The opinion of the court was delivered by: JOHNSON
This cause is now submitted upon the motion of the plaintiff, United States, seeking to have this Court grant a preliminary injunction, enjoining the defendants U.S. Klans, Knights of the Ku Klux Klan, Inc., a corporation; Alabama Knights, Knights of the Ku Klux Klan, Inc., a corporation; Federated Ku Klux Klan, Inc., an unincorporated association represented by Lester C. Hawkins; Alvin Horn, Robert M. Shelton, Lester C. Hawkins, Thurman E. Ouzts, and Claude V. Henley from interfering with the free flow of interstate commerce within the State of Alabama. This Court previously on May 20, 1961, issued a temporary restraining order enjoining and restraining U.S. Klans, Knights of the Ku Klux Klan, Inc., Alabama Knights, Knights of the Ku Klux Klan, Inc., Federated Ku Klux Klan, Inc., Alvin Horn, Robert Shelton, Lester C. Hawkins, and Thurman E. Ouzts, their officers, members, agents, employees, and all persons acting in concert with them, from conspiring to interfere with the travel of passengers in interstate commerce through and in Alabama; and from committing acts of violence upon, or threatening, assaulting, intimidating or harassing passengers in interstate commerce in and through Alabama; and otherwise obstructing, impeding or interfering with the free movement of interstate commerce in and through the State of Alabama.
The submission of this matter was after notice to each of these defendants, and the submission is upon the evidence of several witnesses, both in person and by affidavit, and the several exhibits to the testimony of those witnesses. Having heard and understood the evidence, this Court now proceeds to make the appropriate findings of fact and conclusions of law.
This Court has jurisdiction of this matter and has jurisdiction over each of the above-named parties under the authority of Title 28, 1345 and 1392(a), United States Code Annotated, this latter section providing, 'Any civil action, not of a local nature, against defendants residing in different districts in the same State, may be brought in any of such districts.' The several motions filed by the above-named defendants, seeking to have this action dismissed on the grounds that the Court does not have jurisdiction and that service of process was outside the territorial limits of this district, are due to be overruled and denied. A formal order of this Court will be entered accordingly.
From the evidence in this case, this Court specifically finds that the U.S. Klans, Knights of the Ku Klux Klan, Inc., is a corporation chartered under the laws of the State of Georgia, but doing business in the State of Alabama and within this district; that Alvin Horn is the chief officer and administrative head of that organization; that the Alabama Knights, Knights of the Ku Klux Klan, Inc., is a corporation chartered under the laws of Alabama and is doing business within the State of Alabama and within this district; that Robert M. Shelton is the chief officer and administrative head of that organization. This Court further finds that Lester B. Sullivan is Commissioner of Public Affairs of the City of Montgomery and, as such, is responsible for the general supervision and administration of the Montgomery Police Department and for maintaining the peace and enforcing the law within the City of Montgomery; that Goodwin J. Ruppenthal is the Chief of Police of the City of Montgomery and, as such, is responsible, under the direction of Sullivan, for the operation of the Montgomery Police Department and for preserving peace and enforcing the law within the City of Montgomery.
This Court further finds that in April of 1961 and continuing until the present time an organization known as the Congress of Racial Equality, usually referred to as CORE, together with the Southern Christian Leadership Conference, the Students Nashville Non-Violent Movement of Fisk University, Nashville, Tennessee; Martin Luther King, Jr., of Montgomery, Alabama and Atlanta, Georgia; Ralph D. Abernathy of Montgomery, Alabama; Wyatt Walker, address unknown; F. L. Shuttlesworth of Birmingham, Alabama; and Solomon S. Seay, Sr., of Montgomery, Alabama, acting in concert with other individuals and organizations, formulated plans for sending groups of individuals of both the white and Negro races by interstate motor carrier through the State of Alabama, including this district. The announced purpose of said trips was for determining whether facilities of interstate commerce, including motor bus and terminal facilities in Anniston, Birmingham and Montgomery, Alabama, were being operated on a racially segregated basis and, if so, to demonstrate peaceably against such operation, and by such demonstrations, through the cooperation of the press, to focus national attention on such operation of the motor bus and terminal facilities in these cities.
This Court further finds that on or about May 14, 1961, a group of such individuals was traveling in interstate commerce toward Birmingham in two groups -- one group in a Greyhound bus and the other group in a Trailways bus; that on May 14, 1961, certain individuals, some or all of whom were conspirators with or members of the U. S. Klans, Knights of the Ku Klux Klan, Inc., and the Alabama Knights, Knights of the Ku Klux Klan, Inc., by force, threats and violence, intimidated the passengers on one of the buses and destroyed the bus at or near Anniston, Alabama; that said intimidation of the passengers and destruction of this bus by said conspirators was in furtherance of the conspiracy to prevent the passengers on the bus from carrying out their announced and intended purposes. This Court further finds that on May 14, 1961, upon the arrival in Birmingham of the Trailways bus referred to above, the U. S. Klans, Knights of the Ku Klux Klan, Inc., certain of its members, the Alabama Knights, Knights of the Ku Klux Klan, Inc., certain of its members, and other conspirators, unlawfully beat, assaulted, intimidated, threatened and harassed certain of the passengers who had alighted from this bus at the Trailways bus terminal.
This Court further finds that on May 20, 1961, it was a matter of public knowledge in Montgomery, Alabama, and was known to the Montgomery Police Department in Montgomery, Alabama, that a Greyhound bus carrying a group of white and Negro college students (which students had announced the purpose of riding through the State of Alabama, including Montgomery, on an interstate carrier, to determine whether they could use the instrumentalities of interstate commerce on such trip without racial segregation, or other illegal discrimination, and to demonstrate against any such discrimination should it occur) was en route from Birmingham to Montgomery. This Court finds that the Montgomery, Alabama Police Department was advised, through Spencer Robb, an agent of the Federal Bureau of Investigation of Montgomery, Alabama, that the bus carrying these passengers had left Birmingham at approximately 8:30 a.m.; and that this advice was given Acting Chief Marvin Stanley of the Montgomery Police Department by this agent of the Federal Bureau of Investigation at approximately 9:30 a.m. on the morning of May 20, 1961. The Court further finds that the Montgomery Police Department was aware of the fact that this bus had left Birmingham and was aware of the fact that certain difficulties had been encountered in Birmingham, Alabama, on May 14, 1961, when a similar group had arrived in Birmingham, Alabama. This Court further finds that a Montgomery Police Department officer, Detective Shows, stated to a reporter for The Montgomery Advertiser on the morning of May 20 that the Montgomery police 'would not lift a finger to protect' this group. The evidence is abundantly clear and this Court specifically finds that Lester B. Sullivan, as Police Commissioner, was advised by Floyd Mann, Director of the Alabama Department of Public Safety, on the morning of May 20, 1961, that the bus in which this group was riding was en route from Birmingham to Montgomery, Alabama, and had reached a point twelve to fourteen miles from the city limits of Montgomery, Alabama, at approximately 10:00 a.m. The likelihood of violence was known to the Department of Public Safety, and that Department, acting through its head, Floyd Mann, had taken the necessary precautions to protect this bus from Birmingham to the city limits of Montgomery, Alabama, by assigning sixteen highway patrol cars and one airplane to accompany this bus from city limits to city limits. Through various sources, Sullivan and the Montgomery Police Department, through Sullivan, were aware of the explosive situation that existed in this area with reference to these riders, and with that knowledge did not take any of the usual precautionary measures to keep down violence in the City of Montgomery upon the arrival of this bus. Police Commissioner Sullivan, with this information -- according to Police Officers Swindle, Moody, Lofton, Smith, Parham, and others -- had not even alerted the Montgomery City Police Department on this morning of May 20 and no special plans had been made by the Montgomery City Police Department to ensure the safety of the group of students, to prevent unlawful acts of violence upon their persons, and to ensure the safe conduct of these groups of interstate travelers. This Court specifically finds that the Montgomery Police Department, under the direction of Sullivan and Ruppenthal (Acting Chief Stanley, upon behalf of Ruppenthal) willfully and deliberately failed to take measures to ensure the safety of the students and to prevent unlawful acts of violence upon their persons. This lack of protection on the part of the city police of Montgomery continued even after the arrival of the bus. From the testimony of witnesses and the radio log of the Police Department, no police car was dispatched to the area of violence until car No. 19 (with two officers) was sent at 10:33 a.m. 'to investigate.' At 10:37 a.m., car No. 25 was also sent to investigate. It is significant that none of the officers in these two cars testified in this case. At 10:39 a.m., car No. 29 was sent to the general area 'to direct traffic.' The police dispatcher's radio log does not reflect that any other help was sent by the dispatcher to the station until 11:24 a.m.
This Court further specifically finds that the U. S. Klans, Knights of the Ku Klux Klan, Inc., and the Alabama Knights, Knights of the Ku Klux Klan, Inc., through certain of their leaders and members, conspired to and did commit acts of violence upon these interstate student-passengers or damage to the buses in Anniston, Alabama, and in Birmingham, Alabama, on May 14, 1961, and in Montgomery, Alabama, on May 20, 1961. This Court further finds that the defendant Henley and the defendant Ouzts acted in concert with the Klan groups herein named to commit acts of violence upon certain of the passengers and/or others in and around the passengers who had moved in interstate commerce and arrived at the Montgomery Greyhound bus terminal in Montgomery, Alabama, on May 20, 1961; that the actions of Henley and Ouzts were of a threatening and intimidating nature; that they committed acts of violence upon either passengers or newsmen, or both, at or near the bus that had brought these students to Montgomery, Alabama; and that said acts of violence were committed by the said Henley and Ouzts for the purpose of interfering with the travel of passengers in interstate commerce through Alabama and for the purpose of obstructing, impeding and interfering with the free movement of interstate commerce in and through Alabama. This Court specifically finds that the actions of the U. S. Klans, Knights of the Ku Klux Klan, Inc., Alabama Knights, Knights of the Ku Klux Klan, Inc., Robert M. Shelton as chief officer and administrative head of the Alabama Knights, Knights of the Ku Klux Klan, Inc., and Alvin Horn as chief officer and administrative head of the U.S. Klans, Knights of the Ku Klux Klan, Inc., conspired and acted to interfere with the travel of passengers in interstate commerce on May 14 and May 20, 1961, and on said dates obstructed, impeded and interfered with the free movement of interstate commerce in and through the State of Alabama and in and through this district.
Pursuant to the above findings, this Court now concludes that this action is brought by the United States to protect the interests of citizens of the United States in the free and unobstructed movement of interstate commerce and in the exercise of the constitutional power of the United States over such commerce. This Court further concludes that the injury to the public that would possibly flow from this Court's denying this preliminary injunctive relief would be irreparable, and, further, that there will be no injury to the defendants if a preliminary injunction is issued.
The leading case on this question of the United States' being entitled to equitable relief against the unlawful obstruction of or interference with the free flow of interstate commerce is In re Debs, 158 U.S. 564, 586, 15 S. Ct. 900, 907, 39 L. Ed. 1092. The Supreme Court in that case concluded with a statement that is particularly applicable to the situation this Court is now faced with:
'* * * while it is not the province of the government to interfere in any mere matter of private controversy between individuals, or to use its great powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the nation, and concerning which the nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties.
'The national government, given by the Constitution power to regulate interstate commerce, has by express statute assumed jurisdiction over such commerce when carried upon railroads. It is charged, therefore, with the duty of keeping those highways of interstate commerce free from obstruction, for it has always been recognized as one of the powers and duties of a government to remove obstructions from the highways under its control.'
See also Robbins v. United States, 10 Cir., 284 F. 39; Perko v. United States, 8 Cir., 204 F.2d 446, and other cases therein cited.
The failure of the defendant law enforcement officers to enforce the law in this case clearly amounts to unlawful state action in violation of the Equal Protection Clause of the Fourteenth Amendment. The fact that this action was of a negative rather than an affirmative character is immaterial. Only recently the Supreme Court stated in Burton v. ...