Case: Hicks and Young v. Cutrer

This case challenged the enforcement of an ordinance which prohibited persons from holding a parade, march or procession within the City of Bogalusa, Louisiana between the hours of 6:00 pm and 8:00 am. The plaintiff sought declaratory and permanent injunctive relief against enforcement of the ordinance pursuant to 28 U.S.C. § 2201 and § 2202 and 42 U.S.C. § 1981 and § 1983. 

On August 23, 1966, the plaintiff, a Bogalusa resident of black race and an officer of the Bogalusa Voters League, filed this class action lawsuit in the United States District Court for the Eastern District of Louisiana against members of the Commission Council of Bogalusa (the “Commission”); including, the Mayor of Bogalusa, the Commissioner of Public Safety of Bogalusa and the Chief of Police of Bogalusa. The Commission was authorized to enact and administer the ordinances of the City. On the same day, the plaintiff filed a motion for a preliminary injunction. 

Since February 1965, members of the Bogalusa Voters League had been engaged in peaceful activities in the City. The activities were designed to, among other things, encourage citizens of black race to register to vote and vote, and they included voter registration campaigns.  

On April 7, 1965, the Commission enacted an ordinance that declared it unlawful to crowd or congregate with others on a public street, right of way or sidewalk within the City and failing or refusing to move on or disperse and move on when ordered to do so by any law enforcement officer (No, 709, Chapter 18, Section 38, City of Bogalusa Code). The plaintiff argued that the ordinance had the purpose and effect of preventing Bogalusa citizens of black race from exercising their constitutionally protected rights of free speech and assembly, and freedom to petition for redress of their grievances. 

On June 3, 1965, proceedings were instituted in the U.S. District Court for the Eastern District of Louisiana that challenged the constitutionality of the ordinance (Civil Action Number 15672 C). Before a decision was determined by the Court, the ordinance was repealed and the proceedings were voluntarily dismissed on June 23, 1966. 

On October 5, 1965, Article 83 of the Municipal Criminal Code of Bogalusa (the “Code”) was adopted. Article 83(D) prohibited parades, demonstrations, processions or marches on a specified street in the City and its intersections at certain times. Article 83(E) prohibited any person, group, organization or corporation from holding parades, marches or demonstrations within the City between the hours of 6:00 pm and 8:00 am. The provisions were subject to limited exceptions set out at Article 83(F); for example, funeral processions. At the time that Article 83 of the Code was adopted, a new criminal code was adopted by the City to replace the existing municipal regulations. While the Code was based on the Model Municipal Code, which was published by the Louisiana City Attorneys’ Association, the Louisiana Municipal Association and the Junior Bar Section of the Louisiana State Bar Association, Article 83(E) was not included in the Model Municipal Code; therefore, it was specifically added by the Commission. 

In his Complaint, the plaintiff argued that Article 83(E) of the Code was adopted with the purpose and effect of preventing parades and marches during the only hours in which many of the City’s citizens of black race could participate, consistent with their employment, religious and other obligations, and significantly, when the grievances of the protest could be best communicated to the City’s residents. The plaintiff stated that Article 83(E) was void on its face as an unreasonably broad restriction and abridgment of First Amendment rights as applied to the plaintiff and those similarly situated; specifically, the right to free speech, peaceably assemble and engage in orderly marches to protest grievances. It also violated the due process clause of the Fourteenth Amendment. The plaintiff argued that he had no adequate remedy at law and would suffer irreparable injury unless a preliminary and permanent injunction were granted. 

While the validity of Article 83(D) was not challenged by the plaintiff, he argued that the oppressive effect on First and Fourteenth Amendment rights of the absolute prohibition on parades and picketing after 6:00 pm was heightened by the restrictions at Article 83(D). Article 83(D) severely circumscribed the right to protest and parade from the hours of 8:00 am to 6:00 pm by prohibiting the use of a road which comprised the main business district of the City and was adjacent to the site of many grievances connected with equal employment opportunities. It was also impossible to get across the area which separated the northern and southern portions of the City without crossing the prohibited area.

On September 2, 1966, the plaintiff filed an amendment to his Complaint. It set out a further limitation on marches between 8:00 am and 6:00 pm; namely, a preliminary injunction that was issued on February 1, 1966 against the plaintiff and others, including the Bogalusa Voters League, by the State District Court for the 22nd Judicial District of Louisiana in Bogalusa School v. Bogalusa Civic & Voters League et al. No. 25,732. The order concerned “picketing, marching (and) parading” during school hours and prohibited “doing any or all acts in contemplation of which a child may be persuaded not to attend… school…”. The plaintiff argued that the injunction had the effect of completely prohibiting all marches and parades during school hours (8:00 am to 3.15 pm) because those named in the injunction could be held in contempt if they were to organize a march during school hours and a single school child were to join the march.  

On September 11, 1966, the defendants filed an Answer to the plaintiff’s Complaint. They argued that Article 83 was a valid and constitutional enactment and Article 83(E) was a reasonable and desirable regulation that was in the public interest. As a result, (1) the Court should abstain from an adjudication of the constitutionality or other merits of the municipal ordinances pending authoritative interpretation of the ordinances in the appropriate State Court(s), (2) the plaintiff’s request for injunctive relief and the allegations of the Complaint relating thereto, failed to state a claim against the defendants upon which relief could be granted, and finally, (3) the defendants denied all allegations of the plaintiff’s complaint and sought dismissal of the plaintiff’s claim at its costs. 

On July 14, 1967, the plaintiff filed a motion to supplement his Complaint. The motion stated that on July 7, 1967, the Commission enacted a new ordinance, Ordinance No. 754, dealing with the regulation of parades and the issuance of related permits. Ordinance No. 754, repealed article 83 of the Code and re-enacted it as amended. On the same day, the Commission enacted Ordinance No. 755 which prohibited at any time, any parade, procession, march or demonstration on the same street previously identified in Article 83(D). 

The plaintiff argued that the purpose and effect of Ordinance Nos. 754 and 755 were to prevent and frustrate lawful marches and demonstrations of Bogalusa citizens of black race and the Bogalusa Voters League, as well as prevent those individuals from exercising their constitutionally protected rights of free speech and assembly, and freedom to petition for redress of their grievances. As a result, the plaintiff sought: 

1.      Declaratory judgment be issued declaring Ordinance No. 755 and Articles 83(D)(1), 83(E)(3) and 83(G), as amended by Ordinance No. 754, void on their face and as applied to the plaintiff and those similarly situated as violation of the First and Fourteenth Amendments. 

a.       Article 83D(1) comprised the same provision as previously set out at Article 83(E). 

b.      Article 83(E)(3) related to the standard for issuing a parade permit. 

c.       Article 83(G) related to the power of Commission members to stipulate alternative parade routes. 

2.      Permanent injunction be issued enjoining and restraining the defendants from enforcing Ordinance No. 755 and Articles 83(D)(1), 83(E)(3) and 83(G) of the Code, as amended by Ordinance No. 754, or from making any arrests or instituting any prosecutions thereunder, and pending the hearing and determination for permanent relief, a preliminary injunction be issued relating to the same. 

On July 19, 1967, United States District Judge F. Jacob Reagan Heebe held a hearing on the plaintiff’s motion for a preliminary injunction restraining the defendants from enforcing Ordinance No. 755 and Articles 83(D)(1), 83(E)(3) and 83(G), as amended by Ordinance No. 754. Judge Heebe reserved ruling on the plaintiff’s motion. 

On July 20, 1967, the plaintiff filed a motion for a temporary restraining order against the enforcement of Ordinance Nos. 754 and 755 pending a determination of the plaintiff’s motion for preliminary injunctive relief.  

On July 26, 1967, the plaintiff filed a second motion to supplement his complaint. The second motion stated that on July 22, 1967, the Commission again enacted new ordinances, Ordinance Nos. 757 and 758, which addressed the regulation of parades and the issuance of related permits. Ordinance Nos. 757 and 758 repealed and replaced prior Ordinance Nos. 755 and 754 respectively. The present motion sought to substitute relevant references in the earlier motion with details pertaining to the new ordinances.

On August 2, 1967, the defendants filed an Answer to the plaintiff’s Complaint. The defendants again argued that (1) the Court should abstain from an adjudication of the constitutionality or other merits of the municipal ordinances pending authoritative interpretation of the ordinances in the appropriate State Court(s), (2) the plaintiff’s request for injunctive relief and the allegations of the Complaint relating thereto, failed to state a claim against the defendants upon which relief could be granted, and (3) the defendants denied all allegations of the plaintiff’s supplemental and amended complaints. 

On August 30, 1967, Judge Heebe granted a preliminary injunction to restrain the defendants from enforcing the provisions of Part D(1) and (2) of Section 1 of Ordinance No. 758 (Article 83(D)(1) and (2) as amended by Ordinance No. 758) and declared Part D of Section 1 of Ordinance No. 758 unconstitutional in violation of the rights of the plaintiffs under the due process clause of the Fourteenth Amendment. Judge Heebe recognized and reserved to the defendants their power to enact reasonable and less burdensome provisions and limitations during the times for assemblies and parades.

Judge Heebe held that Part D(1) of Section 1 of Ordinance No. 758 unduly burdens the plaintiffs and inconveniences them in the exercise of their free speech and assembly rights. It has the effect of prohibiting all assemblies, parades and other such gatherings in all public places in the City between 6:00 pm and 8:00 am. Whilst the State argued that it is not capable of protecting marches and keeping the peace generally during periods of marching after dark, the Court noted that for five or six months of each year, darkness falls two or three hours after 6:00 pm.

Judge Heebe held that Part D(2) of Section 1 of Ordinance No. 758 is no less burdensome to peaceful assemblies and parades in the City. Moreover, it places too wide discretion in the hands of local officials to determine which expressions should and should not be allowed. Part D(2) of Section 1 of Ordinance No. 758 stated that “Not more than one parade can be held within the… City… at the same time by more than one different person, nor by the same person on different routes when to adequately patrol and protect such parades would require the diverting of police to the extent that less than six policemen remain on patrol duty to furnish police protection to the remainder of the City”. 

With respect to Ordinance No. 757 and the remainder of Ordinance No. 758, the plaintiff’s motion was denied. Judge Heebe held that Ordinance No. 757 was a fair and reasonable regulation, “very necessary to the interest of the public in Bogalusa and, because of its limited scope, not burdensome to the rights of individual citizens to conduct peaceable and meaningful marches and assemblies elsewhere on the public streets”. 

On September 7, 1967, following his ruling on August 30 relating to Ordinance Nos. 757 and 758, Judge Heebe held the plaintiff’s original motion concerning Article 83 of the Code to be moot. Therefore, the motion was dismissed and the matter was removed from the Court’s docket.  

The case is closed.