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          Barbara A. NESMITH and Richard A. Nesmith, Appellants,
             v. H.D. ALFORD et al., Appellees.
                                   No. 19609.
                 United States Court of Appeals Fifth Circuit.
                                  318 F.2d 110
                                 May 30, 1963.
OPINIONBY: BROWN
OPINION:   [*115]
   Before RIVES, CAMERON and BROWN, Circuit Judges.
   JOHN R. BROWN, Circuit Judge.

   This appeal from adverse judgments on jury verdicts denying
claims for damages for arrest, imprisonment and criminal
prosecution of white persons triggered by their eating with Negroes
in a public restaurant in Montgomery, Alabama, presents a number of
questions both of Alabama and federal law. Basic to each claim is
the question whether the trial Court should have granted instructed
verdicts as to liability on each of the three theories of recovery.
To the extent that one or more or all of the counts presented jury
issues, there is a question as to the correctness of jury charges
given or refused. Next there is a question of admissibility of
evidence of prior racial strife which the Court allowed as bearing
on good faith. Finally, there is the question whether the
instructed verdict for one of the defendant police officers was
proper. As to this latter item, we affirm. As to the other matters,
we hold there was error for the reasons later discussed. We
accordingly reverse and remand.

   The Plaintiffs who have perfected their appeal to this Court as
Appellants are Dr. and Mrs. Richard Nesmith. Filling out the cast
of characters as Defendants-Appellees are Commissioner of Public
Affairs Sullivan, Chief of Police Ruppenthal, Desk Captain Eiland,
and Police Sergeant Alford. The Complaint is in three counts. Of
these Count I for malicious prosecution and Count II for false
imprisonment are Alabama-Erie claims resting on diversity
jurisdiction. 28 U.S.C.A. @ 1332. Count III seeks $50,000 damages
caused by the conspiracy of the Defendants acting under color of
state law to deprive Plaintiffs of their constitutional rights
contrary to the Federal  Civil Rights  Acts. 42 U.S.C.A. @  1983;
28 U.S.C.A. @ 1343. The District Court, after instructing a verdict
in favor of Captain Eiland, submitted the case to the jury as to
all other Defendants and all counts under a general charge. A
general verdict for each of the Defendants as to each of the
Plaintiffs was returned. Judgments of dismissal were entered on the
verdicts. For a case so fraught with emotional overtones from local
racial patterns and practices, the case was remarkably   [*116]
free from any real dispute as to underlying facts.

   I.

   Dr. Nesmith was the Dean of Men and head of the Sociology
Department at MacMurray College in Jacksonville, Illinois. As part
of the scholastic
    PAGE   65                                318 F.2d 110, *116


program, his students often went on field trips. On this particular
trip in the spring of 1960, Dr. Nesmith, his wife (who went along
as a chaperone), their two-year-old daughter, and ten students went
south to study, among other things, the use of the non-violent
technique as a method of sociological change in relation to the
socalled "Montgomery Bus Boycott." See Browder v. Gayle, M.D. Ala.,
1956, 142 F.Supp. 707, affirmed, 1956, 352 U.S. 903, 77 S.Ct. 145,
1 L.Ed.2d 114.

   The group arrived in Montgomery, Alabama about 10:00 p.m. on the
night of March 30, 1960. The following morning they interviewed the
Montgomery Improvement Association, a Negro organization. As
lunchtime approached, the discussion was not concluded, so the
entire group, both Negro and white, adjourned to the Regal Cafe, a
Negro cafe in a Negro neighborhood. The group arrived at the cafe
shortly before 12:00 noon and proceeded to a private dining room
from which they could neither see out nor could people on the
outside see in. At the time of arrival, the street outside the cafe
was relatively quiet. A few people were walking around, sunning,
reading on their porches, etc.

   At approximately 11:45 a.m., Desk Captain Eiland of the
Montgomery Police Department received a telephone call from an
unidentified person who stated that some young white girls were
going into the Regal Cafe with Negroes. Eiland relayed this
information to Inspector Cox and told him to investigate. Cox
arrived about 12:15 p.m. and looked the situation over. He found an
orderly group of whites and Negroes sitting around a table having
lunch and engaging in discussion. Cox asked the executive secretary
of the Montgomery Improvement Association if all of these people
were from Montgomery, to which he got a negative answer. Cox then
went outside and called his superior, Sergeant Alford, "and told
him what the situation was." n1 A few minutes later, Alford came on
the scene. Alford looked inside the cafe and immediately reported
the situation to Chief of Police Ruppenthal. A crowd had started
gathering outside the cafe and had congested the area to such an
extent that by the time Ruppenthal arrived, he was forced to park
some 300 yards away from the cafe.

   n1 Cox then makes his exit as he was called to investigate a
robbery in another part of the city.

   Eventually there were numerous policemen, including some state
highway patrolmen, in and around the cafe. Ruppenthal recognized
Rev. DuBose, a negro with the group, as being the leader in a
recent march on the Capitol. (See Part II). Someone began taking
pictures of the mixed group inside the dining room. At no time was
loud or boisterous language used inside the cafe, nor were there
indications of violence of any type. Ruppenthal waited inside the
cafe for forty-five minutes to see if "they were going to leave oranything." At no time were the members of the group informed that
they were violating the law or that they must leave the cafe.
According to Ruppenthal, "they made no attempt to leave."

   In the meantime, Commissioner Sullivan had arrived. Someone told
Sullivan that these people wouldn't leave; he assumed someone had
asked them to leave, and they had refused. Sullivan telephoned the
city attorney and described the situation. The attorney advised
Sullivan that these people should be removed from the premises to
prevent further trouble.

   Sullivan told Ruppenthal to "move them out." Ruppenthal told
Alford to get some transportation, meaning, of course, vehicles to
carry these people to
    PAGE   66                                318 F.2d 110, *116


jail. Alford complied. Ruppenthal walked up to the group and said,
"All right, [*117]   let's go." "You, you and you." There was no
warrant presented, nor was there any explanation given as to why
the arrests were being made. The entire group was taken forcibly to
the police station; the men were loaded into the paddy wagon, the
women in cars.

   By this time, the crowd outside had reached sizeable
proportions, estimates ranging from 50 to 150 persons, consisting
largely of Negroes. However, the streets were completely congested
with cars containing white persons. After the arrests, the police
quickly dispersed the crowd and started cars moving again on the
streets.

   Upon arrival at the police station, the prisoners were processed
and placed in jail. The minor child of Dr. and Mrs. Nesmith was
taken from them. About 6:00 o'clock of the same evening, Dr. and
Mrs. Nesmith through their lawyer arranged for bail and were let
out. The remainder of the group stayed in jail overnight. The
parents immediately began the search for their child which ended
about 10:00 o'clock that night. Although the child had apparently
been well taken care of by the Juvenile Court matron and suffered
no harm, Mrs. Nesmith testified that she suffered much anxiety
during this time as to the whereabouts and well being of her child.

   The next morning (April 1, 1960) Assistant Chief of Police
Stanley (who is otherwise not involved in this case) told Sergeant
Alford that he had so to speak been elected to sign some affidavits
charging each member of the group with disorderly conduct in
violation of a recent city ordinance which had been passed on
advice of counsel to more fully comply with the state law
concerning the same offense. Alford signed the affidavits in blank.
They were subsequently filled in and warrants issued by Desk
Captain Eiland. Although it was believed not necessary to have
warrants for a prosecution in the local Recorder's Court (municipal
court), it was thought better to provide warrants in the event
there should be an appeal. Trial was held that same morning in
Recorder's Court of the City of Montgomery. Alford, Ruppenthal and
Sullivan each testified. The entire group was convicted of
disorderly conduct and let out on bond.

   Appeals were taken to the Circuit Court of Montgomery County.
Presumably following the usual procedure when a case is appealed
from the Recorder's Court, the prosecutions there were on
complaints filed by the City Attorney. Upon trial de novo, the jury
found all of the defendants not guilty with the exception of Dr.
Nesmith. He appealed to the Alabama Court of Appeals which reversed
the conviction for a defect in the complaint on the authority of
DuBose v. City of Montgomery, 1961, 41 Ala.App. 233, 127 So.2d 845.
This was on April 12, 1961. At that time the one-year statute oflimitations had run. The complaint was accordingly dismissed.

   II.

   Over the strong objection of Plaintiffs, the trial Court
admitted testimony concerning prior racial incidents in Montgomery.
It facilitates discussion of this claim of error to summarize this
evidence separately. The synopsis is stated most favorably to the
jury verdicts, and hence the Defendants.

   On February 25, 1960, there was an attempt by some Negro
students to integrate the lunch room in the court house in
Montgomery, Alabama. On February 27, a Negro woman was struck on
the head with a baseball bat by a white boy.
    PAGE   67                                318 F.2d 110, *117


The following day, there were protest demonstrations at Alabama
State College, a Negro college in Montgomery. On March 1, there was
a widely publicized Negro march on the State Capitol led by Rev.
DuDose. On March 6, Negroes assembled at a local Church and
announced their intention to go to the Capitol where a crowd of
whites had gathered awaiting their arrival. Anticipated violence
was avoided by action of the police in dispersing the crowds. On
March 8 and 10, there were protest demonstrations at Alabama State
College. Responding to a telephone call from the campus reporting
that things   [*118]   were getting out of hand, the police
patrolled this demonstration.

   In short, the Defendants claimed that this showed that for a
period of about a month prior to March 31, 1960, the City of
Montgomery was on edge with, and from, racial strife. See Dixon v.
Alabama State Board of Education, M.D. Ala., 1960, 186 F.Supp. 945,
reversed, 5 Cir., 1961, 294 F.2d 150.

   III.

   The count as to false imprisonment presents the fewest intrinsic
problems. Besides a motion for instructed verdict as to all counts,
Plaintiffs requested a specific charge as to false imprisonment
which was tantamount to a motion for directed verdict under F.R.
Civ.P. 50. Had the motion or the requested charge been given, only
the question of damages would have been open for jury
determination. We hold that the initial arrest and imprisonment of
Plaintiffs was unlawful as a matter of law. n2

   n2 The confinement of Dr. Nesmith on May 10 after his conviction
in the Circuit Court flows from that conviction, rather than the
initial arrest and is an element in the count for malicious
prosecution.

   As to this count and the separate one for malicious prosecution,
we are bound by Alabama law. As to both, it is pertinent to point
out the distinction between the two since Alabama consciously
recognizes this distinction. Accepted treatises point this out.
"The kindred action of malicious prosecution protects interests
closely related to those involved in false imprisonment, and
sometimes the two are confused by the courts. n3 Malicious
prosecution is the groundless institution of criminal proceedings
against the plaintiff. False imprisonment fell within the action of
trespass, as a direct interference with the plaintiff's person * *
*. The distinction between the two lies in the existence of valid
legal authority for the restraint imposed. If the defendant
complies with the formal requirements of the law, as by swearing
out a valid warrant, so that the arrest of the plaintiff is legally
authorized, n4 the court and its officers are not his agents to
make the arrest, and their acts are those of the law and the state,and not to be imputed to him. He is therefore liable, if at all,
only for a misuse of legal process to effect a valid arrest for an
improper purpose. The action must be for malicious prosecution,
upon proof of malice and want of probable cause, as well as
termination of the proceeding in favor of the plaintiff." Prosser,
Torts @ 12, p. 53 (2nd ed. 1955).

   n3 At this point the author in note 58 further stated: "The
frequency of such confusion is pointed out in Rich v. McInery,
1894, 103 Ala. 345, 15 So. 663, 49 Am.St.Rep. 32." It is remarkable
how the author emphasizes Alabama decisions to illustrate the
distinction. See @ 98, Malicious Prosecution, p. 646, where
reference is "* * * made again to the distinction between malicious
prosecution and the kindred tort of false imprisonment, in cases of
arrest and confinement. * * *." To the textual statement that "* *
* the difference is one of the
    PAGE   68                                318 F.2d 110, *118


regularity of the legal process under which the plaintiff's
interests have been invaded," note 11 declares, "The distinction is
well stated in Sears, Roebuck Co. v. Alexander, 1949, 252 Ala. 122,
39 So.2d 570."

   n4 Alabama apparently holds that the legal process need not be
letter perfect if the papers are a "colorable" charge of an
offense. Hotel Supply Co. v. Reid, 1918, 16 Ala.App. 563, 80 So.
137, 138; Shannon v. Simms, 1906, 146 Ala. 673, 40 So. 574.

   Nor in other significant respects do we find Alabama law to be
at substantial variance with the common law as generally developed
in the other states. All that is necessary to establish false
imprisonment is that an individual be restrained of his liberty
under the probable imminence of force without any legal cause or
justification therefor. n5 It is not necessary to show actual
force, threats, or injury done to the individual's   [*119]
person, character, or reputation. n6 The lack of malice, the
presence of good faith, or the presence of probable cause do not
affect the existence of the wrong when the detention is unlawful.
n7 If the act of the officer arresting a person without a warrant
is unlawful, the imprisonment is false. n8

   n5 Rich v. McInery, 1894, 103 Ala. 345, 15 So. 663; Daniels v.
Milstead, 1930, 221 Ala. 353, 128 So. 447; King v. Gray, 1914, 189
Ala. 686, 66 So. 643; Central of Ga. Ry. v. Carlock, 1916, 196 Ala.
659, 72 So. 261.

   n6 Daniels v. Milstead, 1930, 221 Ala. 353, 128 So. 447; Burk v.
Knott, 1924, 20 Ala.App. 316, 101 So. 811.

   n7 De Armond v. Saunders, 1942, 243 Ala. 263, 9 So.2d 747;
Phillips v. Morrow, 1923, 210 Ala. 34, 97 So. 130; Oates v.
Bullock, 1903, 136 Ala. 537, 33 So. 835; Daniels v. Milstead, 1930,
221 Ala. 353, 128 So. 447. Although these elements are not
essential to establish the claim, the above cases also indicate
that the presence of malice, lack of good faith and want of
probable cause may be shown in aggravation of punitive damages.

   n8 Daniels v. Milstead, 1930, 221 Ala. 353, 128 So. 447; Strain
v. Irwin, 1915, 195 Ala. 414, 70 So. 734; Standard Oil Co. v.
Davis, 1922, 208 Ala. 565, 94 So. 754.

   It is undisputed that the plaintiffs here were arrested and
taken to the police station where they remained for some four or
five hours without their consent. Apart from the matter of money
damages, there are only two questions. The first is whether the
arrest was lawful, i.e., justified by some valid authority or
right. Second is the question of the individual liability of each
of the defendant offices.   As to the issue of individual liability, each of the three
defendants -Sullivan, Ruppenthal and Alford - acted as one.
Although there was no prior plan devised to bring about the arrest
and imprisonment of the plaintiffs, each of the three had a
substantial role in bringing about the results. This was an
instance of the typical "chain of command," Sullivan indicating to
Ruppenthal that the Plaintiffs should be removed from the cafe,
Ruppenthal giving the authoritative commands constituting the
arrest, and Alford providing the essential transportation at the
direction of Ruppenthal. Their actions throughout the whole
sequence of events are so intertwined and interlocking that these
Defendants must fall together.
    PAGE   69                                318 F.2d 110, *119


   Nor can there be any doubt as to the total lack of legal
justification for the arrest without a warrant. n9 The Plaintiffs
were merely eating lunch with a group of Negroes. This was no
crime. This was no breach of the peace. The Defendants as public
officers were vividly aware that the former city ordinances
enforcing segregation of the races in public places, including
restaurants, had been repealed. n10 As a part of this massive
overhaul and repeal of segregation laws, an amended disorderly
conduct ordinance was adopted. n11 There was no [*120]
disturbance inside the cafe. Nor was there any action inside the
cafe which remotely came within the conduct proscribed by the
amended ordinance, note 11, supra. The only possible threat of a
disturbance was on the outside where crowds had gathered. We may
assume, as contended by Defendants, that the crowds had gathered,
not merely out of curiosity from the large number of policemen in
the area, but out of a spontaneous sense of outrage to the reported
presence in the building of Negroes and whites eating together
contrary to accepted social custom and usage.

   n9 See Title 15 @ 154, Code of Alabama of 1940 as amended:
"Arrest by officer without warrant; when and for what allowed. - An
officer may also arrest any person, without warrant, on any day and
at any time, for any public offense committed, or a breach of the
peace threatened in his presence; or when a felony has been
committed, although not in his presence, by the person arrested, or
when a felony has been committed, and he has reasonable cause to
believe that the person arrested committed it; or when he has
reasonable cause to believe that the person arrested has committed
a felony, although it may afterwards appear that a in fact been
committed; or on a charge made, upon reasonable felony had not
cause, that the person arrested has committed a felony."

   n10 Chapter 10, @ 14, Code of the City of Montgomery of 1952,
provided:

   "@ 14. It shall be unlawful to conduct a restaurant or other
place for the serving of food in the City, at which white and
colored people are served in the same room, unless such white and
colored people are effectually separated by a solid partition
extending from the floor upward to a distance of seven feet or
higher and unless a separate entrance from the street is provided
for each compartment."

   This was repealed by Ordinance 13-60 effective March 24, 1960,
barely a week before this incident.

   n11 As amended by Ordinance No. 11-60, effective March 24, 1960,
@ 18. Chapter 20, Code of the City of Montgomery provided:

   "It shall be unlawful for any person in the city to disturb thepeace of others by violent, profane, indecent, offensive or
boisterous conduct or language, or by conduct calculated to provoke
a breach of the peace."

   Indulging this and all other assumptions favorably to the jury
verdict, there is yet no single Alabama case to indicate that the
suspected threat of mob violence at the hands of law breakers may
be avoided by arresting those whose

actions are perfectly peaceful and legally and constitutionally
protected merely because such lawful and peaceful conduct
provocatively incites the incipient mob. n12 And we are equally
clear that Alabama would not do so in the future. We must, and do,
assume that under the Supremacy Clause, Article 6 of the
Constitution, Alabama courts will construe state statutes and
ordinances in keeping with federally paramount constitutional
principles. Great latitude is,
    PAGE   70                                318 F.2d 110, *120


and must be, extended to states in the determination of what
conduct constitutes a crime or in ascertaining guilt or innocence.
But before there may validly be the imposition of criminal
sanctions in the form of fine or imprisonment, or both, there must
be a crime defined and a crime committed. Thompson v. Louisville,
1960, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654; Garner v.
Louisiana, 1961, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207; Taylor
v. Louisiana, 1962, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395.

   n12 Indeed, pointing in the opposite direction is Jordan v.
Wilson, 1955, 263 Ala. 625, 83 So.2d 340, 345. The Court was there
dealing with a city ordinance similar in many respects to the one
here involved (note 11, supra).

   And as to an episode much more provocatively charged than our
case, the Supreme Court has just recently rejected on
constitutional grounds, convictions for similar, so-called breaches
of the peace. Edwards v. South Carolina, 1963, 372 U.S. 229, 83
S.Ct. 680, 9 L.Ed.2d 697. Distinguishing that situation as we
readily do so here from other cases, n13 the Court declared that
"it is clear to us that in arresting, convicting, and punishing the
petitioners under the circumstances disclosed by this record, South
Carolina infringed the petitioners' constitutionally protected
rights of free speech, free assembly, and freedom to petition for
redress of their grievances." 372 U.S. at 235, 83 S.Ct. at 683, 9
L.Ed.2d 697. Where in South Carolina the thing which "stirred
people to anger, invited public dispute, or brought about a
condition of unrest," 372 U.S. at 238, 83 S.Ct. at 685, 9 L.Ed.2d
697, was the words spoken or uttered by the demonstrators, here it
was the simple, peaceful act of Negroes and whites eating together.
But of this, the Court's words are none the less applicable.
"[They] were convicted upon evidence which showed no more than that
the opinions which they were peaceably expressing were sufficiently
opposed to the views of the majority of the community to attract a
crowd and necessitate police protection." 372 U.S. at 237, 83 S.Ct.
at 684, 9 L.Ed.2d 697. Whatever might be the peaceful means of
expressing disagreement with views, policies or practices, we are
freshly aware that the "Fourteenth Amendment does not permit a
State to make criminal the peaceful expression of unpopular views."
372 U.S. at 237, 83 S.Ct. at 684, 9 L.Ed.2d 697.

   n13 Feiner v. New York, 1951, 340 U.S. 315, 71 S.Ct. 303, 95
L.Ed. 295; Chaplinsky v. New Hampshire, 1942, 315 U.S. 568, 62
S.Ct. 766, 86 L.Ed. 1031; cf. Cantwell v. Connecticut, 1940, 310
U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213.

   We may credit the concern which these police officers testified
they felt. We think the circumstances existing   [*121]   that day
and their stated good faith apprehensions were admissible as
bearing upon the question of punitive, though not compensatory,damages. n14 But liberty is at an end if a police officer may
without warrant arrest, not the person threatening violence, but
those who are its likely victims merely because the person arrested
is engaging in conduct which, though peaceful and legally and
constitutionally protected, is deemed offensive and provocative to
settled social customs and practices. When that day comes, freedom
of the press, freedom of assembly, freedom of speech, freedom of
religion will all be imperiled. For the exercise of each must then
conform to what the conscientious policeman regards the community's
threshold of intolerance to be. Consequently, as to this count, the
judgment is reversed and rendered as to liability leaving open for
a retrial the question of damages, compensatory and punitive. n15
    PAGE   71                                318 F.2d 110, *121


   n14 "While malice is not an essential element of false
imprisonment and the existence or nonexistence of same does not go
to the plaintiff's right of action, it will be considered to
increase or mitigate the damages. * * * [Evidence] of the ill will
of the defendant toward the plaintiff, of the lack of reasonable
cause for the imprisonment, or of wanton abuse of the process by
the defendant, may be admitted to enhance damages. And on the other
hand, evidence of the defendant's good faith, and of his having
reasonable grounds to believe that his action was lawful, is
admissible to rebut the claim of vindictive damages, but not to
reduce the verdict below the actual damages suffered. 11 R.C.L. p.
821; Beckwith v. Bean, 98 U.S. 266, 25 L.Ed. 124; Rogers v. Wilson,
Minor, 407, 12 Am.Dec. 61; Oates v. Bullock, 136 Ala. 537, 33
South. 835, 96 Am.St.Rep. 38; Sanders v. Davis, 153 Ala. 375, 44
South. 979." Phillips v. Morrow, 1923, 210 Ala. 34, 97 So. 130.

   n15 By this conclusion we also hold that it was error for the
Court to give (over Plaintiff's objection) Defendant's requested
charge No. 9 which was restricted by its terms to the false
imprisonment count. Charge No. 15, whether or not similarly
restricted, was also erroneous since it permitted mitigation for
good faith of "any damages," not just punitive damages. (see note
14, supra).

   IV.

   The count for malicious prosecution presents more difficulty.
This flows from its nature, not from any peculiar Alabama concept.
Alabama subscribes to the traditional elements of the claim which
Prosser summarizes:

   "1. A criminal proceeding instituted or continued by the
defendant against the plaintiff.

   "2. Termination of the proceeding in favor of the accused.

   "3. Absence of probable cause for the proceeding.

   "4. 'Malice,' or a primary purpose other than that of bringing
an offender to justice." Prosser, Torts, @ 98, p. 646 (2nd ed.
1955).

   The distinction previously discussed between it and false
imprisonment must be kept in mind. "Malicious prosecution is the
less rigorous of the two remedies. It assumes that the defendant
has proceeded under proper legal formalities, and therefore takes
into account his good motives and probable cause for his conduct,
which are immaterial in false imprisonment. * * *." Ibid.

   The first two elements were sufficiently established. A criminalproceeding was instituted in the Recorder's Court and carried
forward in the Circuit Court. n16 And the proceedings were
terminated favorably to the accused, by the [*122]   jury verdict
in the Circuit Court as to Mrs. Nesmith and by the final dismissal
as to Dr. Nesmith after reversal and remand by the Court of
Appeals. As to elements three and four, we certainly agree with the
District Court's denial of motion for instructed verdict made by
each of the Defendants. There was ample evidence justifying a
submission. The more serious question is whether the Plaintiffs
were entitled to an instructed verdict as to liability on this
count.
    PAGE   72                                318 F.2d 110, *122


   n16 Curiously, the record reflects that the Desk Captain issued
the formal warrants on the morning of April 1 immediately prior to
the trial because it was "understood" that the Defendants wanted to
appeal the decisions in a case not yet tried. Apparently
prosecutions may be had in Alabama City Courts by notice without
formal warrant or arrest. See, e.g., Sears, Roebuck & Co. v.
Alexamder, 1949, 252 Ala. 122, 39 So.2d 570; McKinstry v. City of
Tuscaloosa, 1910, 172 Ala. 344, 54 So. 629, 630. In any event, new
complaints were apparently signed (but not verified) by the City
Solicitor before the de novo retrial of the cases in the Circuit
Court.

   The Alabama rule is very plain that as to element (3) want of
probable cause, it is a question of law for the court if there is
no dispute as to the facts. n17 The Alabama standard of probable
cause in actions for malicious prosecution appears to be the
traditional one. It is, says the Court, "such a state of facts in
the mind of the prosecutor as would lead a man of ordinary caution
and prudence to believe or entertain an honest and strong suspicion
that the person arrested is guilty" n18 of the offense for which he
is arrested, charged and tried. n19

   n17 Key v. Dozier, 1949, 252 Ala. 631, 42 So.2d 254, at 256.
"[If] the facts on the issue of probable cause are not in dispute,
whether such facts amount to probable cause is a question of law
for the court. - Brackin v. Reynolds, 239 Ala. 419, 194 So. 876."
Huffstutler v. Edge, 1950, 254 Ala. 102, 47 So.2d 197. See also
Prosser, Torts @ 98, p. 658 (2nd ed. 1955); Restatement, Torts @
673(1) (1938).

   n18 Jordan v. Wilson, 1955, 263 Ala. 625, 83 So.2d 340, 345. The
rule has many times been stated. See, Hanchey v. Brunson, 1911, 175
Ala. 236, 56 So. 971, 972; Republic Steel Corp.  v. Whitfield,
1953, 260 Ala. 333, 70 So.2d 424.

   n19 The honest belief referred to "must be * * * that the
accused is the guilty party." Gulsby v. Louisville & N.R.R., 1910,
167 Ala. 122, 52 So. 392, 395.

   If the matter stopped there, it would be simple. For all of the
reasons discussed at length in Part III with respect to false
imprisonment, two things are clear. First, there is no dispute
about the facts. Second, no person on those facts could have
entertained an honest and strong suspicion or belief that the
Nesmiths and their companions were guilty of any offense whatsoever
and none certainly that they were guilty of the alleged offenses of
disorderly conduct provoking a breach of the peace. But applying,
as we must, Alabama law, we must reckon with the further
authoritative declarations by Alabama Courts that a conviction for
the offense charged, even though subsequently reversed, is primafacie evidence of the existence of probable cause. n20 Plaintiffs
seek to escape the impact of this rule by contending that the
Recorder's Court of the City of Montgomery is not such an
independent judicial tribunal as to warrant this evidentiary
presumption. This rests on the assertion that under Alabama
statutes the entire legislative, executive and judicial functions
of government are lodged in the City Commission thus depriving the
appointive Judge of the Recorder's Court of minimal independence.
The trial Judge rejected this view, as do we. n21 It was
uncontradicted that Montgomery operated under the merit plan, and
the Judge of the Recorder's Court   [*123]   was subject to
dismissal only for cause. In any event, this would not suffice as
to Dr. Nesmith's case since, unlike his wife, he was convicted a
second time in the Circuit Court by a jury and favorable
termination came only from dismissal after reversal and remand
    PAGE   73                                318 F.2d 110, *123


from the Court of Appeals.

   n20 Prosser, Torts, @ 98, p. 657-8 (2nd ed. 1955), points out
that the majority rule that an initial conviction, subsequently
reversed, "is held to be conclusive as to the existence of probable
cause" is rejected by "a considerable minority view which regards
the conviction as creating only a presumption, which may be
rebutted * * *." To this in note 43 is cited Ex parte Kemp, 1919,
202 Ala. 425, 80 So. 809, in which Alabama made a deliberate
choice. The rule is now phrased this way.

   "* * * That is, that the judgment of conviction, though later
vacated and accused discharged, is prima facie evidence of the
existence of probable cause for instituting the prosecution 'which
may be rebutted by any competent evidence which clearly overcomes
the presumption arising from the fact of defendant's conviction in
the first instance.'" Jordan v. Wilson, 1955, 263 Ala. 625, 83
So.2d 340, 342. The language is from Ex Parte Kemp, supra.

   n21 In Jordan v. Wilson, supra, note 20, supra, the initial
conviction was in a municipal Recorder's Court.

   While we thus reject this contention of Plaintiffs, we conclude
that under Alabama law these intervening convictions are not
adequate to create any doubt or uncertainty as to facts which are
clear and undisputed. In other words, when the facts - clear and
uncontradicted as they are here - show without any doubt whatsoever
that there was not a single basis for anyone charging either of
these Plaintiffs with disorderly conduct provoking a breach of the
peace, neither those facts nor the inferences to be drawn from them
are changed in any degree by jury verdicts of guilty which ought
never to have been returned had the Recorder's Court dismissed the
charges on the completion of the prosecution's case as the law so
positively compelled.

   As the Alabama rule reflects (note 20, supra) that the prima
facie conclusion may be rebutted by evidence "which clearly
overcomes the presumption," it is plain that the Court retains a
function. It continues to be bound by the Alabama Rule that the
question of probable cause is one of law. The jury's sole function
is to ascertain the facts. n22 Next, the Court must determine
whether the so-called rebuttal evidence "clearly overcomes" the
presumption. If there is a place for judicial determination of that
matter - and there is - then it is in keeping with the traditional
judicial role to ascertain that it so "clearly overcomes" as to
leave no question at all. Any other rule here would be to leave to
the jury the determination of whether the officers' actions were
"reasonable." And it is that question which Alabama holds is one of
law on undisputed facts.
   n22 See Huffstutler v. Edge, supra, "When there is a conflict in
the evidence as to material facts relevant to that issue [probable
cause], a finding of the facts on that basis is one of fact not of
law. But the legal effect of such finding on the issue of probable
cause is one of law for the court and not one of fact." 47 So.2d
197, 198.

   It is this unusual role of the jury for a tort case which
commends as the "better * * * method" the use of "a special verdict
* * * under which" the jury makes findings upon which "the court
then determines whether the defendant had probable cause."
Restatement, Torts @ 673, comment d, p. 437.
    PAGE   74                                318 F.2d 110, *123


   The consequence is that the trial Court erred in not giving the
instruction requested in various forms charging the jury as a
matter of law that there was no probable cause for the arrest and
prosecution of the Plaintiffs.

   But there is still the vital elements of malice. "Malice in this
sort of action implies the intentional doing of a wrongful act to
the injury of another." Huffstutler v. Edge, 1950, 254 Ala. 102, 47
So.2d 197, 199. "Malice may be defined to be any 'indirect motive
of wrong.' Any motive, not a bona fide purpose, or, not associated
with a bona fide purpose, of bringing a person to punishment as a
violator of criminal law, is a malicious motive on the part of the
person who acts under its influence." Jordan v. Alabama G.S.R.R.,
1886, 81 Ala. 220, 8 So. 191, 192. Considering that this involves
the motivation for these criminal prosecutions, the circumstances
will be rare and the facts almost positively uncontradicted in
which a Court as a matter of law can rule that a prosecution was
commenced or continued with malice. Absence of probable cause -which we have just held to be established as a matter of law - does
in Alabama afford a basis from which to infer malice. n23 But the
elements are not synonymous. And the converse of this is not true
as the Alabama cases decline to infer lack of probable cause from
established malice. n24   [*124]   It is a question for the jury
whether a want of probable cause requires a finding of malice if
there is any evidence to show that the prosecutor honestly believed
there was such cause. O'Neal v. McKinna, 1897, 116 Ala. 606, 22 So.
905, 909.

   n23 Huffstutler v. Edge, 1950, 254 Ala. 102, 47 So.2d 197, 199;
Parisian Co. v. Williams, 1919, 203 Ala. 378, 83 So. 122.

   n24 Jordan v. Alabama G.S.R.R., 1886, 81 Ala. 220, 8 So. 191,
192.

   We think, however, that consistent with the broad definitions of
malice followed by Alabama Courts, it would have been malice as a
matter of law if these Plaintiffs were arrested and the prosecution
commenced and continued solely because they were eating with
Negroes in a public restaurant. n25 And even though not the sole
cause, if such a motive was the principal, primary, or predominant
one for continuing the prosecution, malice would be established as
a matter of law. Obviously there was sufficient evidence for the
jury to draw that inference, n26 but we do not think that on the
present record this was established as a matter of law.
Consequently, the underlying factual question of whether the
prosecution was solely for that reason had to be resolved by the
jury. Though requested by the Plaintiffs, the Court erroneously
declined to submit that issue. A suitable instruction should be
given.
   n25 While Jordan v. Alabama G.S.R.R., note 24, supra, rejected
the idea that to escape a judgment of malicious prosecution the
defendant's motive for institution "must be single, 'for the
purpose of bringing a person to justice.'" 8 So. 191, 193, it is
clear that this must be at least one of the motives.

   n26 Officer Alford testified:

   "Q. Now, in - in what way did the - who - whose - whose peace
did the peace did the people in the cafe disturb?

   "A. The neighborhood.

   "Q. The neighborhood; in what way did they disturb it?
    PAGE   75                                318 F.2d 110, *124


   "A. The City of Montgomery.

   "Q. I said what way did the people in the cafe disturb it?

   "A. Customs that people was in the - accustomed to, and they
didn't appreciate it and didn't like it."

   The result is that the counts as to malicious prosecution must
be reversed and remanded for a retrial on the issue of malice and
damages, actual and punitive.

   V.

   For reasons next discussed in Part VI, we hold that the trial
Court erred in admitting the evidence of prior racial strife (see
Part II). As this necessitates a retrial of the claim for  Civil
Rights,  it is appropriate to rule on objections here urged
covering matters which may well reoccur.

   This count was based on 42 U.S.C.A. @  1983.  It was stipulated
that the Defendants' actions were done under color of state law. We
have no doubt that as to a number of the actions, the proof showed
as a matter of law that the conduct of one or more or all of the
three officers at the restaurant violated one or more Civil Rights.
To this extent, the plaintiffs' motions for instructed verdict
certainly ought to have been granted.

   Certainly since Monroe v. Pape, 1961, 365 U.S. 167, 187, 81
S.Ct. 473, 5 L.Ed.2d 492, violation of some of the Civil Rights of
these Plaintiffs was established as a matter of law. These included
the freedom from unlawful arrest, n27 freedom of speech and freedom
of association. n28 This includes the freedom of a white man
peacefully to associate with Negroes in a public restaurant free
from the actual or threatened arrest by   [*125]   police officers
as a means of enforcing racial segregation. n29

   n27 Coleman v. Johnston, 7 Cir., 1957, 247 F.2d 273; Hughes v.
Noble, 5 Cir., 1961, 295 F.2d 495; Hardwick v. Hurley, 7 Cir.,
1961, 289 F.2d 529; Cohen v. Norris, 9 Cir., 1962, 300 F.2d 24;
Hoffman v. Halden, 9 Cir., 1959, 268 F.2d 280.

   n28 Edwards v. South Carolina, 1963, 372 U.S. 229, 83 S.Ct. 680,
9 L.Ed.2d 697; Louisiana ex rel. Gremillion v. N.A.A.C.P., 1961,
366 U.S. 293, 81 S.c/t. 1333, 6 L.Ed.2d 301; Bates v. Little Rock,
1960, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; N.A.A.C.P. v.
Alabama, 1958, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488;
Anderson v. Moses, S.D.N.Y., 1960, 185 F.Supp. 727.

   n29 The Court, without objection, charged as follows: "* * * I
charge you that it is * * * set out in the Constitution * * *, thatevery person is guaranteed the right of free assembly and free
association. Under the Constitution and laws of the United States,
a person is guaranteed freedom of speech, freedom of association,
freedom from arrest, except upon probable cause, * * *. A person
has a right not to be deprived of his liberty without due process
of law. A person has a constitutional right of association, and a
state or any officer thereof, or a city or any officer thereof, may
not enforce racial segregation. * * *."
    PAGE   76                                318 F.2d 110, *125


   The Court then went on to charge the defense theory that the
officers "were only seeking to maintain law and order, and the
actions of the Plaintiffs * * * were calculated to constitute a
breach of the peace." The Judge followed this with the dictum from
Agnew v. City of Compton, 9 Cir., 1956, 239 F.2d 226, 231, "No one
has a constitutional right to be free from a low officer's honest
misunderstanding of the law or facts in making an arrest." Where
the facts, as here (see Part IV), show no crime whatsoever being
committed, we cannot approve this as to an arrest without a
warrant. In addition, the case has been considerably undermined if
not repudiated by its authors. Cohen v. Norris, 9 Cir., 1962, 300
F.2d 24, 29.

   We would also have considerable doubt that for the situation
revealed by the uncontradicted facts of this record, the
instruction following immediately thereafter as to "probable cause"
and lifted almost verbatim from Russo v. Miller, 221 Mo.App. 292,
3 S.W.2d 266, 269, quoted by the Court in Mueller v. Powell, 8
Cir., 1953, 203 F.2d 797, 800, was here appropriate. That case
dealt with probable cause for an arrest for a capital felony, not
a mere alleged misdemeanor breach of the peace. While we do not say
that violation of Civil Rights will be categorized into misdemeanor
or felony as done under local state law, we do think that anything
as sacred as constitutional rights must take into account the
quality of the actions in the light of the quality of the suspected
crime. Of course, in determining Federal Civil Rights, it is
Federal, not State, law which controls. Pritchard v. Smith, 8 Cir.,
1961, 289 F.2d 153; Marshall v. Sawyer, 9 Cir., 1962, 301 F.2d 639.

   It is equally clear that the personal accountability of each of
the three officer Defendants was established as a matter of law
with respect to some of these violations. Thus, as we pointed out
in Part III, the arrest and imprisonment of the Plaintiffs without
warrant was both unlawful and participated in by each of the three
Defendants, Sullivan, Ruppenthal and Alford. It also constituted a
flagrant violation of federal Civil Rights. Each of these
Defendants participated in this action and each is liable
individually to the Plaintiffs for the full damages occasioned by
such conduct. Consequently, the Plaintiffs were to this extent
likewise entitled to an instructed verdict.

   But two things complicate the problem for the trial judge. The
first is that there are some actions which, although not so as a
matter of law, might yet be found by the jury to be a violation of
Civil Rights. The second is that as to these (and also under some
circumstances those acts which constitute violations as a matter of
law), there is the question of the persons who are legally
accountable. In connecting the acts with the Defendants, civil
liability for money damages of the respective Defendants would
depend on traditional tort principles. Each such action will haveto be brought home to each Defendant or imputed to him
constructively. Unless - as was so with respect to the inital
arrest and imprisonment - this is established as a matter of law,
liability of the respective individuals as to such conduct would
stand or fall on jury findings, express or implied, n30 showing
personal action or that imputed by conspiracy, agency, partnership,
respondeat superior,   [*126]   or the like. Thus, for example, the
commencement and prosecution of unfounded criminal prosecution
might under certain circumstances constitute, not only malicious
prosecution under the state law (see Part IV), but a violation of
Civil Rights as well. n31 Since the matter is not directly before
us, we ought not to explore fully what those facts must be or what
legal principles will be finally controlling. We may assume for our
present purposes, however, that since we are dealing here with
rights protected either by federal statute or the
    PAGE   77                                318 F.2d 110, *126


Constitution, there is no purpose to make every state criminal
prosecution which ends in an acquittal automatically a violation of
Federal Civil Rights Statutes. There must be something more. And
the added elements may well partake substantially of traditional
general tort law to bring in elements akin to want of probable
cause, or malice, or both. n32 If that is so, then the federal
claim may turn at times upon personal motivation and certainly the
conduct of the particular officer-defendant as the actor. The trial
Court must therefore take pains that all of these issues are
appropriately submitted.

   n30 This case with its multi-count, multiparty, complicated
issues, both ultimate and subsidiary, of state and federal
statutory and constitutional law presents again an ideal situation
for the flexible device of a general charge with special
interrogatories under F.R. Civ. P. 49. We have frequently urged
District Courts to use this effective mechanism. See, e.g., Fall v.
Esso Standard Oil Co., 5 Cir., 1961, 297 F.2d 411, 1962 AMC 951,
note 7, cert. denied, 371 U.S. 814, 83 S.Ct. 24, 9 L.Ed.2d 55;
Smoot v. State Farm Mut. Auto Ins. Co., 5 Cir., 1962, 299 F.2d 525,
533, and the numerous cases there cited. See also note 22, supra,
as to probable cause.

   n31 See Cohen v. Norris, 9 Cir., 1962, 300 F.2d 24, 28, note 3.

   n32 See Mueller v. Powell, 8 Cir., 1953, 203 F.2d 797.

   One way of meeting this problem - although certainly not the
exclusive way -is to apply a "conspiracy" concept. Presumably that
is what the Plaintiffs did here. In the Plaintiffs' complaint and
in the pretrial order outlining the issues for the trial then to be
held, F.R.Civ.P. 16, the Plaintiffs asserted the theory of a
conspiracy among the several police officers and city officials to
violate their  Civil Rights.  Of course, for a claim under @  1983,
a conspiracy as such is not an indispensable element as it is under
@ 1985. But it may be charged as the legal mechanism through which
to impose liability on each and all of the Defendants without
regard to the person doing the particular act. n33 Conspiracy is
asserted in that situation on more or less traditional principles
of agency, partnership, joint venture, and the like.

   n33 See Lewis v. Brautigam, 5 Cir., 1955, 227 F.2d 124, 128, 55
A.L.R.2d 505; Hoffman v. Halden, 9 Cir., 1959, 268 F.2d 280, 292;
Cohen v. Norris, 9 Cir., 1962, 300 F.2d 24, 27.

   For the reasons previously set out, the conspiracy theory was
not needed as to the initial false arrest and imprisonment; and, as
to that phase the retrial of the Civil Rights count will in effect
be limited to damages, compensatory and punitive. As to other
actions violating Civil Rights, the "conspiracy" aspect will be forjury submission unless the facts compel a direction one way or the
other.

   VI.

   We turn now to the admissibility of the evidence of prior racial
strife. (Part II).

   By the comments made both in Parts IV and V involving either the
concept of probable cause or those akin to it, and the element of
malice, we necessarily recognize that a considerable latitude must
be allowed to the trial Judge in the receipt of evidence bearing
upon those factors. Likewise, in fixing punitive
    PAGE   78                                318 F.2d 110, *126


damages for false imprisonment (Part III), or malicious prosecution
(Part IV), evidence bearing on good faith would be admissible. n34
But this has to do with facts and circumstances surrounding the
incident giving rise to the arrest, the imprisonment, or the
criminal prosecution making up the subject matter of the damage
suit. Thus, a wide discretion must necessarily be invested in the
trial Judge as to events occurring on that day (and the following
 [*127]   day when the criminal prosecutions were formally
commenced).

   n34 In malicious prosecution, evidence of good faith may bear
directly on liability through the essential element of malice. But
so far as damages are concerned, the same rule would apply as to
false imprisonment. See note 14, supra.

   But what took place a month before can have no bearing at all in
determining whether the act of white people eating with Negroes in
a public restaurant in Montgomery constitutes any kind of crime
whatsoever. If this were admissible, then there would have been
little reason not to include evidence of the physical brutality and
violence growing out of the Freedom Riders in Alabama, Mississippi,
and other Southern states, see Bailey v. Patterson (3-Judge Court),
S.D.Miss., 1961, 199 F.Supp. 595; reversed 1962, 369 U.S. 31, 82
S.Ct. 549, 7 L.Ed.2d 512; the violence which had occurred a few
years before in the Montgomery bus strike, Gayle v. Browder,
D.C.Ala. (3-Judge), 142 F.Supp. 707, affirmed, 1956, 352 U.S. 903,
77 S.Ct. 145, 1 L.Ed.2d 114; or for that matter any historic
episodes out of which these strong emotions arise.

   On issues of probable cause or analogous concepts, malice and
for aggravation, mitigation or extenuation of punitive damages,
great latitude must be allowed. This extends not only to the events
and circumstances but to the subjective apprehensions and beliefs
held by the actors as well. But it must be confined reasonably to
the transactions under judicial review and not loosely expanded to
encompass previous, separate, disconnected incidents or
occurrences.

   The Court erred in the admission of this evidence and this error
permeates all counts.

   VII.

   As to the defendant Eiland, we think the trial Judge acted
properly in granting his motion for directed verdict. On the day in
which the arrests were made, Eiland was acting in his capacity as
Desk Captain. He received a call to the effect that trouble might
be brewing, and, as was customary, he assigned an officer to
investigate. Up to that point he infringed none of the rights of
the Plaintiffs. The next day, Eiland, again acting as Desk Captain,issued the warrants against the Plaintiffs here. These were issued
on the basis of affidavits signed by Alford, an experienced police
officer. While it may be that the affidavits or the manner of their
verification was faulty, we think that in contrast to the officers
(and their superiors) initiating the  prosecution,  Captain Eiland
was acting in the role of a Magistrate. His function was to
determine whether legal grounds existed for an arrest and
prosecution.  n35 At least on this present record we think he had
quasi  judicial immunity.  Lewis v. Brautigam, 5 Cir., 1955, 227
F.2d 124, 128, 55 A.L.R.2d 505; Kenney v. Fox, 6 Cir., 1956, 232
F.2d 288; Tate v. Arnold, 8 Cir., 1955, 223 F.2d 782; Cawley v.
Warren, 7 Cir., 1954, 216 F.2d 74.
    PAGE   79                                318 F.2d 110, *127


   n35 See Mr. Justice Jackson's celebrated exposition of the high
importance of such actions. Johnson v. United States, 1948, 333
U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436, 440.

   The judgments in favor of the Defendants (other than Eiland) are
therefore reversed and the causes are remanded to the District
Court for further and not inconsistent proceedings.

   Reversed and remanded.

DISSENTBY: CAMERON

DISSENT: CAMERON, Circuit Judge (dissenting).

   I.

   In my judgment, the conclusions reached by the majority in the
brilliantly written opinion are unsound fundamentally, because the
major legal premise upon which they are based is false.

   (a) That premise is that what the Nesmiths were doing at the
time of their arrest was entirely legal on the ground that First
and Fourteenth Amendment rights are absolute. About half way
through its opinion, in reversing the lower court's judgment on the
first count based upon false arrest, and in holding as a matter of
law that the Nesmiths were entitled to recover thereunder, this
erroneous claim is epitomized by the majority in these words:

   "We may credit the concern which these police officers testified
they [*128]   felt. * * * But liberty is at an end if a police
officer may without warrant arrest, not the person threatening
violence, but those who are its likely victims merely because the
person arrested is engaging in conduct which, though peaceful and
legally and constitutionally protected, is deemed offensive and
provocative to settled social customs and practices. When that day
comes, freedom of the press, freedom of assembly, freedom of
speech, freedom of religion will all be imperiled. For the exercise
of each must then conform to what the conscientious policeman
regards the community's threshold of intolerance to be.
Consequently, as to this count, the judgment is reversed and
rendered as to liability * * *."

   The constantly repeated assertion that, as a matter of law, the
Nesmiths could not be arrested for their actions is, therefore,
based upon an assumption which runs exactly counter to the holdings
of the Supreme Court. The rule still recognized by the Supreme
Court was thus stated in Breard v. Alexandria, 1951, 341 U.S. 622,
642, 71 S.Ct. 920, 932-933, 95 L.Ed. 1233:

   "The First and Fourteenth Amendments have never been treated asabsolutes. Freedom of speech or press does not mean that one can
talk or distribute where, when and how one chooses. Rights other
than those of the advocates are involved. By adjustment of rights,
we can have both full liberty of expression and an orderly life."
n1

   n1 Cited to this text in a footnote are Cantwell v. Connecticut,
310 U.S. 296, 303, 304, 60 S.Ct. 900, 84 L.Ed. 1213; Cox v. New
Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049; Chaplinsky v.
New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Murdock
v. Pennsylvania, 319 U.S. 105, 109-110, 63 S.Ct.
    PAGE   80                                318 F.2d 110, *128


870, 87 L.Ed. 1292; Prince v. Massachusetts, 321 U.S. 158, 166, 64
S.Ct. 438, 88 L.Ed. 645; Saia v. New York, 334 U.S. 558, 561, 68
S.Ct. 1148, 92 L.Ed. 1574; Feiner v. New York, 340 U.S. 315, 71
S.Ct. 303, 95 L.Ed. 295. The note also refers to the collection of
cases in Niemotko v. Maryland, 340 U.S. 268, p. 276 ff, 71 S.Ct.
325, 95 L.Ed. 267.

   Breard has never been questioned by the Supreme Court, but, on
the other hand, has been cited by it as authority for the quoted
proposition a half dozen times. For example, the non-absolute
character of First Amendment rights is recognized in Roth v. United
States (Mr. Justice Brennan, 1957), 354 U.S. 476, 484, 77 S.Ct.
1304, 1 L.Ed.2d 1498, and in Konigsberg v. State Bar of California
et al. (Mr. Justice Harlan, 1961), 366 U.S. 36, 50, 81 S.Ct. 997,
6 L.Ed.2d 105.

   The Supreme Court, speaking through Mr. Justice Douglas, had a
short time before, Terminiello v. Chicago, 1949, 337 U.S. 1, 4, 69
S.Ct. 894, 895-896, 93 L.Ed. 1131, while extolling freedom of
speech as the most vital of all freedoms, stated: "That is why
freedom of speech, though not absolute, Chaplinsky v. New Hampshire
[315 U.S. 568], supra, pp. 571-572 [62 S.Ct. 766, 86 L.Ed. 1031],
is nevertheless protected against censorship or punishment, unless
shown likely to produce a clear and present danger * * *." In
Chaplinsky an unanimous court, speaking through Mr. Justice Murphy,
had upheld the arrest of a member of Jehovah's Witnesses who had,
on a public sidewalk in Syracuse, New York, accused a bystander of
being a "damned racketeer" and a "damned fascist." The Supreme
Court held that such utterances were "likely to provoke the average
person to retaliation, and thereby cause a breach of the peace."

   It is worth noting that the majority has not cited any authority
which would clothe the conduct of the Nesmiths with any concept of
"freedom of the press, freedom of assembly, freedom of speech,
freedom of religion." Most cases dealing with "assembly" as
encompassed within First Amendment rights relate to interference
with the making of speeches on public streets, in public squares
and the like by those who were attempting to draw a crowd in order
to discuss public   [*129]   questions and to convert the public to
their way of thinking. n2

   n2 Cf. the language of Mr. Justice Douglas dissenting in Feiner,
340 U.S. at 330-331, 71 S.Ct. 311-312, 95 L.Ed. 295:

   "Public assemblies and public speech occupy an important role in
American life. One high function of the police is to protect these
lawful gatherings so that the speakers may exercise their
constitutional rights. When unpopular causes are sponsored from the
public platform, there will commonly be mutterings and unrest and
heckling from the crowd. * * *"   Nothing like that was going on with the Nesmiths. According to
the doctor, their trek to Montgomery was in order that they might
acquire a "better understanding of the social structure" of the
South, and might be advised about a bus boycott which had taken
place there several years before, to study "the use of nonviolence
as * * * a device of social change."

   According to Chief Ruppenthal, on the other hand, during the
forty-five minutes he was present with them in the Regal Cafe they
were doing nothing more than having a social visit at the
conclusion of their meal during which the white and Negro girls and
boys were just carrying on, "laughing and going on like that."
    PAGE   81                                318 F.2d 110, *129


   Nobody connected with the arrest, imprisonment or prosecution of
the Nesmiths had any knowledge of the asserted purpose or content
of their discussions, and there was no disposition at all on the
part of these defendants to interfere with any constitutional
rights, actual or claimed. The officers merely found that a group
of white people of both sexes and including students of college age
were mingling socially with Negroes in the cafe; that their
presence had drawn a crowd bent upon witnessing and possibly
participating in the aftermath of this clear violation of long
accepted social customs; and that, in the context of what was
happening in Montgomery during the days immediately preceding this
intermingling of the races, such conduct was calculated to produce
a riot when the group emerged from the cafe. The officers were
dedicated to the protection of the participants in the gathering
from harm, and protecting the community they were employed to serve
from repetitions of violence and near violence which had ruled in
Montgomery during the period.

   (b) It is my opinion further that the majority has committed
error in its appraisal of the law applying to the latter half of
the syllogism upon which their conclusion is based. The quotation
supra from its opinion assumes that a police officer may never,
without warrant, arrest those engaged in the offensive and
provocative conduct, but must under all circumstances turn upon the
crowd threatening the violence. As far as I am advised there is no
holding of the Supreme Court which supports this position. The
pertinent portion of the ordinance of Montgomery under which the
officers were acting is as follows:

   "It shall be unlawful for any person in the City to disturb the
peace of others * * * by conduct calculated to provoke a breach of
the peace."

   This ordinance is a substantial rescript of a portion of what is
known as the crime of common law breach of the peace.

   The commonly accepted definition of this phase of breach of the
peace is thus stated in @ 116 of the A.L.I.Restatement of the Law
of Torts: "A breach of the peace is a public offense done by
violence or one causing or likely to cause an immediate disturbance
of public order." [Emphasis supplied.] As accepted by the Supreme
Court, the rule is stated in Feiner v. New York, 1951, 340 U.S.
315, 320, 71 S.Ct. 303, 306, 95 L.Ed. 295: n3

   "The offense known as breach of the peace embraces a great
variety of conduct destroying or menacing public order and
tranquility. It includes not only violent acts but acts and words
likely to produce violence   [*130]   in others. * * * When clear
and present danger of riot, disorder, interference with traffic
upon the public streets, or other immediate threat to publicsafety, peace, or order, appears, the power of the State to prevent
or punish is obvious." [Emphasis added.]

   n3 Quoting from Cantwell v. Connecticut, 1940, 310 U.S. 296,
308, 60 S.Ct. 900, 84 L.Ed. 1213.

   The importance of Feiner in the recognition of the permissible
limitations of breach of peace laws justifies a close examination
of its facts and its holding. The statute of the State of New York
under which the arrest was made is set out in the margin. n4 Feiner
was addressing an open air meeting at a street corner in Syracuse,
New York, and the police received a telephone complaint. They found
a crowd of about seventy-five or eighty people, both Negro and
white, filling the sidewalk and spreading out into the street.
Feiner was standing on a large
    PAGE   82                                318 F.2d 110, *130


wooden box, and the purpose of his speech was to urge his listeners
to attend a meeting to be held that night in a hotel. He made
derogatory remarks concerning the President of the United States,
the American Legion, the Mayor of Syracuse and other local
officials. In addition (340 U.S. pp. 317-318, 71 S.Ct. p. 305, 95
L.Ed. 295):

   "He gave the impression that he was endeavoring to arouse the
Negro people against the whites, urging that they rise up in arms
and fight for equal rights. The statements * * * 'stirred up a
little excitement.' Some of the onlookers made remarks to the
police about their inability to handle the crowd and at least one
threatened violence if the police did not act. There were others
who appeared to be favoring petitioner's arguments. Because of the
feeling that existed in the crowd both for and against the speaker,
the officers finally stepped in to prevent it from resulting in a
fight.'" [Emphasis added.]

   n4 "Any person who with intent to provoke a breach of the peace,
or whereby a breach of the peace may be occasioned, commits any of
the following acts shall be deemed to have committed the offense of
disorderly conduct:

   "1. Uses offensive, disorderly, threatening, abusive or
insulting language, conduct or behavior;

   "2. Acts in such a manner as to annoy, disturb, interfere with,
obstruct, or be offensive to others; * * *." [Emphasis added.]

   In affirming the arrest and conviction of Feiner, the Supreme
Court uses language which is, in my opinion, binding upon this
Court in the decision of this case:

   "The trial judge heard testimony supporting and contradicting
the judgment of the police officers that a clear danger of disorder
was threatened. After weighing this contradictory evidence, the
trial judge reached the conclusion that the police officers were
justified in taking action to prevent a breach of the peace.  The
exercise of the police officers' proper discretionary power to
prevent a breach of the peace was thus approved by the trial court
and later by two courts on review. * * * They found that the
officers in making the arrest were motivated solely by a proper
concern for the preservation of order and protection of the general
welfare, and that there was no evidence which could lend color to
a claim that the acts of the police were a cover for suppression of
petitioner's views and opinions.  Petitioner was thus neither
arrested nor convicted for the making or the content of his speech.
Rather, it was the reaction which it actually engendered." [340
U.S. pp. 319-320, 71 S.Ct. pp. 305-306, 95 L.Ed. 295. Emphasis
added.]   On the same day that Feiner was decided, the Supreme Court
rendered decisions in two more cases applying the due process
clause of the Fourteenth Amendment to First Amendment rights. n5
Mr. Justice Frankfurter, concurring in the result of Niemotko, Kunz
and Feiner, took occasion, by making comparisons between [*131]
the facts and the law involved in the three cases and by analysis
of a number of other similar cases, to delineate the sometimes
infinitesimal differences between the facts and the consequent
principles of law arising from those facts. Certain language used
by him has a peculiar applicability to the facts of the case before
us and to the majority opinion, which in my judgment disregards
principles so carefully spelled out in the series of cases: n6
    PAGE   83                                318 F.2d 110, *131


   "This Court has often emphasized that in the exercise of our
authority over State court decisions, the Due Process Clause must
not be construed in an abstract and doctrinaire way by disregarding
local conditions. * * *

   n5 Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed.
267, and Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed.
280.

   n6 340 U.S. at pp. 288-289, 71 S.Ct. at pp. 336-337, 95 L.Ed.
267.

   "Where conduct is within the allowable limits of free speech,
the police are peace officers for the speaker as well as for his
hearers. But the power effectively to preserve order cannot be
displaced by giving a speaker complete immunity. * * * It is not a
constitutional principle that, in acting to preserve order, the
police must proceed against the crowd, whatever its size and
temper, and not against the speaker. * * *

    "Enforcement of these statutes calls for public tolerance and
intelligent police administration. * *" [Emphasis added.]

   Feiner was recognized as valid by the recent decision of the
Supreme Court in Speiser v. Randall: n7

   "Moreover, since only considerations of the greatest urgency can
justify restrictions on speech, and since the validity of a
restraint on speech in each case depends on careful analysis of the
particular circumstances, cf. Dennis v. United States, supra [341
U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137]; Whitney v. California,
supra [333 U.S.0507, 68 S.Ct. 665, 92 L.Ed. 840], the procedures by
which the facts of the case are adjudicated are of special
importance and the validity of the restraint may turn on the
safeguards which they afford. Compare Kunz v. New York, 340 U.S.
290 [71 S.Ct. 312, 95 L.Ed. 280], with Feiner v. New York, 340 U.S.
315 [71 S.Ct. 303, 95 L.Ed. 295]." n8

   n7 1958, 357 U.S. 513, 521, 78 S.Ct. 1332, 1339, 2 L.Ed.2d 1460,
an opinion by Mr. Justice Brennan in which there was no dissent.

   n8 The Supreme Court had reversed a conviction of Kunz who had
spoken without a permit and after a permit to speak had been
refused. The conviction of Feiner had been affirmed, as shown
supra.

   Feiner was also recognized as authority in Garner et al. v.
Louisiana, 1961, 368 U.S. 157, 174, note 27, 82 S.Ct. 248, 7
L.Ed.2d 207, and in Edwards et al. v. South Carolina, 1963, 372
U.S. 229, 236, 83 S.Ct. 680, 9 L.Ed.2d 697. It should be noted inpassing that Edwards et al. had been prosecuted and convicted of
the common law crime of breach of the peace. The opinion does not
suggest that such a crime is not punishable where the evidence is
sufficient.

   (c) Certainly the cases cited in the majority opinion n9 do not
stand for the basic holding of the majority that First Amendment
rights are absolute, and that officers of the law cannot arrest the
person whose conduct is calculated to incite the crowd to violence,
but must, instead, proceed against the crowd whatever its size and
temper. In each case the Supreme Court assumed the validity of
statute making it unlawful for persons to engage in conduct
calculated to provoke a breach of the peace, that is, "likely to
produce violence in others." Also, in each instance, it found that
the conduct upon which the parties were arrested had not
engendered, and was not likely to
    PAGE   84                                318 F.2d 110, *131


engender, such a feeling in the crowd as would likely lead to
violence; [*132]   and that a breach of the peace would not likely
be occasioned by the expressions or the conduct involved; in short,
that the officers were not, under the evidence adduced, justified
in taking action to "prevent a breach of the peace." These cases
recognize what those discussed above have held, that a balance must
be struck in every case between the right of the individual to
engage in the course of action in question as weighed against the
rights of the public to live in an atmosphere of peace and
tranquility. "By adjustments of rights, we can have both full
liberty of expression and an orderly life."

   n9 Thompson v. Louisville, 1960, 362 U.S. 199, 80 S.Ct. 624, 4
L.Ed.2d 654; Garner v. Louisiana, supra; Taylor v. Louisiana, 1962,
370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed. 2d 395; and Edwards v. South
Carolina, supra.

   It was the duty of the court below and is our duty, therefore,
to weigh the conduct of the Nesmiths in the light of the
circumstances then prevailing and determine whether the officers,
with all of the facts before them, were justified in arresting and
prosecuting the Nesmiths because it was their reasoned judgment
that this conduct was calculated to provoke a disturbance of the
public order or violence on the part of others at the time when the
Nesmith group should leave the restaurant and become subject to the
feelings of the crowd waiting outside the restaurant.

   (d) I think this whole question and every facet of it depended
upon the facts presented before the trial court and the jury. The
judge who tried the case was reared in the State of Alabama and was
acquainted with conditions existing there. The jury also was
composed of members of the public who knew the local conditions.
The jury and the court necessarily found that "the officers in
making the arrest were motivated solely by a proper concern for the
preservation of order and the protection of the general welfare,"
and that their acts were not "a cover for suppression of [the
Nesmiths'] views and opinions" or their freedom of association. It
is manifest also that the jury and the court below found that the
actions of the Nesmith group were "likely to cause an immediate
disturbance of public order," or were calculated to "produce
violence in others," or were likely to engender a reaction in the
crowd waiting outside, which justified their arresting the Nesmiths
"to prevent a breach of the peace." I think that the record
discloses ample facts to require that, under applicable law, the
finding of the jury and the action of the court below be affirmed.

   II.

   In approaching this question of whether there was sufficient
evidence to support the jury's verdict, I think we could not dobetter than give ear to certain generally accepted remarks of Mr.
Justice Jackson: n10

   "If any two subjects are intrinsically incendiary and divisive,
they are race and religion. Racial fears and hatreds have been at
the root of the most terrible riots that have disgraced American
civilization. They are ugly possibilities that overhang every great
American city. * * *

   "Addressing himself to the subject, 'Authority and the
Individual,' one of the keenest philosophers of our time observes:
'The problem, like all those with which we are concerned, is one of
balance; too little liberty brings stagnation, and too much brings
chaos.' (Russell, Authority and the Individual, 25.) Perhaps it is
the fever of our times that inclines the Court today to favor
chaos."
    PAGE   85                                318 F.2d 110, *132


   n10 Dissenting in Kunz v. New York, 1950, 340 U.S.0 290,
313-314, 71 @S.Ct. 312, 324-325, 95 L.Ed/ 280.

   And then we must consider Tamiami, n11 where we took judicial
notice that the mere fact that a Negro was riding on the same seat
of a bus with an apparently white woman was calculated to produce
a breach of the peace. Reverend Bullock, a Negro clergyman, was
riding on an interstate bus sitting on the same seat with his wife
whose color was white   [*133]   though she, too, was Negro.
Citizens of Jamaica, they had learned of the decision of the
Supreme Court in the School Segregation Cases, and assumed that
segregation was not practiced on buses. They took their seats near
the front. When the bus reached its first stop a passenger
complained of this action, and the driver communicated this
complaint to the Bullocks and asked them to move to the rear. They
declined.

   n11 Bullock v. Tamiami Trail Tours, 1958, N.D.Fla., 162 F.Supp.
203, reversed and rendered by this Court, 1959, 266 F.2d 326.
   As the bus was at the point of departure from Perry, Florida, a
new passenger entered and demanded of the Bullocks that they move
to the rear. Upon their refusal, he assaulted both Reverend Bullock
and his wife. In a civil action for damages filed by them, the
district judge, sitting without jury, rejected the contention of
the Bullocks "that because of the attitude of the South towards
integration carriers of passengers should anticipate assaults and
adopt measures to protect passengers therefrom." The district judge
held (162 F.Supp. 205):

   "The evidence in the case completely refutes the contention of
plaintiffs in this regard. Integration in transportation has now
been in effect in Florida and elsewhere in the South for
approximately four years and the undisputed evidence in this case
is to the effect that * * * this is the only case in which an
unprovoked assault of this nature has occurred."

   In reversing his judgment denying recovery, this Court said:

   "* * * it is logical to infer that the drivers knew that the
Bullocks were not experienced with 'southern tradition.' * * *

   "Furthermore, this Court will take judicial notice (as the
district court should have done) of the commonly and generally
known fact that the folkways prevalent in Taylor County, Florida,
* * * would cause a reasonable man, familiar with local customs, to
anticipate that violence might result if a Negro man and a
seemingly white woman should ride into the county seated together
toward the front of an interurban bus.

    "* * * Tamiami * * * should have instructed its agency inJamaica to advise Negroes applying for passage through the southern
part of the United States of the South's tradition of segregation.
It should have instructed its driver to advise Negroes who were
obviously foreigners, * * * of segregation customs. * * *"
[Emphasis added. 266 F.2d 331-332.] n12

   n12 The chief case cited by this Court as the basis for its
holding on judicial notice was Goldsby v. Harpole, 5 Cir., 1959,
263 F.2d 71, 82. The fact that I would not have concurred in these
cases vesting this appellate court with power to draw upon its
storehouse of knowledge for all of the law and most of the crucial
facts in deciding, from the court's knowledge alone, that certain
facts existed as a matter of law, does not keep me from recognizing
the
    PAGE   86                                318 F.2d 110, *133


character of the two cases as precedents.

   Certainly the action of the Nesmiths in taking their group into
a Negro restaurant and dining with Negroes behind drawn Venetian
blinds would be more calculated to lead to a breach of the peace
than what was done by the Bullocks. If it is of any importance,
surely a court would know that a teacher of Sociology in Illinois
was acquainted with southern traditions; and, in my opinion, his
assumed naivete was sufficient justification for the jury to look
with doubt upon all of his testimony.

   Following Tamiami, the court below would have been required to
know judicially that what the Nesmiths did "would be calculated to
produce violence." Everybody in the private dining room was bound
to have been conscious of the presence of the police officers and
of their actions in clearing the assembled crowd out of the main
dining room on several occasions.

   What this Court did in Tamiami also, in my opinion, leads to a
complete rejection   [*134]   of the majority's holding here that
local conditions prevalent in Montgomery were not competent
evidence to be placed before a jury called upon to decide the
reasonableness of the police in their dealings with the Nesmiths.
The judicial knowledge of the Court in Tamiami was, according to
the opinion, derived from "southern tradition." That concept
necessarily embraces a consideration of the War Between the States,
the "Tragic Era," local conditions, and all other phenomena going
to establish a tradition which would be of sufficient certitude to
serve as the basis of a directed verdict.

   III.

   The rejection by the majority of evidence of what was happening
in Montgomery shortly before the Nesmiths' trek certainly amounts
to treatment of the problem "in an abstract and doctrinaire way by
disregarding local conditions * * *;" and disregards the admonition
of the Supreme Court, supra, that "each case depends on careful
analysis of the particular circumstances." n13 In fact, it is, in
my opinion, too clear for argument that the conduct of the Nesmiths
would produce different repercussions upon the public in Kansas,
California, Hawaii and New York from those engendered in Alabama.
It is equally clear that different reactions would ensue in
Montgomery, Alabama on different dates.

   n13 The graphic words used by the Supreme Court approving an
injunction against picketing is worth repeating here:

   "It must never be forgotten * * * that the Bill of Rights was
the child of the Enlightenment. Back of the guarantee of free
speech lay faith in the power of an appeal to reason by all thepeaceful means for gaining access to the mind. * * * But utterance
in a context of violence can lose its significance as an appeal to
reason and become part of an instrument of force. Such utterance
was not meant to be sheltered by the Constitution." Milk Wagon
Drivers' Union, etc. v. Meadowmoor Dairies, Inc., 1941, 312 U.S.
287, 293, 61 S.Ct. 552, 555, 85 L.Ed. 836.

   At the time of the Nesmiths' visit, Montgomery was a powder keg,
with the fuse prominently exposed for easy ignition. The proof
shows that Regal Cafe was almost in the shadow of the Negro college
which had been the focal point of riotous conduct in the immediate
past. n14 Reverend Martin Luther King was actively at work in the
city. Relations between the races had become so
    PAGE   87                                318 F.2d 110, *134


strained that the Governor and the Attorney General of Alabama had
made pleas to both white and colored people to refrain from
agitation and violence. At one time several thousand Negroes had
assembled near the steps of the Capitol and approximately ten
thousand white people gathered in the immediate vicinity. An
augmented force of city and county officers used fire hose to avoid
a clash between the two groups. Some students were expelled from
the Negro college, and pleas were issued by them calling upon the
student body of every school in the nation to support the
agitators.

   n14 See majority and dissenting opinions in Dixon v. Alabama
State Board of Education et al, 5 Cir., 294 F.2d 150.

   The "nonviolence" begun several weeks before the Nesmiths' visit
kept the community in an intermittent state of turmoil for several
months and by the time this case was tried, the trial judge knew,
from being present in Montgomery and from the cases appearing in
his court, that Montgomery was the scene of one or more riots with
the so-called "freedom riders." The federal government stationed
about seven hundred United States Marshals in or near the city and
fifteen hundred members of the Alabama National Guard were brought
into the Montgomery area by the State of Alabama. Between four and
five hundred State Highway Patrolmen, along with about seventy-five
men from the Conservation Department of Alabama and other State
agencies were brought in to assist in keeping order. These were
joined by about four hundred sheriffs and deputies from over the
state.

   All of this was part and parcel of what was gathering heat at
the time the doctor   [*135]   and his group were arrested. The
City of Montgomery avoided major catastrophe only by the courage,
the tolerance, the common sense and the firmness of the city and
state officers. They stood guard as protectors of every man, woman
and child within its limits, and without their protection nobody
would have been safe regardless of his race, or color, or the
office or status which he may have occupied.

   The relevancy and importance of testimony concerning these
conditions is to me beyond question and I am wholly unable to
comprehend the attitude of the majority which rules it out.

   Interestingly enough, this same panel of Judges sat in the
consideration and decision of State of Alabama et al. v. United
States of America, 5 Cir., 1962, 304 F.2d 583. The same majority as
that here relied heavily upon testimony which, it seems to me, is
of a character precisely similar to that rejected here.

   That case involved the conduct of voter registrars in Alabama
and the majority thought that the sequence of events preceding theregistrar's actions then under scrutiny definitely colored the
facts it was called upon to judge. It referred to actions of the
registrars as far back as 1946. These quotations taken from 304
F.2d pages 585, 586 and 588-589 serve to illustrate this:

   "What the Judge [Chief] ordered to be done must be measured in
terms of what the Judge [Chief] saw. * * *

   "And what was done likewise had to be measured against the
manner in which it was done. The whole process was infected by an
unsophisticated, patent, double standard. * * *
    PAGE   88                                318 F.2d 110, *135


   "Standing alone, and as irritating as that might be, this might
sound quite trivial. But this was but a part of a pattern by which,
* * * the grossest sort of inequality was being practiced. * * *

   "From the lips of the two, the Judge could now see what others
already knew, that the past was more than the past. It was the
future as well. * * *

   "It was in this setting - under the cumulative impact of gross
abuses in the past and little expectation of improvement for the
future - that the Judge was led to conclude * *."

   The same character of evidence as that upon which the majority
based its decision of that case is, in my opinion, not only
relevant but necessary to the decision of this one. It being clear
that the rights claimed by the Nesmiths are not absolute rights,
but are such as are defined by the circumstances then existing, any
evidence tending to establish the spirit with which the officers
performed their official acts is of the essence of the problem.

   It cannot be questioned that the parties tried the case below
with full recognition that this is true. The pleadings of the
Nesmiths abound in charges that the officers were not acting in
good faith in what they did, but were carrying out a conspiracy to
violate the plaintiffs' constitutional rights by subterfuge. Malice
and want of probable cause constitute the base for their charges.
The officers, on the other hand, defended on the ground that they
were convinced from their recent and current experiences that the
Nesmiths would be attacked by a portion of the crowd waiting
outside the restaurant and defended by others, and that a breach of
the peace was imminent. The definition of the issues by the
pretrial order emphasized the same thing. Having consulted fully
and obtained the advice of counsel, the officers proceeded in good
faith to enforce Montgomery's ordinances. This was the issue framed
by the pleadings, defined by the court, and now before this Court.

   IV.

   Much is said in the majority opinion about Alabama law dealing
with false arrest and malicious prosecution. Neither of the cases
relied upon nor the majority's discussion of them makes any clear
distinction as to the principles of   [*136]   law to be applied to
the two. It seems certain that the count for malicious prosecution
must be eliminated under the general law, which is followed in
Alabama, n15 where, as here, it is undisputed that the action taken
was under advice of counsel. The only unique rule which Alabama
seems to follow as related to this case is that conviction in the
Recorder's Court, although it raises a presumption that the arrest
and imprisonment were proper, treats the presumption as a
rebuttable one.   n15 34 Am.Jur., Malicious Prosecution, @ 71, page 747, citing
the Alabama cases of Stewart v. Blair, 171 Ala. 147, 54 So. 506,
and Kemp v. York, 16 Ala.App. 675, 81 So. 195, certiorari denied by
Supreme Court of Alabama, 202 Ala. 425, 80 So. 809.

   There is, to my mind, no doubt - and the majority seems to
concede - that there was no proof by plaintiffs of malice, or ill
will, or lack of probable cause on the part of the officers. It
follows that the conviction in the Recorder's Court is a defense to
these counts of the complaint. At all events, these questions were
questions of fact for the jury's decision and the
    PAGE   89                                318 F.2d 110, *136


contentions upon which the majority bases its opinion have been
foreclosed by the verdict of the jury approved by the trial court.

   These considerations leave out of view the determinant fact that
the  civil   rights  count lies at the base of this whole
proceeding and that the proof of the Nesmiths made out no case at
all independent of their claims under the Constitution and 42
U.S.C.A. @  1983.  This count was so intermingled with those
assuming to proceed under Alabama law, both by the appellants and
the court below and by the opinion of the majority, that no
decision can be reached which does not take the complaint as a
whole into account.

   V.

   Under these circumstances, all that is said in the majority
opinion about Alabama cases relating to the quantum of proof
necessary to make a case against the officers is irrelevant. It is,
in my opinion, settled in this circuit that the quantity and
character of proof necessary to make out a case such as this is
determined by federal law. This is peculiarly true here, where the
whole case is bottomed on the assertion that the Nesmiths' civil
rights were violated. One of the leading cases on the subject is
Reuter v. Eastern Air Lines, 5 Cir., 1955, 226 F.2d 443, 445:

   "Appellants insist that, under the rule prevailing in the
Alabama courts, a scintilla of evidence of negligence requires
submission of the issue to the jury, and that since Erie R. Co. v.
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, a like rule
should be required by the federal courts in diversity cases. Rules
38 and 39 of the Federal Rules of Civil Procedure provide for the
kind of jury trial in federal courts that is preserved by the
Seventh Amendment. * * *

   "In determining whether there is sufficient evidence to take the
case to the jury, a federal judge performs a judicial function and
is not a mere automaton. * * * He must determine, 'not whether
there is little or no evidence, but whether there is any upon which
a jury can properly proceed to find a verdict for the party
producing it.'"

   That case has been followed consistently in this circuit, and
the jury's decision in favor of appellees here is final.

   The same is true of the majority's assertion that there is no
dispute in the facts. As stated, I do not agree with this
conclusion of the majority. I think the account given by Chief
Ruppenthal and the other officers of what transpired in the cafe
differs in material particulars from that given by Dr. Nesmith and
his witnesses.   But, what is more important, the inferences reasonably to be
drawn from the words which were spoken is the crucial thing to be
considered. This Court's [*137]   attitude, oft repeated, was well
stated in Wright v. Paramount-Richards Theatres, Inc., 5 Cir.,
1952, 198 F.2d 303, 307-308:

   "'The focal point of judicial review is the reasonableness of
the particular inference or conclusion drawn by the jury. It is the
jury, not the court, which is the fact-finding body. It weighs the
contradictory evidence and inferences, judges the credibility of
witnesses, receives expert instructions, and draws the ultimate
conclusion as to the facts. The very essence of its function is to
    PAGE   90                                318 F.2d 110, *137


select from among conflicting inferences and conclusions that which
it considers most reasonable. * * That conclusion, whether it
relates to negligence, causation or any other factual matter,
cannot be ignored. Courts are not free to reweigh the evidence and
set aside the jury verdict merely because the jury could have drawn
different inferences or conclusions or because judges feel that
other results are more reasonable.' * * *"

   VI.

   The majority must, I submit, bridge a long gap beyond what the
Supreme Court has held in order to justify the decision here
rendered. With deference, I think the sense of balance so necessary
to the proper functioning of this Republic has not been observed in
its opinion. Much eloquence is employed in speaking of the right of
the venturesome crusader from the North to challenge age-old social
customs known by everybody to exist in Montgomery, Alabama. I think
the eloquence could be better employed.

   Consider the policeman called upon to decide between the
constitutional rights of the individual and the protection of the
public peace - I use Chief Ruppenthal as the example because he was
the chief actor here. Thirty-one years of his life had been given
to serving the public in this thankless position. n16 Nobody
questions his standing in the community as a man of honor,
integrity, courage and dedication to duty. He gave up his lunch
when someone from the vicinity of Regal Cafe advised him over the
telephone that a breach of the peace was in the making. (No Judge
who is a member of the Court which has Tamiami as a precedent can
doubt that such a danger was clear and present.)

   n16 "When constabulary duty's to be done * * *

   The policeman's lot is not a happy one."

   "The Pirates of Penzance," The Best Known Works of W. S.
Gilbert, p. 93.

   He did not act hastily. He brought to bear the sanity, the
tolerance, the sense of responsibility which experience had given
him. He got the advice of his superior, who in turn consulted the
lawyer. Nobody will question that he had to do something to save
the situation from one of tragedy. His duty was marked out by the
ordinances of the city he served. By following them for nearly a
third of a century he had helped measurably to make the City of
Montgomery safe to live in. He had adjusted rights so as to insure
the liberty of the individual, but, above all, to provide for the
community an orderly life. Such an adjustment had to be made here
and the zone of decision was all gray.
   The Code defined a breach of the peace as conduct calculated to
provoke others to violence. He was faced with such conduct, which
was a violation of the law of the municipality he had taken an oath
to uphold. Under the law he had a right and a duty to arrest
without warrant anyone guilty of conduct calculated to provoke a
breach of the peace - a misdemeanor committed in his presence.

   Are we to hold him and others like him to damages in a
collateral civil action by reason of a choice he made in adjusting
conflicting rights when that choice was honest and in good faith
and had not been condemned by any statute or any court decision;
will he have to lay his property on the line everytime he tries to
forecast what a group of appellate judges will hold as to the
correctness of that choice when they assemble at   [*138]   some
far-off place
    PAGE   91                                318 F.2d 110, *138


at some future date? What will be the fate of society if the courts
reduce such officers to a state of timidity?

   In my judgment what the majority here holds does not keep the
balance true. Stefanelli v. Minard, 342 U.S. 177, 72 S.Ct. 118, 96
L.Ed. 138. Chief Ruppenthal ordered the crowd on the sidewalk away
on several occasions. He cleared out those who were watching from
the vantage point of the main dining room on more than one
occasion. He was not faced with a situation where he could ask the
Nesmith group to leave. That would do no good. The leaving would
create the moment of danger. I think his decision was a wise one
and a fair one., I would commend him and the thousands like him in
whose hands the safety of all the people rests. I respectfully
dissent.