(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 *128felt. * * * 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.” 1
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 *129questions and to convert the public to their way of thinking.2
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.”
Nobody connected with the arrest, imprisonment or prosecution of the Ne-smiths 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: 3
“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 *130in 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.]
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.4 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 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.]
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 pi-eservation of order and protection of the general welfare, and that there was no evidence which could lend col- or 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.5 Mr. Justice Frankfurter, concurring in the result of Niemotko, Kunz and Feiner, took occasion, by making comparisons be*131tween 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:6
“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. * * *
“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: 7
“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 drcumstances, 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. 507, 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].” 8
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 opinion9 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 engender, such a feeling in the crowd as would likely lead to violence; *132and 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 ánd an orderly life.”
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:10
“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.”
And then v/e must consider Tamiami,11 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 *133though 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.
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 •x- -x- * 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 cornmonly 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.] 12
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 re*134jection 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 deálings 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.”13 In fact, it is, in my opinion,' too clear for argument that the conduct of the Ne-smiths 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.
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.14 Reverend Martin Luther King was actively at work in the city. Relations between the races had become so 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.
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 doc*135tor 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. * * *
“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 *136law 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,15 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.
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 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 Ne-smiths 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 Ne-smiths’ 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 *137attitude, 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 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.16 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.)
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 Jbdm 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 *138some far-off place 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.
. 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. 760, 86 L.Ed. 1031; Murdock v. Pennsylvania, 319 U.S. 105, 109-110, 63 S.Ct. 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.
. 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. * * * ”
. Quoting from Cantwell v. Connecticut, 1940, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213.
. “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.]
. 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.
. 340 U.S. at pp. 288-289, 71 S.Ct. at pp. 336-337, 95 L.Ed. 267.
. 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.
. 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 Eeiner had been affirmed, as shown supra.
. 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.
. Dissenting in Kunz v. New York, 1950, 340 U.S. 290, 313-314, 71 S.Ct. 312, 324-325, 95 L.Ed. 280.
. Bullock v. Tamiami Trail Tours, 1958, N.D.Fla., 162 F.Supp. 203, reversed and rendered by this Court, 1959, 266 F.2d 826.
. 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 character of the two cases as precedents.
. 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.
. See majority and dissenting opinions in Dixon v. Alabama State Board of Education et al, 5 Cir., 294 E.2d 150.
. 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.
. “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.