.2d 750 (5 Cir. 1965). ™ _ In the second Coz case, the question was whether, under conditions parallel to those alleged here, the litigation - could be removed from a state to a federal court. Judge Wisdom, speaking for the Court, addressed himself to the question of whether an injunction against the prose- cution could issue. He stated (348 F.2d 750 at 752): _ “A civil complaint asserting sueh an-abuse ofthe prosecutorial function would state a claim under the Civil Rights Act, 42 U.S.C..§ 1983 and justify injune- tive relief. - Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. This is not a Douglas v. City of Jeannette, Stefanelli, or Cleary v. Bolger situation. Here the State, through the Parish District _ Attorney, under the guise of protecting the administra- tion of justice, is dittaneine the Nation on.a national policy expressed in: the Constitution, carried out by Congress, and validated by the Supreme Court: ~ “The general principle, basic to American Federal- _ ism, that United States courts usually should refrain from interfering with state courts’ enforcing’ local laws is unassailable. But. the sharp edge of the Supremacy Clause cuts across all-such generalizations. - McNeese v. Board of Education, 373 U.S. 668 ( 1963) at 671. ° ‘ “To avoid confusion, the first case, Cox v. Louisiana, 379 U.S. 559 (1965), in which the’ Supreme Court reversed a ° conviction litigated through the State courts, will be referred . to as Cox (I). The second case, Cox v. Louisiana, 348 F’. 2d 750 (5 Cir. 1965), in which the Fifth Circuit held that - attempts to prosecute Reverend Cox subsequent to Cox (I) could be removed to federal court, will be referred to as Cox (II). , ee: When a State, under the pretext of preserving law and order uses local laws, valid on their face to harass and punish citizens for the exercise of their. consti- . tutional rights or federally protected statutory rights, the general principle must yield to the en the federal system is imperiled.’’ | Accord, Hillegas v. Sams, 349 F.2d 859 (5 Cir. 1965) (separate opinion of Judge Brown). In McNeese-v. Board of Education, 373-U:S. 668 Bis at 671, 672, the wr rene _ Court said: ‘¢That .is the statute [1983] that was ieatioui in -° ~ Monroe v. Pape, supra [365 U.S. 167, 81 S.Ct. 473, 5 L. Ed. 2d 492]; and we reviewed its history at length in that case. 365 U.S. at 171, et seq. [81 S. Ct., at 475, et seq.]. The purposes were severalfold—to . override certain kinds of state laws, to provide a remedy where state law was inadequate, ‘to provide a federal remedy where the state remedy, though - adequate in theory, was not available in practice’ (id., - (174 81 S. Ct; 477]), and to provide a remedy in the federal courts supplementary to any remedy any State might have. Id. 180-183 [81 8. Ct. 480-482]. ‘‘We. would defeat those purposes if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim: in a state court. The First Congress created federal courts’ as the chief—though not always the exclusive—tri- . bunals for enforcement of federal rights. * * *’’ _ [84] The great danger in federal intervention in state criminal litigation is that it will cause that litigation to be conducted piecemeal. Thus, federal courts have declined — to intervene to suppress alleged illegally seized evidence The defendant must await federal review through certiorari or by habeas corpus. In the instant case, if the plaintiffs * succeed, then the litigation, present and future, will be brought to an end. As Judge Wisdom said in.the Cox (II) case, 348 F. 2d 750-755: ‘* [T]here i is no federal invasion of states’ rights. Instead, there is rightful interposition under the Supremacy Clause of the or to” — the 7 OER aE SITE ee ee ee ee Re ee. ee Ee ales . ~s ns a6 aes 67 individual citizen against state invasion of federal rights.’’** In City of Greenwood v. Peacock, 384 U.S. 808 (1966), the Supreme Court held that prosecutions such as those here involved are not removable under 28 U.S.C.A. § 1443. In so holding, the Supreme Court recognized that ‘ under ‘‘extraordinary circumstances,’’ where the state prosecutions are themselves used to intimidate. persons in the exercise of their constitutional and federal statutory . rights, federal injunctions are available to protect these precious rights. City of Greenwood v. Peacock, 384 U.S. - 808 (1966), at 829. While the Bains case may be correct as a aveseed principle, its reasoning cannot be logically applied to cases involving specific rights clearly and specifically pro- . tected under a federal statute. If the allegations. made-— here are true, the officials of the State of Mississippi by bringing or further continuing the prosecutions here involved have committed a federal crime.’ Would it not be absurd to say that the. public officials here involved may be fined $5,000 and imprisoned for 5 years by. a federal court,"* yet that same federal came may not enjoin their 2 Tn TR v. Board of Bisention, 373 U.S. 668 (1963) at 674, n. 6, the Supreme Court said: **As well stated by Judge Murrah in Stieteton v. . Mitchell, 60 F. Supp. 51, 55, appeal dismissed pursuant - to stipulation, 326 U.S. 690: ‘We yet like to believe that wherever the Federal courts sit, human rights © under the Federal Constitution are always a proper subject for adjudication, and that we have not the _ right to decline the exercise of that jurisdiction simply because the rights asserted may be igen mania in some other forum.’ ”’ a - 1842 U.S.C.A. §1973j(a) and (c); ef. United States v. Guest, 383 U.S. 745 (1966). (The provisions of 18 U.S.C.A. § 241 impose punishments of up to 10 years in prison for those who conspire to deprive any citizen of the ‘‘free exer- ' elise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States’’ by -caus- ing the arrest of Negroes by means of false reports that such ive vail committed criminal acts. Srey: eter area egos Sh ea ERT LF TSO TE TT OOS RR - negra 68 commission of that crime and thus prevent their effecting : [84a] the very injury the statute is designed to prevent? — Moreover, section 2283 is not a jurisdictional statute, and in spitérof its absolute language does not prevent a federal court from. issuing an injunction against a state court proceeding where conditions warrant such relief. © ’ Section 2283 is a statutory adoption of the ‘doctrine of comity. Judge Wisdom, writing. for. the Fifth’. Circuit in Southern California Petroleum Corp. v. vk 273 F.2d 715 (5 Cir. _1960) at 718-19, said: “Section 2283 is essentially a rule of comity, and the demand here that a federal court interfere with state court proceedings is directed to the discretion.of the federal court. This discretion should be exercised in the light of the historical reluctance of federal courts to interfere with state — proceedings”’ as : ~ The Fourth Circuit in Baines v. City of Danville, supra, 337 F. 2d. at 593, was peqpesipes this distinction when _ it said: “ «Since the ‘statute was fathered by the estnaliiine of comity, it has been held that the statute should be . read in the light of those principles and, though ~- absolute in its terms, is inapplicable in. extraordinary cases in which an injunction against state court pro- ceedings is the only means of avoiding grave and irreparable injury. In our view, the congressional command ought to be ignored only in the face of the most compelling reasons, but we have certainly been | told by the Supreme Court that in those circumstances it may be disregarded, for its. parentage discloses that it was not intended to be as‘absolute as it sounds.’’ 14 Section 2823 is sometimes referred to as denying ‘‘jur- isdiction to a federal court to enjoin proceedings in a State court except in unusual circumstances.’’ Williams v. Pueri- . foy, 316 F. 2d 774 (5 Cir. 1963) (per curiam) at 775. The doctrine is clearly one of comity and the principles of comity determine when ‘‘unusual circumstances’’ exist. ae Accord: Hulett v. a, 250 F. bician: 208 (M.D. Ala. 1966) (three-judge district court); Zellner v. Lingo, 218 — “a ‘F. Supp. 513 (M.D. Ala: 1963), aff’d, 334 F:2d 620 (5 Cir. 1964) ; Feldman v. Pennroad Corn:, 60 F. Supp. 716 (D. Del. 1945), aff’d, 155 F.2d-733 (3 Cir. 1946), cert. den., 329 U.S. - 08 (1947). -See also cases collected Baines v. City of ‘Danville, 337 F. 2d 579 (4 Cir. 1964) at 591, n.10. - - ‘ The fact that section 2283 is only a comity statute and does not prevent the issuance of an injunction was recog- nized’ by Judge ‘Mize in this case. Cameron ‘v. Johnson, 244 F.Supp. 846 (S.D. Miss. 1964 at 851. Therefore, we [85] turn to the only real’issue in this case, do the facts as proved require the granting of the relief requested? II The demonstrations: which resulted in the arrests under section 2318.5 had their origin during January of 1964. For several days prior to January 22 the Council: of Fed: erated Organizations * and others’ distributed leaflets. These leaflets declared that January 22 would be ‘‘freedom day.’’? A rally was to be held which included picketing the Forrest County Court House * in a protest against discrimination in voter registration. | On January 22 seve *«! hundred persons, Negroes and whites, appeared at the Court House, as did. reporters’ - from the incal and national press. The County sheriff — designated a ‘*march route’? which the demonstrators followed in picketing the Court House. © Subsequent to January 22 the picketing of the Court House continued. The area designated by the’ Sheriff ‘consisted of three sides, the east, north and west side 5 Hereafter COFO. . . 1 Reverend Cameron was director of: the Hattiesburg Ministers’ Project for the National Council of Churches. of Christ. 7 Hereafter Court House. 18 Trial record (hereafter Tr.) 271, 220, 230. at Tr. 220-21, 230, 271. RTs twat aaa oo ne ae nner BERN ant ART RNIN a 70 of the ‘court house.’’ ‘The demonstrators during this early. period sang, chanted, prayed and preached.” — “To facilitate access to the Court House, the Sheriff ~ . blocked off-a small area to the right of the main entrance to the Court House where the picketers were allowed to continue. their activities: The axis of this area of march was an irregularly shaped grassy: plot with 4a flag pole on’ it.** It is difficult to verbalize the scene, so a scale drawing is reproduced here for convenience : : Tr, 221, 230-31, 271- 72. 21Tr. 77, 178, 222, 231, 272. a. REY LLP OLIN * ey ea 5 ae . “> ome te IIL ee ae oe . ae e ! ‘bt j . [ j j “wt | | : oe \ 2Ueunuoy | ed . . | S 5 | ** , + ° S Sneees sem cette Ri coreg an agfhp eee aati Pak 1 ~ oe : x > s, . . . i . * ’ ? ; . ~ ‘ . As . . ms . . . . ° NY oe > . . 2 ’ . - ‘ , ° . : . 2 ° . « : . . ‘ ‘ - ‘ a . * ‘ . x > * ‘ iS . “oF coe x . : . ‘ . - ° . “- ” - . . * Y . . . . ~ . _~ nS . a - ‘ ia = : ‘ . . ‘ iJ . SURES OR tes he ae peene . " . . . 4 « ‘ a, rode att ran 13 [87] Picketing continued into April of 1964. All agree that. from April 1 until April 11 pickets were present every day except Sundays. From April until April 9 the number varied from ’7 to 20.” ‘Unlike the earlier mass picketing where hundreds were present, the picketing in April was entirely orderly and quiet. The pickets did not sing, chant, pray or preach. ‘‘The only noise’’ they ‘‘made was an occasional comment to one another in normal conversation.’? They in no way made any noise that would disturb the transaetion of business within the Court House. * The pickets marched steadily but slowly. They made it a point to be courteous to persons desiring to pass them and never blocked anyone from passing them. ** This was the situation that persisted until April 9. On April 9 a small group was picketing the Court ouse. As- was their usual practice, they started ‘‘to disband the picket’’ line around four o’clock. Several police officers arrived and ‘‘began to break down the wooden - barriers’? which had previously delineated their line of march. Sheriff Gray accompanied by. Mr. Dukes, the County Prosecuting Attorney, and Deputy oenianac snenentiet the group asking for their attention. A or. Of section 2318.5, which had just been passed by the MiSsissippi legislature and had just been réceived in Hattiesburg, -was read to them. The Sheriff then gave them five minutes, in which to disperse, which they did.* On the morning of April 10, they assembled ‘shortly | after 9 A.M. at the COFO headquarters. They lined up approximately. 10 feet apart and walked = the Court House. ** . - [88] The pickets arrived ‘at the corner across from. the Court House at about 10 A.M. where they found a normal. flow of traffic. They ‘‘waited to cross.the street until the. policeman had halted traffic as he did for all pedestrians.’’ 2 Tr, 85, 72, 122, 224, 235, 273. Connor testified that at times it reached as many'as 38 or 39. Tr. 232. — * Tr. 39-40, 107. — : ST 1963 Tr. 34, 77, 109-110, 273-77. Tr, 83-84.. 1h They ‘‘crossed with other pedestrians and then began to march in the area previously designated for picketing in a very orderly fashion.’’ Because of the previous warning _ they were ‘‘more frightened”? than before and ‘‘for that YTeason’”’ they ‘were more orderly ‘and — than pre- viously. 77 This was the lataeat number of pickets that had par- ticipated in the marching that week. They numbered about 40.** After a short time, Sheriff Gray stopped the pickets. The testimony here is in dispute. The defend- ants’ witnesses : testified that Sheriff Gray warned the pickets that they were violating section 2318.5, and when they failed to disperse he placed them under arrest. Plaintiffs’ witnesses testified that they were placed under arrest without warning or that, in any event, if there ‘was a warning they did not hear it. °° This large group, was then placed in jail for obstructing free ingress to or- egress from ‘the Court House.** At the time of the arrest the area immediately adjacent top the picketing area was.eongested with spectators. There were 20 or 25 people standing on the main steps of the Court House and a ‘‘tight knot of people’’ were ‘‘ blocking the sidewalk.’’ None of these persons were arrested or - asked to move on. Since-they were neither ‘‘picketing”’ nor engaging in ‘‘mass Gemonstrations,” they were not ‘ subject to section 2318.5.*? . On the afternoon of April 10, Mary Williams and nine other persons were arrested for violating section 2318.5 — - Tr, 37, 111-12, 147, 171, 279. 28 Estimates of how-many picketers participated in the April 10: morning demonstration ranged from. 28 to 43. Tr. 36, 51, 90, 182, 201, 279, 320,-334. At no time were they warned that a large group could not picket the Court House. _ Tr. 50. | ‘ 2° Tr, 276-77, 282, 335. piverend Brown also thought that Sheriff Gray might have given them one minute to disperse before arresting them. Tr. 56. * Tr. .39,' 113-14, 143-45, 172, 226. 81 No one made any attempt to ™ down or resist arrest. . Tr.-39. Tr, 37- 38, 78- 80, 83, Ani, 129, 130.31, 136. . te ee ee eee ee Se eta Cnt a er ec ee ’ [89] by peacefully ind quietly. siihiliass the area around the flag pole. On April 11 nine more pickets were arrested. Between April 11 and May 17 spasmodic picketing con- tinued without incident. On May 18.a' group of nine dem- -> onstrators began picketing in the area around the flag | pole. They were ordered to cease obstructing ingress to. and egress from the Court House. Two of the pickets ‘ then left and the other seven weré arrested. **. After May 18 picketing was not resumed. * The defendants contend that section 2318.5 is consti- tutional on its face and that it was properly applied SO as to protect the normal transaction of business in the Court House. The plaintiffs contend that section 2318.5 is uncon- stitutional on its face and was clearly unconstitutionally applied. | I would conclude that an inspection of the record in this case clearly shows that section 2318.5 was unconsti- tutionally applied. Moreover, the application of the statute in this ‘case illustrates how vague the statute really is and compels the conclusion that it is unconstitutional on its face. The main, thrust of the defendants’ argument is that the pickets obstructed the entrance to the County Court Room, designated as ‘‘B”’ on the drawing, and the entrance to the Home Demonstration Office, designated as ‘‘A’’ on the drawing. I will treat the Home Demonstration Office first. The Home Demonstration Office is a: small office with only one entrance. It has no inside entrance to the interior of the Court House. Mrs. Pearl Burkett is the Home Demonstration Agent. She leaves her. office and goes to . . 88 Jr, 153, 154-55, 158-159, 199, 227; 301, 305. See affidavit of Sheriff Gray,.p. 1. There appears to be some confusion between the arrests made on May 18 and those made on April 11. Sheriff Gray’s affidavit shows 7 persons were ’ arrested on May 18 after 2 persons left rather than be ~ arrested. Mr. Wells indicated that similar events tran- _ spired on April 11 leading to the arrest of 7 persons. Tr. - 199. ) "Tr, 204-05, 211. See. also Tr. 192. vs anablchdias Paoabidendeadaptomal adie diein nidiiaaea sie eaten = . -* County Agent’s office about four or five times each, day. * To get there, she leaves hér office and proceeds along the _{90] walk.to the main steps of the Court House and pro- _ ceeds up those steps to the second floor. The sidewalk at one point narrows to as little as 3.8 feet. On the morning .of April 10 during the picketing, Mrs. Burkett found it necessary to go to the County Agent’s: Office. She testified (Tr. 317) : uy started the regular route and they were so close together that I had to wait for just a moment to get in line and I fell in line with them and started weaving back and forth until I reached the - front ‘steps and then dropped out of the line.’’ Her testi- mony is, of course, the only real testimony of obstruction contained anywhere in the record.** While the walkway is wide enough at most points. for her to walk. past the a pickets, for about six feet it is only 3.8 feet wide. To be comfortable one would most likely have to walk single file in line, one person behind another, at that point. Thus, she had to weave back and forth by falling ‘‘in line with them” for a few steps. They were not discourteous; she was not. bumped or molested; they were peaceful and orderly. * Whatever “obstruct”? may mean, here, clearly Mrs. Bur- kett was not blocked or prevented ‘from making her sojourn to the County Agent’s Office. Nor is there a single shred of evidence that the pickets were unwilling to let persons pass at anytime before or during the demonstration. In the past the pickets had seen persons come out of the main steps to the Court House and pass them and ~™ the Home Demonstration Office on their way to the parking area behind the Court House.** The pickets were never told that they blocked the Home Demonstration Office door. One witness recalled Mrs. Burkett passing them on the way into her. office on several mornings. She would 35 Tr, 315. 36 At the time of the arrests no one in the vicinity sought to enter the Court House and no one was actually obstructed from entering it on business. Tr. 39. See also:Tr. 107. 37 Hxactly how far apart the pickets were is not clear. One witness thought it was 3 to 4 feet. Tr. 125. Another testified it was 6 to 10 feet. Tr. 84, 91. ° $8 Tr. 32-33, 74. 17 [91] greet them ‘‘cordially.’’ * Another picket recalled: at least three persons ‘‘who had easy. access to that door — [‘‘A’’] who walked by me on the way to business in that ~ particular office.’ 4° These earlier instances are of contin- uing importance since Mr. Dukes testified that had the law been in effect, the earlier picketing would. have violated it. 41 The problem of blockhike the datveines to the County Court Room is even clearer. Reverend Brown, like the other witnesses for the plaintiffs, testified ‘that the entrance _ ‘to the County Court Room was never blocked.‘ The - defense presents an appealing picture as to the blocking of entrance ‘‘B’’. Mr. Selby Bowling, President of-the Forrest County Board of Supervisors, was attracted by ‘curiosity as much as anything else’’ to the steps of the Court House on the morning of April 10th, where he watched the arrest of the demonstrators who he described as a ‘‘nuisance.’’** The reason entrance ‘‘B’’ must be kept . open is, according to Mr. Bowling, that ‘‘there are a lot of elderly people who use that and catch the elevator to go to the second floor.’’ This use. of the ground floor elevator, in his ‘‘opinion,’’ was prevented by the pickets. * _ Of course, the Court House is symmetrical and there is an entrance to the County Court Rooni, identical to the one marked ‘‘B’’, on the opposite side of the Court House steps, which entrance is marked ‘‘R”’ in the drawing, p. 11, supra. This éntrance was in no way affected-by the picket- ing: Surely. we cannot silence a peaceful group in the ‘ orderly exercise of their freedom of speech just because they pass in front of one of several entrances to a court _ house. * Here, entrance ‘‘R’’ was available, or the main’ mat. ee , “Tr, 108, 123. i Dy, 292-93. ‘42 Tr, 19-20, 80, 32, 126- 127; see in addition, Tr. 14, 107-08, 123, ° | 481, 327. _ “Tr, 330, 331. ‘5 As Reverend Brown put it, ‘‘we couldn a possibly be blocking because of all the entrances to ‘this ss ay Tr. 43. 2d TYRES nea + AY Oa RI 5 SP RELY NII ci le dane eee entrance; or even the back entrance from the parking lot. [92] The only evidence in this record of this blockage of entrance is the testimony of Mr. Dukes, who testified that, prior to the arrests on the morning cf April 10, he ' tested the obstruction by attempting to walk against the ; °° eurrent of the line of pickets. He said he could not.* I do not find this testimony sufficient to overcome the weight of all the other testimony contained in this record. | The danger occasioned by section 2318.5 is made even © more evident when we examine the further arrests made on the afternoon of April 10, on April 11, arid on May 18, not one of which groups exceeded 10 persons.*’ These pickets were arrested because they. walked so closely - together that no one could pass between them, thus they obstructed ingress to and egress from the Court House. * Picture 10 persons walking very closely together, which would oceupy’a space of about 16 to 20 feet. “Now picture d this group at the point where I- have marked ‘‘T’’ on the drawing, just above and to the left of the flag’ pole. If they were there, the entire remainder of their route would be left open both in front and in back. Can these _ people logically be arrested for obstructing points ‘‘B”’ and - “A? when the majority of their time in walking- about the flag pole will leave the walkways totally unobstructed? I think not. * _. To illustrate, take the group arrested on the afternoon of April 10. Mrs. Mary Williams went to the Court House with a group of nine other persons, ranging in age up to 18 or 21. The 10 of them then proceeded to picket around the flag pole. Mrs. Williams testified (Tr. 157) : **Q. Did anybody try. to go in or out of the court house while you all were there? ‘0 =e: 981, . “See n. 34, supra, and accompanying text. 48'Tr, 284-85; see affidavit of Sheriff ay. ‘ 4° The distance from point ‘‘T”’ to the corner is well over - 48 feet, and the distance from the corner to where the pickets. ‘would again enter the walkway is over 16 feet. The . idea that while walking this 60 some odd:feet these 10 _ pickets blocked entrances ‘‘A”’ and ‘‘B”’ is totally.absurd. — —" a nae ‘‘A. No, they didn’t, wasn’t no one there to enter the court house, we were just on the line picketing.’’ © [93] They were arrested for ilstenainss ingress to and egress from the Court House under section 2318.5. With these facts in mind, I think the law on this subject - clearly compels the conélusion that section 2318.5 and its application in this case are unconstitutional. This case is strikingly similar to Cox v. Louisiana (I), 379 U.S. 536 (1965), where the Supreme Court was called upon to con- sider. the constitutionality of a statute forbidding the - obstructing of public passages. ** ‘There was no doubt in Cox (I) that the sidewalk across from the Court House ‘‘was obstructed, and thus, as so construed, appellant violated the statute. »? 379 U. ‘St 553. The Court rejected the idea ‘‘that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picket- ing on streets and highways, as these amendments afford to those who communicate Meas by. pure speech.’’ 379 U. S. at oS. N onetheless, the statute in question was held Tke operative fact that sail the statute unconstitu- tiona] was the overly-broad reach that allowed city officials to choose which demonstrations would be permitted. 379 US. at 557. Cf. Ashton v. Kentucky, 384 U. S. 195 (1966), 5° See ale Tr. 156. a “Obstructing Public 5 enn | “‘No person: shall wilfully obstruct the free, convenient “and normal use of any public sidewalk, street, highway, bridge; alley, road, or other passageway, or the entrance, corridor or passage of any public building, structure, water- craft or ferry, by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein. 3 ‘‘Providing however nothing herein contained shall apply - to a bona fide legitimate labor organization or to any of its legal activities such as picketing, ldwful assembly or concerted activity in the interest of its members for the purpose of accomplishing or securing more favorable wage standards, hours of employment and working conditions. 4 La.Rev.Stat. § 14:100.1 (Cum. Supp. 1962). a nae te eee ate sae heat clin meteet ak abide \ errs eseieat ai 6 ere * —— idee ie emia 2) ee ee ee. =T~ And there is no evidence that they did: interfere with such administration. -. streets open and available for movement. -A group of dem- onstrators could not insist upon the right .to’cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree te. listen to their exhortations, ’’ 6 The federal statute, 18 U. s. C.A. § 1507, ‘ead as, fol: - lows: ; | “*¢§ 1507. Picketing or parading. ‘‘Whoever, with the intent of interfering with, obstruct- ing, or impeding the administration: of justice, or with the . intent .of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in ° or near a building housing a court of the United States, - or in or near.a building or residence occupied or used ‘by such judge, juror, witness, or court officer, or with such in- ~ ‘tent uses any sound-truck or similar -device or resorts to any other demonstration. in or near any such building or residence; shall be fined not more than $5,000 or imprisoned not more than one year, .or both. ‘*Nothing i in this sectidn shall interfere with or prevent the exeroige by any court, of the United States of its power o punish for contempt.’? ~~ -8t When. the picketers arrived at the Court Houte: on the rning of April.10, they were ‘‘apprehensive” pep ries * co y enrtahened arrest the day ald but they ‘te a Ye -d s PONE AE IIE NOMS aT yee mp Nrwn WP og cee ye Seep e . ere ere ” _ .The federal Act applies to. obstructing’ justice, not ob- structing ‘*free ingress or egress to and from any public ‘premises.’’ The use of a loud sound-truck across the street’ from‘a federal courthouse could violate the federal statute, but that alone could not violate the Mississippi statute. ‘The statutes are aimed at two distinct types of behavior. Most important, the federal statute with its specific intent pro- vision restricted to ¢ertain types of improper influence is - far more narrow than section 2318.5. For these reasons, I do not believe that the defendants can sustaiti section 2318.5 by comparing it to the federal picketing statute. In Shuttlesworth v. Birmingham, 382 U.S. 87 (1965), the question of when an ordinance is overly broad was again before the Supreme Court. The Court there said (382 US. at 90-91): “On its face, the end relevant paragraph ¢ of $1142 sets.out two separate and disjunctive offenses. The paragraph makes it an offense to ‘so stand, loiter or walk upon any street or sidewalk . .:. as to obstruct free passage over, on or along coli street or side- walk.’ The paragraph makes it ‘also ... . unlawful for any ee to stand. or loiter upon any street or sidewalk . . . after having been requested by any police _ Officer to move on.’ (Emphasis added.) The first count of the complaint .in this case, tracking the ordinance, charged these two separate offenses in the alternative. ‘‘Literally read, therefore, the second part of this ordinance says that a person can stand on a public sidewalk in Birmingham only at the whim of any police _ Officer of that city. The constitutional vice of so broad with. the fecling that they were not disobeying this law [section 2318,5].’? Tr. 37. They knew if they ‘‘blocked”’ free ingress to the Court House they would violate section 2318.5, but they did, not see how they could **pnossibly be | blocking because of all the entrances to this building.’’ Tr. 43, 46. Reverend Vaux when asked if he specifically intended to violate the law by returning to picket on April 10, after being advised of its content and after the clergy | ‘ ‘had discussed it amorig themselves, said: ‘‘I would want » to say we did not discuss’ the validity of the law. We dis- -eussed our right, constitutional right, to picket.’’ Tr. 89. a provision needs no demonstration... It ‘does not pro- vide for government by clearly defined laws, but rather . for government by the moment-to-moment opinions of a policeman on his beat.’ Coax v. Louisiana, 379 U.S. _ 536, 579 (separate opinion of Mr. Justice Black). In- an stinet with its ever-present potential for arbitrarily suppressing First Amendment liberties, that kind. of. law bears the hallmark of a police state.’* “or. Ashtonv. Kentucky, 384 U.S. 195 (1966). The same may be said of the statute here’involved. As demonstrated ‘by the arrests made by police officers between April 10 and | May 18 ‘‘a person can * * * [picket the County -Court House] only at the whim of any police officer of: that city.’’ [98] It is no answer that the police+ discriminated against these pickets only occasionally, for. the constitu- | , tional vice is that the law allows them to discriminate at all. The situation here. may also be’ compared to the recent Supreme Court opinion in Brown v. Louisiana, 383: U.S. 131. yo! (1966).. ‘In that case, five Negroes were arrested. | for sitting. in a library reading room. In describing their conduct, the Supreme Court explained, (383 U.S. at 139): ‘Petitioners’ deportment while in the library was un- exceptionable. They were neither loud, boisterous, ob- streperous, indecorous nor impolite. There is no.claim that, apart from the continu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0154%3A1. Public record. Not legal advice.