GRIFFIN v. MARYLAND

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Argument of Joseph L. Rauh, Jr.

Chief Justice Earl Warren: Number 26, William L. Griffin et al.,Petitioner, versus Maryland.

Mr. Rauh.

Mr. Joseph L. Rauh, Jr.: May it please the Court.

This case is here on writ of certiorari to the Court of Appeals of Maryland to review the trespass conviction of the petitioners for trying to ride on the merry-go-round at Glen Echo Amusement Park.

Glen Echo Amusement Park is the major amusement facility of the National Capital Area.

Shortly after 7:00 in the evening, on June 30,1960, a number of persons, Negro and White, gathered outside of the entrance to Glen Echo and formed a picket line.

Approximately an hour later, the five petitioners, young Negro students, entered the park.

Now, if Your Honors please, there is no obstruction at this park.

There is no gate at the park.

There is no admission tickets.

You walk on to the park and then you buy a ticket for the particular thing you want; a merry-go-round or any other of the amusements that they have there, the roller coaster and so forth.

These five petitioners went on to the land where, as I say, there is no obstruction, they walk to the carousel.

They had tickets which had been given to them by the White associates, tickets being admittedly freely transferable, they went upon the merry-go-round and sat on the horses and the other animals.

The music was playing, but the carousel didn't move.

Instead, a gentleman by the name of Francis J. Collins came up to them.

He had on the uniform of a private detective agency by which he was employed on detail to the Glen Echo Amusement Park and had on his lapel of his shirt, a badge, the Deputy Sheriff badge of Montgomery County which have been given to him pursuant to a provision of Montgomery County for such deputizing of sheriffs.

It is conceded that he had the full power of law upon Glen Echo Amusement Park.

Justice Hugo L. Black: May I ask you one question which I'd like to discuss as you go along.

Would that conduct have violated Section 1 of the Civil Rights Act which this Court held unconstitutional in 1883?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Chief Justice Earl Warren: May I also ask, Mr. Rauh, if there were any concessions in this part that were open to Negros.

Mr. Joseph L. Rauh, Jr.: No, Your Honor.

Chief Justice Earl Warren: There were none?

Mr. Joseph L. Rauh, Jr.: What had happened there --

Justice Hugo L. Black: Have you challenged it?

Have you challenged the holding of the Court on the Civil Rights Act?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor, as the second have --

Justice Hugo L. Black: You have challenged it?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

We are the overruling at the second half, under what I should refer to as the Justice Douglas' opinion in the Garner case, that's the second half of my argument.

I would like to do the facts and then the first half which is simpler, but the answer to your question is, yes, I do urge the reconsideration of the Civil Rights cases.

It is not, however, a necessary part of my case by any manner or means, but I --

Justice Hugo L. Black: It might be, might it not, from some view?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

I was thinking as listening to the last case that it might be necessary for those who did not feel that Shelley and Kraemer required a reversal as I do.

Justice William O. Douglas: But we would not be able to resurrect the federal statute, would we?

Mr. Joseph L. Rauh, Jr.: That's a question, Your Honor, as to whether that statute would in fact be resurrected.

I'm glad to say it's not in this case whether it would do --

Justice Hugo L. Black: I think we did do that, didn't we, with reference to one in the District of Columbia.

Mr. Joseph L. Rauh, Jr.: It might be resurrected.

I'm not certain.

We have considered that and I don't --

Justice William O. Douglas: I don't think we've ever resurrected a statute that a previous Court has struck down as being unconstitutional.

Mr. Joseph L. Rauh, Jr.: It's never been repealed.

That's as much as I can say.

Now --

Justice Hugo L. Black: What about the restaurant case, I don't remember exactly.

Mr. Joseph L. Rauh, Jr.: No, sir.

That was a case where the law had not previously been held unconstitutional, Your Honor.

Justice Hugo L. Black: What did you say?

Mr. Joseph L. Rauh, Jr.: The Thompson Restaurant case, the law had not previously been held unconstitutional.

Justice Hugo L. Black: The argument was that it had passed into --

Mr. Joseph L. Rauh, Jr.: It's been lost.

Justice Hugo L. Black: Innocuous death certificate --

Mr. Joseph L. Rauh, Jr.: Yes.

Justice Hugo L. Black: – you've tied there.

Mr. Joseph L. Rauh, Jr.: And you held that it was in effect.

Justice Hugo L. Black: Yes.

Mr. Joseph L. Rauh, Jr.: Now --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

I would just exactly --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph L. Rauh, Jr.: Precise --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph L. Rauh, Jr.: Precisely --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph L. Rauh, Jr.: Exactly.

Here is Mr. Collins with the Deputy Sheriff on his lapel, walks up and says to these five young Negro students on the carousel, “I give you five minutes to get off the property.”

The policy of the park is not to have colored people on the rides or in the park.

They declined to move.

He arrested them.

He went -- they went to an office to a substation at Bethesda.

They were tried and this is what came out at the trial.

Collins had orders from the owner from the first day he came to go up to any Negro on the premises, warn them off and, if they wouldn't leave, arrest them for trespassing.

He had orders that very day of June 30, 1960 on those particular people from the manager, “give them five minutes to get off and, if they don't get off, arrest them for trespassing.”

He carried on his orders.

We raised all the federal questions below and the question before the Court -- the two questions, and I'd like to make clear what I see as the two questions because they are different and they require an answer to Justice Black's question about the Civil Rights cases.

I say that Shelley and Kraemer requires a reversal and that even if it did not, as Mr. Justice Goldberg just asked me, there are additional points here above that which do require a reversal such is the fact that Collins was everything here.

Collins was the state.

He was the agent of the owner.

He was the one who made the crime by ask -- by ordering them off.

He was -- here, you had a confluence of state and private power discriminating.

This was perfectly clear that we have a case there whether you apply Shelley and Kraemer to the simple arrest and conviction or not.

But, we have a second point, whether in my time I will get to it, but I want to state it now before I elaborate the first because it is briefed fully and because I consider it of extreme importance, particularly as Justice Black asked me, for those who take a different view of Shelley and Kraemer, it might be important.

In the concurring opinion in the Garner case, Mr. Justice Douglas pointed out that a re -- large retail establishment might very well be required to serve that the licensing and regulation might very well be the equivalent of state action and that a retail establishment might very well be required to serve.

The difference, therefore, between my two points, and I want to make it very clear that this is the real difference, is that under the first point, they can sit on the carousel, but under the second point, the carousel has to move.

In other words, under the first point, you have a right to sit at the hamburger stand and you can't be removed by the police for sitting there in exercising your -- and standing there and seeking service.

Under the second point, which does require the overruling of the Civil Rights cases, the second point, the hamburger must be served.

Now, the case does not involve the second point at this stage.

For those who will agree on the first point, there is -- under the constitutional doctrine of limit -- taking the most limited ground, one would not get to the second point, but for those to whom the first point would seem -- on which I couldn't get an agreement on the first point, then it seems to me that we have squarely raised and we do ask a reconsideration of the Civil Rights cases.

Now, addressing myself to the first point, and I'm addressing myself, if I may, to Mr. Justice Harlan and Mr. Justice Stewart's question of New York or Montana and here we have actually a little mix here.

We have Maryland, which is a border state, but I'm perfectly happy to treat this case as though it had happened in Montana or New York in answer to that question.

I believe that the mere arrest and trial and conviction of a Negro American for trespass when he is excluded for the sole reason that he is a Negro is a violation to the Equal Protection Clause and is a clearer case than Shelley and Kraemer.

I think if this Court had had the two cases side by side in 1948 and if it only had this -- and had made a rule it would only decide one of them in favor of equal protection, we would have won that competition, and I think that for three reasons.

Mr. Greenberg made the first one very eloquently this morning, earlier, when he said that, in Shelley and Kraemer, they just held the courts open.

All that happened in Shelley and Kraemer was the state opened its courts.

Here, the state pulled a man by the scruff of the neck and took him into Court.

Certainly that's more state action than simply leaving your courts open.

Secondly, this is criminal action and certainly, a -- without -- certainly a stronger action than civil action and, thirdly, I think this is critical, maybe the man in Shelley and Kraemer did have some right -- did have some right of privacy.

The man in Shelley and Kraemer whose property right was really circumscribed by this Court was a man who had made an arrangement under which he thought Negros could not move next door.

There's a lot more privacy, Your Honors, in who can be your neighbor than in who you serve at an amusement park with thousands of people coming in there every day.

Now, I'm not suggesting, I don't think Shelley and Kraemer is correct.

I think it was eminently correct, but I am suggesting that this case is a far simpler case and I'm just limiting it now to arrest and conviction, that this is a far simpler case than Shelley against Kraemer.

If I may address myself to Mr. Justice Black's question this morning, doesn't the owner have the right to exclude?

Well, my -- I can only answer a question with another question.

Didn't the property owner in Shelley and Kraemer have a right to exclude?

Yes, he did, under the --

Justice Hugo L. Black: I don't think I asked that question precisely that way.

I didn't intend to, I probably did, I thought I had.

You didn't finally have to reach the question whether the constitution itself, standing alone, forbids an owner of a mercantile establishment to choose his customers.

Mr. Joseph L. Rauh, Jr.: You do not reach that in my judgment, Your Honor.

Just as the -- just as this Court said in Shelley against Kraemer that the restrictive covenant was still valid, but it couldn't be enforced in equity or in barrels in law.

So here, I presume this man, under my first ground, not under my second -- under the first ground, this man could still put up a sign “no Negros admitted.”

Justice Arthur J. Goldberg: Could he be convicted and he could use self-help and convict the Negros, can he do this the entire time?

Mr. Joseph L. Rauh, Jr.: That, if Your Honor please, is a difficult question.

We try -- we've addressed ourselves to that in a footnote on page 29.

In a word, it depends on this, Your Honor -- could -- suppose he does.

If the bouncer pulls him off the property.

The man sues for battery.

The bouncer sets up the right as a defense.

Then, it will depend on whether Your Honors decide that Barrel against Jackson applies because you are encouraging that sort of thing by recognizing this defense.

I know of no -- the Barrel -- Barrels against --

Justice Arthur J. Goldberg: You can't urge either -- you have heard he's bombarded.

Mr. Joseph L. Rauh, Jr.: I have -- in fact, the result of my argument may create that, although, as we point out in our brief and we've been very careful to point out in our brief that we don't believe that self-help -- well, ha -- we believe the self-help is a bugaboo that it's just never going to occur.

Owners of public establishments don't do the dirty business of throwing people off their property.

What has held this segregation in America together is the fact that the police have carried it out.

If this Court rules, as I believe it must unless it retreats from Shelley and Kraemer, and this Court hasn't retreated from a Civil Rights case in my lifetime, if this Court makes this decision, as I believe it would, I don't believe there's a slightest shunt that there will be a major self-help operation.

Businessmen simply don't carry it out.

They have relied on the police.

The police have done it for them, and that's what you have in this case.

As to whether, legally, there will be a right of self-help, it will depend on this Court's decision on whether Barrel against Jackson would permit that defense to an action on battery.

Justice Arthur J. Goldberg: Mr. Rauh, we don't need to reach that question.

Mr. Joseph L. Rauh, Jr.: No, Your Honor.

Justice Arthur J. Goldberg: Do we?

Mr. Joseph L. Rauh, Jr.: No.

Justice Arthur J. Goldberg: If you go on here, you have a man who was the Deputy Sheriff, isn't that correct?

Mr. Joseph L. Rauh, Jr.: Precisely and, matter of fact, now that I've --

Justice Arthur J. Goldberg: Isn't that the question you now argue?

Mr. Joseph L. Rauh, Jr.: Yes, sir.

You bring me to -- really to the next point.

You're absolutely right.

In my deep conviction, Shelley against Kraemer applies just to arrest and conviction, I have deliberately withheld from the additional part of the case.

I would like to say one more thing, if you would excuse me, sir.

On the Shelley and Kraemer point, why I'm so convinced that this an easier case to charge Kraemer just the arrest and conviction.

If Your Honors would put your mind to a license of a state which said -- well, they were a license to Glen Echo by the State of Maryland.

They have a license from the State of Maryland.

Suppose the license read “to serve as a public amusement park, Whites only.”

I don't think there's any question that that's illegal.

Indeed, under the -- Justice Stewart's concurring opinion in the Burton against Wilmington Parking Authority, it seems to me, that's exactly what he is talking -- what you are talking about there.

So, this is clearly -- I don't get an argument, I don't believe, in saying that if you issue the license for Whites only, that that's illegal.

What difference is it where you issue a neutral license and put the whole state apparatus to reaching the result of “for Whites only”?

What real difference is there between a license for Whites only and a neutral license with the entire state criminal power coming down to make it operate as a license for Whites only?

And, on this basis, I would conclude my belief that Shelley and Kraemer applies to the mere arrest and conviction, but and this is a big “but,” actually, there is far more in the instant case than mere judicial enforcement of racial discrimination.

So much more that maybe I'm engaging in wishful thinking and hoping that the problem I have just presented will reach the consideration of this Court.

Here, you have Mr. Collins with a Deputy Sheriff's badge on him, running the day-to-day operation of discrimination of Glen Echo Park.

Mr. Collins was the chief discriminator.

Mr. Collins created the crime.

This is very interesting if you think about it for a moment.

Justice John M. Harlan: Could he do that, they are definitive orders from his employer?

Mr. Joseph L. Rauh, Jr.: No.

He did it on orders from his employers but he was the state and he --

Justice John M. Harlan: There are differences in this case, I take it before he took the Act in this particular case, he consulted with his employer.

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

He had orders from the beginning of his employment to keep Negros off and then, in this particular instance, he got particular orders.

So, we --

Justice John M. Harlan: Is there any evidence in the case that this was an exception to the general deputy conduct, that he ever acted without specific orders of his employers?

Mr. Joseph L. Rauh, Jr.: Well, if Your Honor please, I think that this was the first test of the -- as far as I know, this was the first test.

There is a second one in the companion case, but this was the first test.

So, here is Mr. Collins, a state agent, and what I was just going to say, he created the crime.

By that, I mean in order for this to have been a crime, the Supreme Court -- the Court of Appeals of Maryland said that it was not a crime going on the property.

The only crime was not to get off when you were told to get off.

Now, who told them to get off?

Mr. Collins.

This was an essential part of the whole case and there's -- a very funny thing happened here.

You can't tell whether Collins is private or public.

If Your Honors would look at the two warrants, at the very beginning of the record there's a (b) then the pages aren't numbered at the very beginning of the record.

The first warrant that was issued under F (b), here on the record, refers in the middle, “after having been told by the Deputy Sheriff for Glen Echo Park to leave the property.

Well, that didn't commit a crime because he had to be told by an agent of the owner to get off the property.

So, look at (c), if Your Honors would do me that favor, where they changed that in the amended warrant to say, in the middle of the page, “after having been dully notified by an agent of Kebar Inc.”

Here, you had the private and public activities of this man, Collin, so mixed up that they -- that when they write the warrants they don't know which to say.

First, they say he was acting as a policeman, then, they say he was acting as an agent.

Well, the truth of the matter is, if I may misuse the word, he was a double agent.

He was perfectly clearly an agent for the owners and he was perfectly clearly an agent of the state as the police.

And, I suggest that one doesn't have to go any farther with this case than the very simple proposition that when a private party discriminates against Negros and the agent, for carrying out that discrimination on a day-to-day basis, is the state, there is a clear violation of the Equal Protection Clause.

Justice Arthur J. Goldberg: Doesn't the warrant, itself -- the amended warrant would give you the definition?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph L. Rauh, Jr.: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Joseph L. Rauh, Jr.: Precisely, Your Honor, and under page A, the very first page which is the application for the warrant, he's in there as the Deputy Sheriff and he said, as such, he did leave the thing so that it's quite correct to say that you have this complete relationship here.

Now, at this stage --

Justice John M. Harlan: That would be undeputized police officer, in every practical sense, occupy that dual relationship?

Mr. Joseph L. Rauh, Jr.: The deputized police?

Justice John M. Harlan: The undeputized police officer.

Mr. Joseph L. Rauh, Jr.: You mean the ordinary po --

Justice John M. Harlan: The ordinary police.

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

But, no --

Justice John M. Harlan: What difference is there in craft?

What difference is there in the practical relationship --

Mr. Joseph L. Rauh, Jr.: There are two diff --

Justice John M. Harlan: Between the man and the other man?

Mr. Joseph L. Rauh, Jr.: There are two differences, Your Honor, between what happened here and what I would call the naked Shelley-Kraemer arrest versus arrest and conviction, there are two differences.

In the first place, this man got in earlier than a policeman.

In other words, he was there on the spot.

He was the agent to make the crime.

He was not just called in after they wanted him off.

He was the one that ordered him off.

So, first place, it's earlier in relationship and, second place, he had no discretion.

Suppose the policeman had come on, a very nice policeman that was trying to do his job, sees five young Negro students on a merry-go-round.

Now, the first thing a policeman who isn't an agent is going to say to himself “well, my goodness! How can you arrest five nice-looking young students for wanting to ride on a horse on a merry-go-round?”

And, he'd say “well, the first thing I'm going to try to do is see if I can settle this.”

So, he'd say to the manager “let them alone” the man -- or he would try to say to the boys “well, will you go after one ride?”

He isn't going to just automatically arrest in this kind of a situation, but this man would automatically arrest because this man was paid.

His job was to arrest them.

His job in his private capacity was to arrest them, and he carried out without ever considering and saying “can't we think of some way out of this rather than an arrest here?”

And that, I suggest, is the two differences, Your Honor, both on time --

Justice John M. Harlan: Well, based on analysis, if the ordinary police officer was unable to persuade the land owner to settle the case because to put it would be duty to arrest, wouldn't it?

Mr. Joseph L. Rauh, Jr.: I do not believe so, Your Honor.

I think there is a discretion in here.

He might leave it to a civil action.

Justice John M. Harlan: If there was a clear violation.

Mr. Joseph L. Rauh, Jr.: He might.

There are cases in which the man thinks that the matter is of such small degree.

You don't get an arrest on every criminal action in this country.

He might, if he felt it was a minor infraction, he might leave it for some civil action.

In all probability, he would have arrested after he'd tried mediation.

I will go that far with Your Honor.

Now, just in conclusion of point one, I'd like to just make a reference to the difference bet -- in the government's position and our own in this case.

The government relies entirely on what I have just referred to what Mr. Justice Goldberg referred to as the additional points, Collins, his badge, putting together private.

I say that there are two grounds here, both in the Shelley and Kraemer grounds and that the government only makes the second of the grounds.

The government apparently feels that the second ground is conclusive.

It does seem to me that the first ground here is equally strong, but that, together, they leave no question as to the outcome.

It is, therefore, with a certain amount of humility that I would argue the second point.

However, it does become relevant, as Justice Black indicated, for those who might not accept the first argument, we take the position in point two of our brief that Glen Echo didn't have any right to discriminate, that the use of the words “lawful right to discriminate” or “lawful right --” I think that we u -- the use of the words below were “lawful policy of segregation” is a misnomer.

We accept the statement by Mr. Justice Douglas in Garner that those who run a retail establishment under permit from a municipality operate, in my view, a public facility in which there can be no more discrimination based on race than is constitutionally permitted in the more customary type of public facility.

Now, let us look at this --

Chief Justice Earl Warren: They said on which provision of the constitution?

Mr. Joseph L. Rauh, Jr.: The Fourteenth Amendment, if Your Honor please, the Equal Protection Clause.

And, I might say there that I don't put much stock in people who say “if you do something on Equal Protection Clause, you're sure going to cause a lot of trouble under due process, the Red-head case and so forth,” that seems to me to be just a trumped up point.

The fact is the Fourteenth Amendment, as this Court has said and said, was primarily designed for the benefit of the colored race and it seems to me that what we are saying here is that we -- that rules that will be set up on Equal Protection Clause which is absolute do not necessarily determine how the due process clause would apply in the future to the same institution, and I'm referring here to Glen Echo.

Look at Glen Echo now.

This is the major amusement facility in this whole area of a 1.5 million people.

Now, it may -- the licenses you have to get are legit.

They are set forth on page 33 of our brief.

The regulation, the determined regulation of this place is legit, the support that they get from the state.

So, what you have here, looked at as the point of state regulation is licensing regulation and support.

But, then you have something else, and this I would suggest, this is an in -- an activity affected with the public interest.

This is one closed with a vital public interest.

Justice Hugo L. Black: What activity is not affected by -- doesn't affect the public interest?

Mr. Joseph L. Rauh, Jr.: Well, if Your Honor is now referring to the cases in which the government of state and federal can regulate, I would say, under this Court's decision, that the legislative body would generally be accepted in what they did so hold.

And, I do accept that, Your Honor, but there -- I would say that how far that may go, one doesn't know now.

I'm saying what I do know, is that this interest, this is a big operation, this is a big public interest in this area.

Whether you look at this institution from the fact of the state down, licensing regulation and so forth, or from the effect on the community, it seems to me that you have here a significant governmental action, a significant state action, whether done through the fact of licensing regulation and support, as Justice Douglas points out, or whether, because of the tremendous significance of the operation, it takes on characteristics of state action and put together this is -- this organization cannot discriminate -- it does not have a lawful power.

Under this line of reasoning, the sign “Negros only” would be illegal.

Under the --

Justice Hugo L. Black: Are you saying that, under those circumstances, it is the state?

Mr. Joseph L. Rauh, Jr.: It is the state for the purpose of the Fourteenth Amendment, yes.

Justice Hugo L. Black: I see.

Mr. Joseph L. Rauh, Jr.: For the purpose of -- I want to qualify myself as carefully as I can.

It is the state for the purpose of the Equal Protection Clause of the Fourteenth Amendment.

Justice Tom C. Clark: Any license to that effect?

Mr. Joseph L. Rauh, Jr.: No, I think the way -- we can't go to say everything.

I don't have -- we don't have that case here.

There are going to be situations where it may not rise to the dignity of saying this.

I'm not suggesting that.

Justice William O. Douglas: Like the Metropolitan Club?

Mr. Joseph L. Rauh, Jr.: Well, there is a privacy there and I wouldn't -- I would say probably not.

I would like to say --

Justice Hugo L. Black: But it takes the public interest, I understand.

Mr. Joseph L. Rauh, Jr.: Well --

Unknown Speaker: [Inaudible]

Mr. Joseph L. Rauh, Jr.: Heaven save me from discussing a club to which would undermine along.

Unknown Speaker: [Inaudible]

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor, there must be state action and come -- I'd like to address myself --

Unknown Speaker: [Inaudible]

Mr. Joseph L. Rauh, Jr.: The Civil Rights case has said that the Fourteenth Amendment only applies to state action, not to private action.

That does not have to be overruled for any purpose, I accept that.

Unknown Speaker: [Inaudible]

Mr. Joseph L. Rauh, Jr.: I think they have to be overruled for another purpose.

The Civil Rights cases involved a statute of the federal government on amusement parks, private amusement parks.

Now, I would assume they would have to be overruled and it has to be overruled because if the federal government couldn't regulate the private amusement park in this regard, then I would assume that the state could use its power to enforce the Act.

In other words, if this were in fact, what I say it is, a part of the state then the Civil Rights statutes would have been constitutional, not unconstitutional as Your Honors -- as the previous Court held, but that brings me to what it seems to me is the fundamental problem here on this second point.

Two cases were decided in the retreat from the Fourteenth Amendment.

One was Plessy against Ferguson, one was a Civil Rights Act -- one was a Civil Rights case.

In both of these, there were brilliant dissents which foresaw the future.

In one of these, this Court has now reversed and accepted that dissenting opinion, it seems to me that the dissenting opinion was right here and that the real explanation for this case was that, at that time, the real doctrine of -- the Doctrine of Property Rights was on top and the Doctrine of Human Rights was under that.

In this situation, it seems to me, the time has come to overrule the Civil Rights cases.

Now, I say that, and again would like to end and save the rest of my time with the thought that, except for those who don't believe in the first point, I do not -- I quite agree that I have argued more than is before the Court.

Justice William O. Douglas: You're willing to win on either ground.

Mr. Joseph L. Rauh, Jr.: Well, I think that, as one lawyer up here once said when he made a suggestion on that ground, he got a Supreme Court Justice angry.

I shall not do the same.

I'd like to reserve the rest of my time.

Chief Justice Earl Warren: You may do that.

Mr. Murphy.

Argument of Robert C. Murphy

Mr. Robert C. Murphy: May it please the Court.

There is in Maryland no law, there's no governmental policy, there's no state or locally induced custom which requires exclusion of Negros from amusement parks, places of amusement or for that matter, any other type of private business in Maryland.

I certainly agree with my brother that the State of Maryland, in this respect, does not differ from the State of Montana, from the State of Michigan.

The racially discriminatory practice of the amusement park was not, therefore, in this case, caused by or the result of any state policy or law.

I think the record is plainly devoid of any showing that the policy of the park excluding Negros was in any way influenced, aided, promoted, or in any way assisted by any state law or any state policy by any locally induced custom.

Justice William O. Douglas: How about the decision of the Court of Appeals?

Mr. Robert C. Murphy: I don't understand your question, Mr. Justice Douglas.

Justice William O. Douglas: The Court of Appeals sustained the convictions and they imposed sanctions of the state on these p --

Mr. Robert C. Murphy: On the basis of the existing law as they saw.

Justice William O. Douglas: Yes.

Mr. Robert C. Murphy: I think, on the contrary, the record in this case shows that the park management, for 51 years, had been practicing discrimination on racial line.

This was a close family held corporation.

There are only three members in the family that owned it at the time of this act of discrimination, but they had, for 51 years, excluded Negros as a matter of business of choice.

Now, the fact that there was no governmental restraint involved here or governmental action that would induce them to have such an exclusionary policy.

I think it's evidenced by the fact that and is conceded by my brother that shortly after the conclusion of these cases in the lower Court, the park abandoned its policy.

So that, the park now is fully integrated and, shortly after that, on the other side of the coin, Montgomery County enacted an Equal Accommodations Bill, effective January of 1962, but I think the element of state action, the state policy, state law is apparently absent in this case.

Justice William O. Douglas: Are you going to discuss Shelley and Kraemer?

Mr. Robert C. Murphy: Yes, sir.

Chief Justice Earl Warren: You haven't said anything yet about the Deputy Sheriff.

Mr. Robert C. Murphy: I'm saving that to the end.

Chief Justice Earl Warren: I beg your pardon?

Mr. Robert C. Murphy: I'm saving that, sir, if I can.

I'll get there.

Chief Justice Earl Warren: Yes, that's alright.

Do it at your own time.

Mr. Robert C. Murphy: I'm tying it in some order which makes sense to me to get to these points perhaps which are more difficult.

I like to pass the easy ones perhaps in the beginning.

Now, the State of Maryland has no profound thoughts on the existing law which gives the right, common law right to a private entrepreneur such as an amusement park to arbitrarily discriminate as to its invitees.

We simply cite the existing law to you.

We rely strongly on the Howard Johnson's case of the Fourth Circuit.

There's also I think some semi-implicit recognition of the validity of these common law concepts and both important, and the Burton versus Wilmington Park Authority cases.

The requirement of a license to operate, as is present in this case, from a Montgomery County with relation to amusement parks does not matter to convert this facility, which is private, into a public facility.

I have difficulty seeing how any facility open to the public is not affected with public interest.

I don't know where you would draw the line if mere licensure was tantamount to a -- to taking away from the private entrepreneur of his common law right of free choice.

Certainly, there's no franchise or monopoly granted by the mere grant of a license.

Frequently, they're solely for revenue purposes.

Justice William O. Douglas: How about inns, and hotels, and motels in Maryland?

Mr. Robert C. Murphy: Certainly, they -- under the common law, they cannot differentiate or discriminate.

Justice William O. Douglas: Against Negros.

Mr. Robert C. Murphy: Against Negros or anyone else.

Justice William O. Douglas: So, you've got some invasion there of this sacred private property.

Mr. Robert C. Murphy: Yes, sir, but it was sanctioned. It was in the common law part of our constitution.

Sir, I think that is a distinction.

Justice William O. Douglas: It has age on its side.

Mr. Robert C. Murphy: Age on its side.

We would, therefore, adopt the entire statement of Justice Soper in the Fourth Circuit in Williams versus Harold Johnson that the license laws do not fill the void that we are speaking of now.

Now, my brothers assert that even absence of a law, state law, or state policy requiring the exclusion of Negros in the private amusement park that, nevertheless, the mere act of arrest and a conviction is a violation of equal protection.

They rely strongly on Shelley versus Kraemer.

One distinction that I see very clearly between this case and Shelley is that, in Shelley, we had -- we're dealing with a constitutionally protected right.

There, we had a willing buyer and a willing seller in a completed contract.

On the other hand, here, we do not have -- we only have one willing party.

The other is totally unwilling.

He seeks to assert his right of private choice.

The common law gives him that right.

It gives -- the constitution does not give the petitioners in this case any constitutional right to go on private property against the will of the owner to make the contract.

I think there is a basic distinction between this and Shelley.

Chief Justice Earl Warren: Were there any signs or anything posted to the effect that colored people were not be admitted to the park?

Mr. Robert C. Murphy: No, sir, not to my understanding.

Chief Justice Earl Warren: How would they know then that they weren't welcome?

Mr. Robert C. Murphy: I think it was simply understood because of the long practice of the parks in 51 years of fostering segregation.

Chief Justice Earl Warren: If they were strangers to the community and they walked in there, would that make a difference in your case?

Mr. Robert C. Murphy: Probably not, in the ultimate result, if the private property owner did not want them there and asked them to leave.

Chief Justice Earl Warren: But, so far as going into the property is concerned, there was no trespass, no violation.

Mr. Robert C. Murphy: Simply entering, no.

Chief Justice Earl Warren: No.

It was only when they refused to get out when told to do so --

Mr. Robert C. Murphy: Yes, sir.

Chief Justice Earl Warren: That the offense rose.

Mr. Robert C. Murphy: Yes, sir.

Chief Justice Earl Warren: Yes.

Mr. Robert C. Murphy: We feel in the case of Griffin versus Collins, which is a civil side of this particular case that we have before the Court now, Chief Justice Thompson had the same question that is now being raised and I'd like to quote very briefly from his opinion.

He said “simply granted the right of the proprietor to choose his customers and to eject trespassers, it can hardly be the law, as plaintiffs contend, that the proprietor may use such force as he and his employees possess but may not call on a peace officer to enforce his rights.

We subscribe to that.

We think that all has been done here and I'm borrowing now from the government's amicus curiae brief, we simply recognize, and given scope to this concept, that in a civilized community where legal remedies have been substituted for force, private choice necessarily depends upon the support of sovereign sanctions.

The action of the state here is entirely neutral.

There's no policy.

There's no custom.

There's no law that requires segregation.

Their action has been entirely neutral.

Now, against this background of no law, no policy, no custom, we come to the question, I think, the heart of the matter is the role played in this by Deputy Sheriff Collins, as he is now known, prior to the --

Chief Justice Earl Warren: Is what you say --

Mr. Robert C. Murphy: As he is now known.

At one time, Your Honor, the only one that knew he was a Deputy Sheriff was himself and that, in the case below, the fact of his holding a special deputy sheriff's commission was volunteered by him and that appears at R14 of the record.

Chief Justice Earl Warren: I thought that Mr. Rauh pointed out that your own warrant of arrest, your own warrant of arrest referred to him as – as the Deputy Sheriff who ordered him off the property.

Mr. Robert C. Murphy: Well, he was a Deputy Sheriff and he did go --

Chief Justice Earl Warren: Well, you said it didn't become known until his own admission at the trial.

Mr. Robert C. Murphy: Well, perhaps I should rephrase that.

It was important in anyone's mind --

Chief Justice Earl Warren: Why did they change their warrant of arrest then if it wasn't important to them?

Mr. Robert C. Murphy: Well, that may have appeared important at the lower Court trial to someone but --

Unknown Speaker: What did the badge say?

Mr. Robert C. Murphy: The record does not say what it says, but I did find out, Your Honor, that the badge says “Special Deputy Sheriff Montgomery County,” and it's a rather --

Unknown Speaker: [Inaudible]

Mr. Robert C. Murphy: Yes, sir.

The record doesn't show.

Unknown Speaker: [Inaudible]

Mr. Robert C. Murphy: The record simply says that I was wearing a badge.

Unknown Speaker: [Inaudible]

Mr. Robert C. Murphy: Well, he volunteered in his testimony that he was a special --

Unknown Speaker: Didn't he have it on the badge, special deputy sheriff?

Mr. Robert C. Murphy: Well, after he told people he was a special deputy sheriff, yes. Prior to that time, it is true that when he arrested and took the petitioners to the police station, a warrant was filled out in which his capacity as a special deputy sheriff was indicated.

Chief Justice Earl Warren: Well, how could anyone fail to know if he had it on his -- on the outside of his shirt, a Special Deputy Sheriff of Montgomery County?

Mr. Robert C. Murphy: There's no evidence that he had it on the outside of his shirt.

We can presume that.

There's no evidence what the badge was.

I think we could concede --

Chief Justice Earl Warren: But you told us what --

Mr. Robert C. Murphy: That he had a badge.

Chief Justice Earl Warren: You told us what it was.

Mr. Robert C. Murphy: Yes, sir, but it's not in the record.

I'm not now arguing that --

Chief Justice Earl Warren: But why are you --

Mr. Robert C. Murphy: He had a tin badge that he, himself, bought from some place.

Chief Justice Earl Warren: Beg your pardon?

Mr. Robert C. Murphy: I said I'm not now arguing that he had some badge that he himself may have bought or conjured up and put on himself without authority.

Chief Justice Earl Warren: Well, isn't he -- isn't the Deputy Sheriff, whether he's special or not, entitled to wear the badge of his authority?

Mr. Robert C. Murphy: Yes, sir.

Chief Justice Earl Warren: Well, why did you say without authority?

Mr. Robert C. Murphy: Perhaps I'm getting neither ahead of myself or behind myself.

I -- in the beginning of this trial, this Mr. Collins -- Francis Collins was known and throughout the trial, as the transcript will indicate, he was always Lieutenant Collins.

Now, Lieutenant Collins was a Lieutenant in the National Detective Agency which was a private detective agency and, under the laws of Maryland, they have absolutely no police power, no more than --

Justice William O. Douglas: Like a Kentucky Colonel.

Mr. Robert C. Murphy: That's right.

Very – [Laughter] very frequently, these gentlemen fashioned themselves as police officers, while they're not.

Now, it may well have been, and the record does not show this either, upon whose application Mr. Collins was deputized.

Now, it seems to be assumed that he was deputized upon the application of a park because he was a deputy sheriff in and for the park.

Chief Justice Earl Warren: What difference would it make if he was the Deputy Sheriff?

Mr. Robert C. Murphy: Well, I think, Mr. Justice, that the basic distinction here is that the government and the petitioners are trying to conjure up some picture of the State of Maryland colluding with the park.

Here is the authority of the State of Maryland to perpetuate a racially discriminative policy.

This is not true.

The words are used, I think, in the government's brief, amicus curiae that the State of Maryland prostituted its police power to the private purposes of the park.

Chief Justice Earl Warren: Well, suppose it wasn't done by the park at all, but suppose it was a policeman who was doing what they call moonlighting, working on off hours at some park or dance hall or someplace like that, then he did have -- but he have his badge on and had the power of a police officer, what difference would it make?

Mr. Robert C. Murphy: Well, is this truly state action?

Chief Justice Earl Warren: I beg your pardon?

Mr. Robert C. Murphy: Would that truly be state action?

Chief Justice Earl Warren: If he acts as a policeman, I would think it would be.

Mr. Robert C. Murphy: Would that be, in the words of the Wilmington Park case, state action to some significant extent? Would it be significant?

Chief Justice Earl Warren: It would be pretty significant if a man comes around with any kind of uniform and has a badge on that says Deputy Sheriff and says “get off of this property or I'll arrest you.”

It's significant in that case.

Mr. Robert C. Murphy: In this case, Your Honor, he did not say that until after he consulted with the park management.

Chief Justice Earl Warren: What difference would that make?

Mr. Robert C. Murphy: Well, it might make a difference.

I think --

Chief Justice Earl Warren: In so far as --

Mr. Robert C. Murphy: It may seem in the same position as any other police officer and the result -- the ultimate result of what occurred.

Chief Justice Earl Warren: Well --

Justice Arthur J. Goldberg: Mr. Murphy, as I follow you, when you said the first time reference has made, the Deputy Sheriff Collins sometime in the trial or [Inaudible], I'm referring to the matter of the transcript as to the [Inaudible] process.

First of them, as stated in page A of the transcript when he filed his first application [Inaudible] of the deputy sheriff, the first warrant that was issued, the state warrant [Inaudible] they referred to him as the sheriff.

On page 3 of the [Inaudible], they referred to him as deputy sheriff.

On page 3, again -- now the state attorney holding the case, on page 3 of the record, he reversed it and [Inaudible] the deputy sheriff.

He said on page 3, [Inaudible] the defense counsel made a motion to dismiss on this ground.

He fairly stated [Inaudible] directly, and declared void by the record right from the onset of the trial?

Mr. Robert C. Murphy: Well, it seemed to me that it did not take it on any importance until we're at the appellate level.

Justice Arthur J. Goldberg: Could you say that if they have a motion to [Inaudible], the counsel [Inaudible]?

Mr. Robert C. Murphy: Very frequently --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert C. Murphy: Very frequently, a gentleman who has a uniform on, such as Lieutenant Collins had, he was known to be a private detective in the minds of many people, including police officers, they are thought to be a police officer.

Justice Arthur J. Goldberg: But, the one thing that have a [Inaudible]

Mr. Robert C. Murphy: Including the --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Robert C. Murphy: Well, it isn't clear that he moved to dismiss on that precise ground.

Justice Arthur J. Goldberg: [Inaudible] to make by the state officer for the purpose of enforcing the policy of color segregation.

I submit to the court to [Inaudible] that the state policy is unconstitutional.

I don't know how he could make any claim.

Mr. Robert C. Murphy: Well, perhaps -- again, and this is perhaps speculative on my part, he was -- the private detective many he sought to be a state officer.

They are licensed to go into this business and thought by many to be a state officer.

I can conjure up a scene when these petitioners were taken to the police station of a warrant being handed to Mr. Collins and he just merely completed it, but even if he was and I think if we concede that he was a deputy sheriff and that it was important --

Chief Justice Earl Warren: And was wearing a badge.

Mr. Robert C. Murphy: And was wearing a badge of his office, that he did ask his employer what he should do and was told to tell them the policy of the park and if they did not leave within a reasonable time, to arrest them.

It's precisely what he did.

He -- I think he finally acted no differently than any other police officer who call -- was called in the scene and perhaps he was already on the scene.

Chief Justice Earl Warren: Is that -- I'm just going to ask you this.

If -- is there any difference?

Did he have any different power by reason of the fact that he was a deputy sheriff than if he had not been and had only been a lieutenant of this --

Mr. Robert C. Murphy: Yes, that's the difference between chalk and cheese.

As a private detective, he had no police power.

Chief Justice Earl Warren: I beg your pardon?

Mr. Robert C. Murphy: As a private detective, he had no police power whatsoever.

Chief Justice Earl Warren: Yes.

Mr. Robert C. Murphy: As a special deputy sheriff, he possessed the power of a deputy sheriff who in turn has the powers of a sheriff which are common law powers of being a conservator of the peace, full powers of arrest --

Chief Justice Earl Warren: Yes.

Mr. Robert C. Murphy: On the premises.

Chief Justice Earl Warren: Yes.

Mr. Robert C. Murphy: A major difference.

Chief Justice Earl Warren: Yes.

If he had not had this power, he could not have arrested in this place.

Mr. Robert C. Murphy: He could not have arrested and perhaps this is significant because he did not act as a police officer.

If he was acting as a police officer, a warrant would have been totally unnecessary.

This was a misdemeanor committed in his presence.

Chief Justice Earl Warren: But did he get a warrant before he arrested the man?

Mr. Robert C. Murphy: No, sir.

Chief Justice Earl Warren: He took them to jail.

Mr. Robert C. Murphy: He arrested him first.

Chief Justice Earl Warren: He took him to jail --

Mr. Robert C. Murphy: I think we're using that --

Chief Justice Earl Warren: Then got the warrant, didn't he?

Mr. Robert C. Murphy: If we use the word “arrest” in its common connotation, he withheld -- were restrained of their liberty.

They were very happy that this occurred because that's precisely why they came to the park, to get arrested, but he went, as any other private citizen, and had a warrant sworn out.

Our Court of Appeals took the position in effect that he was exercising no state authority that -- or if he was exercising state authority, this did not detract from his role as an agent of the park.

Justice John M. Harlan: Perhaps I misunderstood your answer to the Chief Justice. I thought you said first power arrest in this case stemming from his authority as Deputy Sheriff.

Mr. Robert C. Murphy: It did.

However, he did not exercise it in the traditional sense.

If a misdemeanor is committed in an officer's presence, he arrests and very seldom, if ever, gets a warrant.

In this case --

Justice John M. Harlan: Well, supposing this man had been properly deputized, supposing he simply been a detective, a private detective, could he have arrested this man -- this --

Mr. Robert C. Murphy: It would have been an un --

Justice John M. Harlan: Could he have made this arrest with the request of the owner?

Mr. Robert C. Murphy: Not under Maryland law, the arrest would not have been valid because there was no breach of the peace involved in this.

Justice John M. Harlan: Your Court -- your State Court seems to have made otherwise.

Mr. Robert C. Murphy: Well, that's a matter of some embarrassment to me.[Laughter]

Justice John M. Harlan: Well, whether embarrassing to you or not, what's the Maryland law?

Mr. Robert C. Murphy: The Maryland law, I think, is as is stated in our brief.

Justice John M. Harlan: Do you think the Court in its affirmation --

Mr. Robert C. Murphy: Unless the Court of Appeals had this in mind that a breach of the peace was eminent because there is some evidence that there was a milling crowd because of this breach of the peace, this threatened breach of the peace, then the private citizen had the power of arrest.

Now, I don't know but if we take out totally this idea of an eminent breach of peace, I think the law is as stated in our brief.

Justice Arthur J. Goldberg: Do I understand correctly that you're saying that your client did not arrest the man without the warrant and amended this?

Mr. Robert C. Murphy: Well, certainly from a legal standpoint, he arrested them.

He might, in his own mind and in the park's mind, felt that there was no arrest, but as you and I know it, there was restraint of the liberty of the petitioners and henceforth an arrest.

Justice Arthur J. Goldberg: Do you say that [Inaudible]?

Did he testify that he arrested them?

Mr. Robert C. Murphy: He did say that.

Private detectives are forever arresting someone, but they have no authority to arrest.

Justice Arthur J. Goldberg: Are you saying there's no arrest in the park?

Mr. Robert C. Murphy: No, sir, I'm not saying that.

I'm saying that an arrest undoubtedly took place at the time that Lieutenant Collins took these petitioners under his wing or under his charge, but whether the arrest was lawful or unlawful at that point, he did get a warrant which indicates --

Justice William J. Brennan: Are you saying he would not have done -- or he would have done exactly what he did do even if he had not been commissioned as deputy sheriff?

Mr. Robert C. Murphy: I think he would have had to do that.

I think the fact that he went and got a warrant indicated, at least in his own mind, that he was not arresting as a police officer.

Now, the fact that the warrant say that he was Special Deputy Sheriff Collins, we don't know who completed those warrants.

It could have been an individual who knew him as such, but you can't --

Justice William J. Brennan: Maybe someone who looked at his badge.

Mr. Robert C. Murphy: Perhaps. [Laughter]

Justice William J. Brennan: But I don't think that it alters the picture because the final result is the same.

Chief Justice Earl Warren: Mr. Murphy, may I ask you this.

What was the date is this offense, the alleged offense?

Mr. Robert C. Murphy: June 30, 1960.

Chief Justice Earl Warren: And what was the date of the state warrant, the warrant that he got out for his arrest?

Mr. Robert C. Murphy: I think the same night.

Chief Justice Earl Warren: Same night?

Mr. Robert C. Murphy: Same night.

Chief Justice Earl Warren: I see, but when was it -- when did they file it?

Mr. Robert C. Murphy: I think it was August 4.

Chief Justice Earl Warren: Why that delay between June 30 and August 4?

Mr. Robert C. Murphy: They prayed a jury trial, I understand.

Chief Justice Earl Warren: I beg your pardon?

Mr. Robert C. Murphy: They prayed a jury trial.

Chief Justice Earl Warren: I guess I don't understand your procedure.

That's what -- I was just wondering if a month and almost a week later seems rather a long time in which to file a warrant that was issued as a result of an arrest in a misdemeanor case.

Mr. Robert C. Murphy: Well, ordinarily, these cases are tried at the magistrate level, but you can pray a jury trial that was done -- as was done here, was tried in the Circuit Court, hence, this delay in trial.

Chief Justice Earl Warren: I see, but they don't file the warrant until the trial?

Mr. Robert C. Murphy: No, I think they did.

Chief Justice Earl Warren: I thought the trial --

Mr. Robert C. Murphy: Excuse me?

Chief Justice Earl Warren: In other states I know they file it as soon as it's sworn to.

Mr. Robert C. Murphy: I would like to point out also that -- some suggestion that the park paid Officer Collins, that is not true.

Officer Collins was not in the employ of the park in any traditional sense.

He was employed in National Detective Agency.

His loyalty was to the National Detective Agency.

Chief Justice Earl Warren: Then he didn't owe any duty to the park management.

Mr. Robert C. Murphy: I think he did, but he owed his employer's duty to the park management.

Chief Justice Earl Warren: But, then there was a necessary agency between him and --

Mr. Robert C. Murphy: Yes, sir, but --

Chief Justice Earl Warren: It wouldn't make any difference, would it, if he acted through them whether he's employed by the agency or by the park?

Mr. Robert C. Murphy: Well, the suggestion here, again, is made that this is some sort of an alliance between Collins and the park to perpetuate the park's policy that he was like a robot.

He did precisely what the park told him because he was paid by the park.

He could not exercise any independent judgment.

Chief Justice Earl Warren: Well, you say here that that's all he was doing, don't you?

He was following the orders of the park.

Mr. Robert C. Murphy: No, sir, I do not, I'm saying that he was -- there's nothing in the record to show that he was hired for any reason other than the normal reason that you hire an agency for the protection of the park to maintain the peace and good order on the premises.

Chief Justice Earl Warren: But, my point is -- my point was this, what I was going to ask you about.

You say that he was not acting as a peace officer, but all he was doing was acting under the orders of the park.

Mr. Robert C. Murphy: Well, I say that, on the evidence before the Court, it could and was concluded by our own Court of Appeals that he was exercising no state authority.

He had it, but he didn't exercise it in this particular situation.

Chief Justice Earl Warren: But he couldn't have acted as he did if he didn't been an officer.

Mr. Robert C. Murphy: Well, I think that anyone can make an unlawful arrest.

The simple fact that he said “I arrest you” does not indicate, at least to me, that he means that he is arresting in his public capacity.

Chief Justice Earl Warren: But we're concerned here whether the arrest was unlawful or not.

Mr. Robert C. Murphy: Well, I think --

Chief Justice Earl Warren: That's the ultimate issue, isn't it?

Mr. Robert C. Murphy: Not entirely, I think not.

I think that the ultimate issue here is, was there any state action involved which, to some significant extent, supports a private policy of racial discrimination.

I could very well see, Your Honor, if we had some collusive arrangement between the State of Maryland using special deputy sheriffs, appointed upon the application, and an employee of a private entrepreneur who wants to practice racial discrimination an very unholy alliance.

But, these facts --

Justice Tom C. Clark: That's not everyday though, is it?

I don't mean the collusion part, but the regular business is, isn't it true, protecting like a night watchman and things of that kind?

The state, under deputy -- the sheriff locally will deputize a man in an instance of an employer or in the interest of an agency?

Mr. Robert C. Murphy: Yes, sir.

That is certainly true.

Well, we have a state --

Justice Tom C. Clark: But you say there's no significance between that and that they did not deputize him?

Mr. Robert C. Murphy: No, I think there is significance.

Justice Tom C. Clark: Why do they do it?

Mr. Robert C. Murphy: Well, I think that's a question as to who did it here.

It's another problem.

Was it done by the park or was it done by Officer Collins in his own individual capacity so that he would be a more effective individual on his job?

Was it done by his employer, the Detective Agency?

Justice Tom C. Clark: As a matter of fact, he'll do it in order to have some dignity of the law to hire that particular person live up to --

Mr. Robert C. Murphy: I think that's largely true.

I might say that the State of Maryland has a statewide Act whereby the governor of the state commissions special policemen for certain types of corporations upon the application of the corporation, railroad corporation, steamboat, it's been broadened, recently, to include most any type of corporation, mercantile included.

It would not be broad enough to encompass this type of facility.

Chief Justice Earl Warren: But that's for the purpose of giving them a police power that they wouldn't have if they were simple night watchman or --

Mr. Robert C. Murphy: I think that's the ultimate effect, whether that's the purpose would be questionable.

We feel, if Your Honors please, the viewing all the circumstances together did not entirely clear that -- it's not clear at all that Officer Collins -- Lieutenant Collins was exercising any state authority and, even if he was exercising state authority, I think the ultimate effect is no different and if a police officer was called to the scene and asked the issue at the instance of the private power to arrest, as was done in this particular case.

The --

Justice William O. Douglas: Suppose that this -- suppose we had a different constitutional provision involved.

Suppose the petitioner was ar -- had been arrested in this way by this man for making a speech and have been convicted by the Maryland Courts and have been sustained by the Court of Appeals.

Would that be state action?

Mr. Robert C. Murphy: It would the same type -- type of state action that would be involved here, no greater.

It might be innocent state action, I don't know if there's a distinction between innocent or knowing and unknowing state action.

It would seem to be when the ultimate result is being considered.

I'd like to just, finally, to point out that the record does indicate very strongly that Officer Collins, whatever his capacity, acted in this particular situation after conferring with the park management.

He was told by the park management that he was to give the petitioners an opportunity to leave, which he did, and, following their refusal to leave, he arrested them just like any other police officer.

Chief Justice Earl Warren: Mr. Rauh.

Rebuttal of Joseph L. Rauh, Jr.

Mr. Joseph L. Rauh, Jr.: First, just think we ought to just clear up once more, Mr. Justice Goldberg did it.

I'd like to do it again just to who this man, Collins, was.

If you look at A, first place, Mr. -- my brother here said that he was not arresting as a police officer.

A makes clear that he was because, after the words in the third line on page A “Deputy Sheriff,” it says “and as such.”

They stuck the word the -- you didn't have to stick in the word there “as such” to make it as clear as a nose on your face but it's what they did.

“As such” he was acting as a police officer.

Then, on page 14, if Your Honors would do me the courtesy of turning to page 14, Mr. Murphy suggested that there was no evidence he was -- he had this badge on the outside.

May I read the quote?

May I read Mr. Collins' testimony?

It said “what uniform?”

“I was in uniform.”

“What uniform was that?”

“Of the National Detective Agency, blue pants, white shirt, black tie, and white coat and wearing a special deputy sheriff's badge.”

The word “wearing” is there.

Now, I'm presuming that the word “wearing” does not mean on the inside, which would be a most uncomfortable way of having a deputy sheriff's badge.

Chief Justice Earl Warren: here is that now?

Mr. Joseph L. Rauh, Jr.: Excuse me, sir, on page 14 of the record.

Chief Justice Earl Warren: 14.

Mr. Joseph L. Rauh, Jr.: About the sixth or seventh of the line, “wearing a special deputy sheriff's badge.”

Then, Mr. Murphy suggests that maybe we didn't have something to -- the park didn't have much to do with this man.

And, if you'll go down just about six more lines, it says, question, “and specifically by what two organizations are you employed?”

“Rekab Inc. and Kebar Inc. which are the two corporations which own Glen Echo.”

Then, on page 55 of the record, if Your Honors please, which leaves any -- which removes any last doubt about who was running Lieutenant Collins, “does the National Detective Agency,” right at the top of page 55, “make their employees available to you and you direct them as you see fit?”

“You,” this is a question to the manager, “direct them as you see fit.”

“That is correct.”

In other words, there is no question that this man, Collins, had the badge on his shirt and was under the direction of the management, and you get a confluence of state and private power to discriminate against these people and I don't think there is -- anything goes beyond that.

Mr. Murphy suggested that -- I think this -- I don't know, it was said just at the end of the sentence, but I did want to correct it, that this was -- that they -- precisely why they came to the park was to get arrested.

This is not correct, if Your Honors please.

On page 61 of the record, a witness testified on this very point.

Towards the end of page 61, a witness who had been there as part of their group said “you thought you would be able to use the facilities of Glen Echo Park.”

“I thought I might.”

This, in fact, is the truth.

They wanted to use them.

They wanted to breakdown segregation.

They didn't know whether they would or they wouldn't.

The truth of the matter was, and the record is clear on this, they honestly didn't know what would happen.

It has been the experience in the last year since the City of Movement started but, very often, when people went and it was finally -- the management finally had to make the final decision, they made the honorable one.

And, there was a chance here and in fact, within a year, they did make the honorable one and it was opened up.

Now, just to come back, so much for Collins and that part of the case, to come back to Shelley and Kraemer, the Chief Justice asked Mr. Murphy for a distinction of Shelley and Kraemer.

The suggestion is that, in Shelley and Kraemer, there was a willing buyer and a willing seller.

Here, that there is an unwilling seller.

That is a difference and I respectfully suggest it is a most meaningless difference because in Shelley against Kraemer, there was a property right, just as there is here.

Who was the property right in?

It was in the covenanter who wanted to keep Negros from being his neighbors.

There was a covenant in Shelley and Kraemer where a man said to another man “we agree that no Negro will go on your property because I don't want a Negro next to me.”

The second man violated his contract and sold.

This Court held that, although that was a property right and this Court wasn't saying it was illegal to try and have that covenant, you would neither allow an injunction against that or damages for the breach of that.

That's exactly what we have here, under this half of the case, that this man here, this owner of Glen Echo, had a right to say no Negros but he didn't have a right to get the state to enforce it for him anymore than the covenanter had a right not to have a Negro neighbor, had a right to have the state enforce that for him.

Thank you.

Print this transcript Transcript: 

Argument of Joseph L. Rauh, Jr.

Chief Justice Earl Warren: William L. Griffin et al., Petitioners, versus Maryland.

Mr. Rauh, you may proceed with your argument.

Mr. Joseph L. Rauh, Jr.: May it please the Court.

This case is here on re-argument.

Though the legal issues are of moment and importance, the facts are simple and largely undisputed.

On January 30, 1960, a number of persons, Negro and White, including the five petitioners here, gathered outside of Glen Echo Amusement Park, the major amusement park serving the District of Columbia.

It is in Maryland.

A picket line protesting the assumed position of the park of segregation was setup, and shortly thereafter, about 8:15 in the evening, the five petitioners, young Negroes, went into the park.

There was no obstruction as there are no tickets or other entry required for gaining admission to the park.

Justice Arthur J. Goldberg: And they have previously parked the picket line?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

They went on to the carousel and took their places on the horses and other animals there.

Justice Potter Stewart: They needed tickets for that, didn't they?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor and they --

Justice Potter Stewart: They had them.

Mr. Joseph L. Rauh, Jr.: -- had tickets purchased by a White friend and it is not contested that the tickets were freely transferable.

So, on the carousel, the five Negroes had the tickets that were required and waited to ride but they didn't ride.

The carousel didn't move and a man named Francis J. Collins walked up to them.

He had on the uniform of the National Detective Agency, a private detective agency, and he was employed by the park through a contract with the National Detective Agency.

He had on the badge of Deputy Sheriff of the State of Maryland, and he said to these five petitioners "We do not permit Negroes on the property here or on the rides.

I will give you five minutes to leave the property."

In an orderly fashion, there is no question about this, they sat quietly on the carousel.

Approximately five minutes thereafter, he arrested them.

He took them to the Bethesda police station and, there, he swore out a warrant.

He filed an application for a warrant and the Justice of the Peace issued the warrant and charged them under 27 Maryland Code, Section 577, for wanton trespass.

Justice John M. Harlan: Wasn't there an intervening episode? Before he arrested them, he consulted with the park owners --

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Justice Hugo L. Black: -- on the warrant of arrest?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor, that's correct.

Now, at -- and I was just exactly at that point.

At the trial, there was testimony of all three, of Lieutenant Collins that he had instructions from the first to arrest if Negroes came on for trespass, that he had instructions, that those instructions came from the owner, Mr. Baker, that he also had the same instructions from the manager, but it is correct that he went to the manager and said “these five Negroes are on there.

What shall I do?”

And, he said “arrest them.”

That is correct, but all three - Collins, Baker, and Warren Hoff, the manager, testified it was the policy to keep them off solely because they were Negroes and the arrest was to be made by Lieutenant Collins solely where it -- because they were Negroes and Lieutenant Collins made the arrest solely because --

Justice Potter Stewart: You call him Lieutenant Collins.

What was he a lieutenant in?

Mr. Joseph L. Rauh, Jr.: He was -- that was the title assigned to him as head of the police force of the Glen Echo Park.

I think it's someone like a Kentucky Colonel, sir.

Chief Justice Earl Warren: Mr. Rauh, do you consider any significance that when he swore to the complaint, he swore to it as a deputy sheriff or --

Mr. Joseph L. Rauh, Jr.: I think it evidences the whole picture.

He wore the badge of the deputy sheriff.

He went to the police station and made an application as a deputy sheriff.

And then the warrant itself says that it was sworn out by the deputy sheriff.

In other words, there was a continuous -- as I will come to in my argument, there is a continuous confluence of private and public authority in this case.

The --

Justice Tom C. Clark: You concede though that he was acting out instructions of the management.

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Now, at the trial, as I say, the -- it was very simple and the federal points were all raised.

There's no question about that.

The five young Negroes were convicted and fined of trespass.

The Court of Appeals of Maryland upheld the convictions on the ground that the discrimination by the state, if such there was, was one step removed, that the action here was one step removed from state enforcement of a policy of segregation.

Now, if Your Honors please, we have two separate arguments which we make in support of our position that these convictions must be reversed under the Fourteenth Amendment.

First, there was active state support of private discrimination forbidden by this Court.

And, second, and the other half, the first argument assumes a private right to discriminate but we say, under the first argument, private right to discriminate, though there maybe, the state may not give its active support to that private right to discriminate.

And, secondly --

Justice Arthur J. Goldberg: Mr. Rauh, though there maybe or though there is.

Mr. Joseph L. Rauh, Jr.: My secondly was going to answer that, if Your Honor please.

And, secondly, though there is no private right to discriminate, in other words, we contend, Your Honor, so that obviously my first answer is “though there maybe” would have been a better way to say the first point.

We say that though there may be a private right to discriminate, there is no right in the state to give active support to that discrimination.

But, second, we challenge under the rule of law in this country, under the Fourteenth Amendment, that a state can create or recognize a private right of discrimination.

It will not be necessary, in my judgment, for the Court to reach the second point, because I believe and submit that the first point, which I'd like to develop now, is so complete and total and clear under the precedents of this Court.

Nevertheless --

Justice Potter Stewart: Just so I can get your second point.

When you talk about discrimination, are you limiting it to racial discrimination?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

I should have made that clear.

I --

Justice Potter Stewart: You're not talking about a person's right to be discriminating.

Mr. Joseph L. Rauh, Jr.: No, I am saying that, under the Fourteenth Amendment, no state may create or recognize, this is the second point we -- I -- as I say again I want to be clear that I don't think this Court will ever reach this point --

Justice Potter Stewart: I understand.

Mr. Joseph L. Rauh, Jr.: -- in this case, but that I believe, and I think it illuminates the first point and shows its simplicity that no state may create or recognize a private right of racial discrimination.

Justice Potter Stewart: Racial discrimination.

Justice William J. Brennan: Mr. Rauh, are you going to suggest any view of the Solicitor General's approach to this thing?

Mr. Joseph L. Rauh, Jr.: If --

Justice William J. Brennan: Are you going to suggest any view on your part of the Solicitor General's approach to this case?

Mr. Joseph L. Rauh, Jr.: It seems to me that the Solicitor General has argued the vagueness point in great depth.

I think it would be correct except for one thing.

It was not raised by us below and I feel the most I could do is refer to it as background in a footnote, which we do on page 27 of our brief, that I do, in all canter, have to report to the Court this matter was not raised below.

Justice Arthur J. Goldberg: The part of your argument, part of your brief, the second page of your argument in which it overrules the rights maybe.

Mr. Joseph L. Rauh, Jr.: I don't believe that will be necessary, if Your Honor please, but if that -- if the Court determined that were necessary, I think the Court made an assumption in the civil rights cases, which I'll come to, which require -- which do not require its overruling but, as I say, I don't think we're going to get there because I think I can persuade Your Honors, if I maybe so immodest, Mr. Justice that the first point is clear and, as I might say, rather an a fortiori case under the previous decision.

Now, look at this situation --

Justice Arthur J. Goldberg: Hold on.

Before you do that, on either point that were mentioned, you refer both on reporting to them.

Are we, therefore, to distinguish a fortiori in the Thirteenth Amendment of the indictment?

Mr. Joseph L. Rauh, Jr.: I could have, Your Honor, but it seemed to me that the same considerations that the Fifteenth Amendment would bring are fully encompassed.

The badge of humiliation, discrimination in a public accommodation is a badge of humiliation and inferiority.

Clearly, as such, it's a leftover part of slavery and clearly, as such, I could have raised it under the Thirteenth Amendment.

I think that badge of inferiority and humiliation, which this discrimination refers, is also invalidated by the Fourteenth Amendment.

Now, if Your Honors please, this is a simple case under the decided precedents of this Court.

No more, we say, may the State of Maryland bring a judicial trespass action against one who seeks service at a public accommodation than the State of Missouri in Shelley and Kraemer could bring a judicial ejectment action to remove the Negro from the land.

We suggest that this is a far stronger case than Shelley against Kraemer, for here, the criminal law of the state is being brought down upon a man seeking service and, here, it is not as in Shelley and Kraemer where the court simply were open to the man.

Furthermore, the right in Shelley and Kraemer was a higher right than the right here.

The right in Shelley and Kraemer, which this Court overruled, which this Court refused to honor, was the right -- the contract right of a man to choose his neighbors.

And, I most respectfully suggest that the overwriting of that contractual property right to choose one's neighbor in Shelley and Kraemer makes it easy and simple and less far-out-too-over to say that an owner of a store may not refuse a sandwich to a person.

I suggest to Your Honors that there is a great deal or higher right in the covenant that was overruled and invalidated in Shelley and Kraemer that could not be enforced in Shelley and Kraemer than the right we have here.

Justice Potter Stewart: Mr. Rauh, isn't it accurate to say that what was vindicated in Shelley against Kraemer was the right of the owner of property to alienate it, deal with it as he wished in defiance of a racially restrictive covenant and what is involved here on the part of your opponent, as it is asserted, is the right of the owner of property to deal with it if he wishes?

Mr. Joseph L. Rauh, Jr.: I think that is a correct statement, Your Honor, but it just needs to go one step further and look at the right of the man who had a contract right not to have a Negro next to him.

That contract right not to have the neighbor was said by this Court to be unenforceable, and I certainly would suggest to Your Honor that it is a greater right to have your neighbors those you want and to have your customers those you want, because they're saying to the public "thousands of you people come to Glen Echo and ri-- and take part in our rides but no Negroes."

And, I would respectfully suggest that Mr. Baker, the owner who makes this decision, to him, I can't believe who rides on his merry-go-round to be as high a right as to Mr. Baker's neighbors.

And as Your Honor said you could not enforce Mr. Baker's property right to his neighbors and I suggest you -- that the same point, and only more so, as you cannot enforce a property right, if there is one because this is my first half of the argument and I'm assuming that you're right, if there is one, it cannot be enforced here.

Justice Potter Stewart: Who were the -- who were the parties in Shelley against Kraemer?

Who was Shelley and who were -- who was Kraemer?

Mr. Joseph L. Rauh, Jr.: Well, the ejector was the neighbor who had a contractual covenant with the man who sold the property to the Negro that the man wouldn't sell it.

He had a perfectly good covenant wer -- writing with the land, a perfectly good contract property interest, which this Court said may not be enforced because the Fourteenth Amendment won't allow the courts to do this and, by the same token, the Fourteenth Amendment will no more allow the criminal trespass action than a criminal ejectment action.

Justice Potter Stewart: The -- but the Negro buyer was not a party in Shelley against Kraemer, was he?

Mr. Joseph L. Rauh, Jr.: Yes, he was the defendant.

He --

Justice Potter Stewart: Was the seller?

Mr. Joseph L. Rauh, Jr.: He was the petitioner.

He was the buyer, the Negro buyer.

Justice Potter Stewart: And was the seller a party, the landowner?

Mr. Joseph L. Rauh, Jr.: No, the cov-- the ejectment action is brought by the neighbor who wants to get rid of the Negroes on the land.

Justice Potter Stewart: Against the buyer.

Mr. Joseph L. Rauh, Jr.: Now, that would be clear just from the conviction.

But, here, you have more.

Here, you have, from the minute this thing starts to the end, a-- just a confluence of public and private authority.

This sheriff was the day-to-day discriminator.

The sheriff was on the land.

He had the job of controlling the discrimination.

There never would have been a crime if it wasn't for this sheriff.

This sheriff said "get off the land."

It was only a crime after the sheriff had told them to get off the land.

It wasn't a crime before.

There is no suggestion it was a crime walking on.

The suggestion and the ruling of the Court of Appeals of Maryland is it's a crime not to get off and, when they don't-- and who made that crime?

The orders came from a sheriff of the State of Maryland.

Then, he goes, as I was questioned on this, then he goes to the police station.

He applies as a police officer, then, the warrant comes on application of a police officer.

Justice Arthur J. Goldberg: But it was amended.

The warrant was subsequently amended.

Mr. Joseph L. Rauh, Jr.: Oh, it was amended on the question of whether he was the agent of the owner.

They didn't have a crime the way they did it first because they said that he was sworn out by the deputy sheriff and then they had to say he was sworn out by the agent.

Justice Arthur J. Goldberg: That conforms to the language in effect.

Mr. Joseph L. Rauh, Jr.: Nothing could show, if Your Honor please, the mixture.

They had mixture of public and private authority better than they had to fix up their warrant to show he was the-- that the sheriff was an agent of the private authority here to do it.

Justice Arthur J. Goldberg: Well, that's what he was.

Mr. Joseph L. Rauh, Jr.: He were -- if I may, if you'll excuse the expression, I think M-- Lieutenant Collins was a double agent.

He was an agent of the state as a sheriff and he was an agent of the private person to handle their discrimination.

It just seems to me that this case is clear on Shelley but it's clear on two other cases of this Court.

It's clear on Burton.

I don't think the State of Maryland can lease its badge anymore than the State of Delaware could lease its property for discriminatory purposes.

Justice William J. Brennan: Do you have a right under Maryland law that you have to carry the badge, the sheriff badge, to make this arrest.

Mr. Joseph L. Rauh, Jr.: The Court of Appeals of Maryland said so and --

Justice Potter Stewart: But you have to have that into Maryland.

Mr. Joseph L. Rauh, Jr.: I would think so, Your Honor.

But it's not only Burton.

It's Lombard, even as late as this very year.

Lombard, the police said "we promise to deal with the sit-iners."

Well, here, there wasn't even a promise.

There was actual police dealing with the sit-iners.

So, just to conclude this point, it does seem to me that it's, as Justice Douglas put it that you couldn't license a man to serve Whites only.

Well, that's what the State of Maryland, in effect, is doing.

They're licensing and then they're making it possible through convictions, through sheriffs, to serve Whites only.

The obvious fact that you couldn't license a man to serve Whites only is really applicable here when, in fact, you license the man to serve the public and then you make it possible for him to serve Whites only.

Well, I-- as I say, I don't think we'd come to the second point but I do think it illuminates the problem and it is because of its illumination that I would so much like to dwell on it before--

Justice Arthur J. Goldberg: Now, before you leave assuming Shelley v. Kraemer is fairly different when, in Shelley v. Kraemer, the man who owned the property was (Inaudible) and, therefore, he has the right to make the decision to be engaged in a business deal of this kind, not enforcing the covenant which has been given to them?

They're very different.

Mr. Joseph L. Rauh, Jr.: There's --

Justice Arthur J. Goldberg: It doesn't (Inaudible) automatically goes and decide this case.

Mr. Joseph L. Rauh, Jr.: There is a difference, Your Honor, but I respectfully suggest the difference is in my favor, because, as you put it, you overlook or -- I don't mean you overlooked, and in that sense, I meant that it excludes the important fact in Shelley and Kraemer of the property right, which has always been enforced.

There's no question that if this property right were in any other fashion, it would be enforced.

I don't see what the willing buyer and the willing seller make any difference when you got an unwilling man with a property right that would always be enforced in our country that's never been challenged.

It can only be challenged under the Fourteenth Amendment and you overruled that property right not to have your neighbor.

And I respectfully suggest that it's a lot less to override the property right not to have customers than to override the property right not to have neighbors.

Now, if you want to say to me it's different, I would concede it was different.

Only, I would only contest that it's different in my favor, and I would respectfully suggest that there has been a lot of talk in the articles and so forth that there's something-- that there is some question about Shelley and Kraemer.

Well, as far as I know, and I think I have read all the relevant decisions of this Court, every time Shelley and Kraemer has been mentioned, it has been mentioned with a probation in the decisions of this Court, and there is no way to reach a result different than a reversal here without, in fact, questioning the result in Shelley and Kraemer.

Now, if Your Honors please, I would like to come to the second point. I do most seriously challenge that there is any private right to discriminate at a place of public accommodation.

Justice Arthur J. Goldberg: And now you talk about this issue before you said there is no private right to discriminate at a place of public accommodation.

Mr. Joseph L. Rauh, Jr.: If Your Honor please, and I was trying, without wasting time, to exclude the home problem, which seems to me, to raise contrary constitutional and policy questions and I --

Justice Arthur J. Goldberg: (Inaudible) will you reach it though?

Mr. Joseph L. Rauh, Jr.: Yes, I would exclude any place where the -- there was no invitation open to the public.

If, however, I invited all republicans into my home, I don't think -- I think I'd be waving my rights of privacy and so that --

Justice Arthur J. Goldberg: Are you (Inaudible)?

Mr. Joseph L. Rauh, Jr.: I don't believe so, Your Honor.

It seems to me that-- but I don't-- luckily for me, I'm-- I was-- the formula I gave covered the case involved which is that I challenge that there is any private right of racial discrimination in a place of public accommodation, and for this reason-- and, it seems to me, it's quite--

Justice Hugo L. Black: What constitutional provision do you rest on to draw that distinction?

Mr. Joseph L. Rauh, Jr.: The Fourteenth Amendment is con--

Justice Hugo L. Black: What part of it?

Mr. Joseph L. Rauh, Jr.: The Equal Protection Clause.

I respectfully suggest that the Equal Protection Clause prevents a state from creating or recognizing a private right to discriminate.

Now, law doesn't come from the heavens or the--

Justice Hugo L. Black: How about the church?

What about a church?

Mr. Joseph L. Rauh, Jr.: I-- again, I say that these borderline case -- but I don't believe the church has that right.

I don't believe the church has that right.

I think it can have only Catholics.

Justice Hugo L. Black: Does the constitution forbid the church--

Mr. Joseph L. Rauh, Jr.: I think--

Justice Hugo L. Black: -- to choose who will belong to it and who it won't?

Mr. Joseph L. Rauh, Jr.: On racial grounds, Your Honor.

This Court has made one thing clear, it seems to me, beyond peradventure of doubt and that racial discrim-- racial distinctions are the one type of distinction that you will not honor under any certainty, that race is the one--

Justice Hugo L. Black: If by a state.

Mr. Joseph L. Rauh, Jr.: By a state, and I shall respect--

Justice Hugo L. Black: You extend it, however, to pri-- to property owned by people, either an association or an individual.

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

On this ground, the law doesn't come from the heavens or out of the earth.

The law is created by the state.

Justice Hugo L. Black: That's the reason I asked you upon what specific constitutional provision--

Mr. Joseph L. Rauh, Jr.: The Fourteenth--

Justice Hugo L. Black: -- you rested for those distinctions.

Only, they did not come from the heavens but from the constitution.

Mr. Joseph L. Rauh, Jr.: The Fourteenth Amendment, but the law of the state cannot, under the Fourteenth Amendment, create or recognize a right of discrimination -- of racial discrimination, because it is the state then that is setting up this property right.

That's the state action as the state, whether it's by common law or statutory law, the state is creating and recognizing a right of discrimination and it's-- if the-- it seems to me that the words “may not deny protection, equal protection,” that the states may not deny it, by such, they may not create a property right to discriminate against Negroes.

Now, if I would-- I want to bring this back to Shelley and Kraemer.

If Shelley and Kraemer is correct both on its reasoning and its result, our case must be reversed on both.

In other words, if Shelley and Kraemer-- where that was an assumed private right to discriminate which could not be enforced in the courts, then you can assume a private right to discriminate here which cannot be enforced in the court.

But, I respectfully suggest there's a better view of Shelley and Kraemer.

There is a view of Shelley and Kraemer that there was no private right to discriminate, that the state had no right to create or recognize a restrictive covenant against allowing Negroes into the neighborhood.

In other words, that some of the criticism of Shelley and Kraemer, namely that that created a right, that there was a private right which couldn't be enforced, I most respectfully suggest that a better rationalization of Shelley and Kraemer might now be that the state couldn't create or recognize a restrictive covenant.

Justice William J. Brennan: Well, it didn't-- the state didn't create the covenant.

The parties did.

Mr. Joseph L. Rauh, Jr.: But the state created the substantive-- the common or statutory law which made that a right, and I'm respectfully suggesting that state action-- that it is state action when the state, either by its common law or its statutory law, either creates or recognizes the validity of that restrictive covenant.

And I am suggesting that whichever way you now look at Shelley and Kraemer, unless you're prepared to overrule Shelley and Kraemer, today, you want to look at it that its reasoning was correct that there was a right of discrimination but it couldn't be enforced, this applies here.

But, I am suggesting that there is a better part, that there is another and likely better view of Shelley and Kraemer that there wasn't any right in the first place, because the Fourteenth Amendment forbids the state in its action to create or recognize that restrictive covenant as valid even between the parties.

Chief Justice Earl Warren: Your argument would mean that, assuming that there -- assuming that there is a private right of discrimination virtually--

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Chief Justice Earl Warren: There would be a right of self-power to enforce that right.

The constitution permits-- forbids the creation of judicial remedy and plays itself out.

Mr. Joseph L. Rauh, Jr.: That's what Shelley and Kraemer has generally been interpreted to do, and that's the-- that is the hornbook interpretation of Shelley and Kraemer.

I was suggesting another interpretation of Shelley and Kraemer.

Chief Justice Earl Warren: I take it, the hornbook interpretation.

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

And, that is, I take it, the interpretation that has been given to Shelley and Kraemer is that there was a right to discriminate but that the state couldn't assist that and I'm suggesting--

Justice Byron R. White: Well, now, even under your second argument, you didn't suggest that the property owner couldn't put people off the property.

Mr. Joseph L. Rauh, Jr.: Yes, I do, under the second argument of the--

Justice Byron R. White: You say that he fre-- someone a-- then, you are suggesting that other people have the right and privilege of entering the property and, if they're prevented from doing it, then they have a cause of action against the property owner.

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor. I suggest that the right there that the state cannot recognize is the right to refuse to deal with people solely because of their color.

And I'm suggesting that the state may not either create or recognize that right and that, basically, Shelley and Kraemer makes more logic under such an interpretation than it does under the more customary interpretation.

Nevertheless--

Justice Potter Stewart: It would follow under your second argument then, Mr. Rauh, would it not, that if there's no right on the part of the owner of Glen Echo to discriminate, then there is a correlative privilege on the part of anybody who wants to enter to get state enforcement of his right to enter?

Mr. Joseph L. Rauh, Jr.: Not anybody who wants to enter.

Anybody who wants to enter and solely--

Justice Potter Stewart: Who was discriminated against because of his race?

Mr. Joseph L. Rauh, Jr.: -- kept out because of his race--

Justice Potter Stewart: Not for a--

Mr. Joseph L. Rauh, Jr.: The man has every right in this world, every right to make his choice on bowties or anything or regular ties or he can choose the ma-- his customers anyway he wants but there is one thing, and this eloquent language of this Court in Strauder makes it so clear, there is just one thing this Court will not recognize which are rights of discrimination because of race.

Justice Potter Stewart: So it would have followed that these petitioners could have gone, and probably should have gone, to the Maryland courts and brought an injunction action against Maryland.

Mr. Joseph L. Rauh, Jr.: We did go, Your Honor.

We did go to the Maryland courts and that case was finally thrown out we-- after the place opened up sometime later, but I believe there is such a right and maybe I'll be-- I want to make one thing clear.

Maybe I'll be back with some of these horrendous cases that have been suggested here, but I don't have them today.

Justice Potter Stewart: Well, you do have that under your second argument.

Mr. Joseph L. Rauh, Jr.: Under the second argument--

Justice Potter Stewart: Yes.

Mr. Joseph L. Rauh, Jr.: You have some of these points, but I don't have the church today.

I don't have the home.

I have the biggest place of public accommodation probably in this whole big metropolitan area where thousands of people are attracted daily and, of course, that supports the size and the place and the licensing and the regulation and the support of this place by the Government all adds to it and, as Mr. Justice Douglas made clear his position on a restaurant in a concurring opinion, that are licensed restaurant, here, you have 1,000 times licensed place.

It's licensed in every respect, regulated in every respect, supported in many respects.

In other words, their state involvement here, in addition to recognizing and creating this right-- this alleged right of discrimination, I see my light is on.

Justice William J. Brennan: Supposing the Glen Echo owner then so prosodically said “I'm going to exclude all people with red hair.”

Would he have the constitutional right to do that?

Mr. Joseph L. Rauh, Jr.: Again, I'm fortunate that I haven't brought-- I'm not here with that case, but the logic, I would say-- I would say that there is no necessary reason for saying that that is the same case as raised, because the point I would like to make clear is this Court's nontolerance of any racial classification.

This Court has upheld classification after classification, but there has just been one classification that's been inept to this Court and, as the Strauder case has said it more eloquently than I can, there, the situation simply was we will not recognize classifications based on color.

Justice John M. Harlan: But only so far at least in the realm of state action.

Mr. Joseph L. Rauh, Jr.: Well, as I was trying to suggest, Your Honor, I think I'm loaded with state action when you take the criminal conviction of the policeman and-- but even here where you have a right of discrimination, if there is a right of discrimination in the private party, it didn't come out of the air.

As this Court made clear in Erie and-- against Tompkins, law doesn't come out of the air.

It came from the state by either its adoption of the common law or its adoption of the statute and--

Justice John M. Harlan: That's just a roundabout way of saying that the state action isn't required.

Mr. Joseph L. Rauh, Jr.: If Your Honor-- I most respectfully suggest, I find state action in creating law which recognizes discrimination as much as any other type of state action.

I didn't-- I was not trying to make a roundabout way of saying state action isn't required because this -- the Fourteenth Amendment does say “no state shall” and I wouldn't want to be put in a position of say-- of trying to say those words were in there.

What I do say is that state action can be found in the creation or recognition of a private right of discrimin-- of racial discrimination because that right would not exist but for the action of the state in the adoption of its common law or statutory law.

Justice Potter Stewart: Mr. Rauh, just please sit down and, confining ourselves to your-- this-- your second argument.

I am correct, am I not, in my understanding that great many states have statutes forbidding racial discrimination in places such as Glen Echo?

Mr. Joseph L. Rauh, Jr.: 30, Your Honor.

Justice Potter Stewart: 30.

Now, under your second argument, all those statutes are entirely redundant, aren't they?

Mr. Joseph L. Rauh, Jr.: No, Your Honor.

That-- it wouldn't quite be true.

Statutes do more than recognized rights.

They carry-- they have methods of implementation.

For example, most of these statutes you can get damages under, they're in-- provide for injunctions by the attorney general of the state.

You might've asked me whether I thought the same.

It was unnecessary to pass upon the accommodation statute in Congress today because the same question would arise.

My answer is it wouldn't be necessary to declare the right because the right would be there but, certainly, the administration of that right, it would be well to have it spelled out, how you administer it, who's going to bring the suits, whether it's for damages, whether it's criminal, all of these other things can be spelled out by statute.

I'd say those statutes are all quite necessary even if this Court were to adopt the second climb of argument which, I have tried to make it clear, is not necessary because there is so much state action in the first line.

Justice Arthur J. Goldberg: Mr. Rauh, it would not be hard under state action concept, I believe it is a Thirteenth Amendment issue because there is quite a difference between the (Inaudible).

Mr. Joseph L. Rauh, Jr.: No, Your Honor.

It's an abolition of slavery and-- but I guess I thought I had gone far out enough with my suggestion but I do feel that I could but-- I would have done well to buttress with the argument you suggest.

Justice Arthur J. Goldberg: To go farther out in the argument on the Fourteenth, as you've recommend, the Fourteenth was then basically (Inaudible), and therefore, I would as say that chapters Thirteenth and Fourteenth both seem to pick the same thing that the (Inaudible).

Mr. Joseph L. Rauh, Jr.: If Your Honor please, I would've utilized that argument if I had thought of it.

Justice Arthur J. Goldberg: May I ask you one question about Maryland law.

May I ask you one question about Maryland law?

Most of the states provide that when a trespasser is on a man's property, the owner of the property can use such force as maybe necessary to eject him.

Is that the law of Maryland?

Mr. Joseph L. Rauh, Jr.: I believe so, Your Honor.

Justice Hugo L. Black: And suppose that the owner had ordered these people off and he had said if -- he assaulted them and maybe done something pretty bad.

In many cases, most of us are familiar with, assault has been pretty serious.

The defense has been “well, he was on my property and wouldn't get off.”

Could that Maryland law be unconstitutional in this case, if the owner had assaulted him and been tried for the assault or could the court have charged the jury, he had a right to use such force as necessary even to put him up-- putting him off by taking his life, if necessary to protect his property?

Would that be unconstitutional under your argument?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor, and I think, even under the first argument, the courts may not recognize the right of -- the private right of discrimination, as in Shelley and Kraemer, the Court was not allowed to recognize the private right of discrimination.

And, under Barrows, your case is really closer, if I may suggest, to Barrows than it is to Shelley against Kramer because, in Barrows, they said that -- this Court said that the courts of the state could not give damages, couldn't recognize this right to discriminate for damages that I am suggesting, they couldn't recognize it as a defense to a suit for assault and battery.

But, I would like to make this one other point about the self-help, if I might, Mr. Justice Black, and that's that there hasn't been self-help.

What has kept segregation alive in America today has been the state enforcement of private discrimination.

Justice Hugo L. Black: And we've held that unconstitutional, haven't we?

Mr. Joseph L. Rauh, Jr.: But it's going on everyday and--

Justice Hugo L. Black: I am -- but we've held that --

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.

Justice Hugo L. Black: -- unconstitutional.

Mr. Joseph L. Rauh, Jr.: And I'm only suggesting that once this Court makes clear that there'll be no police support to a refusal to serve, there'll be no dirty business of self-help.

That the proprietors do not engage in this dirty business of--

Justice Hugo L. Black: But you were wrong about the-- but you were wrong about the constitutional distinction between the home and place of business or church and so forth.

You happen to be wrong about that.

What help would a man who had a home have could he get from the government to eject somebody that was in his house he didn't want?

Mr. Joseph L. Rauh, Jr.: I believe, if Your Honor please, that a home has other constitutional guarantees which conflict with the Fourteenth Amendment.

Justice Hugo L. Black: Which ones?

Mr. Joseph L. Rauh, Jr.: The right of a homeowner which, I take it, goes back to English common law--

Justice Hugo L. Black: But the constitution--

Mr. Joseph L. Rauh, Jr.: -- that a homeowner's--

Justice Hugo L. Black: The constitution -- wrote a law for this country not based on the common law.

Mr. Joseph L. Rauh, Jr.: Well, the Fourth, the Second and Fourth Amendments certainly indicate that the whole doctrine that the right of a-- that the right of a man to treat his home as his castle is a right which is protected by our constitution against search and seizure and other -- for other infringements, and I would suggest that--

Justice Hugo L. Black: But you can't find anything in the Fourth Amendment, can you, to support your position you're taking here?

Mr. Joseph L. Rauh, Jr.: I am suggesting that a-- that there is a homeowner's right of privacy, which comes down through the British common law which has never been challenged in the United States and that the mistake that has been made in this case was eloquently made by the trial court, on page 74 of the record, when he said "this Court will follow the law that has already been adopted by it that a man's property is his castle."

I respectfully suggest that there couldn't have been a more eloquent mistake than that.

It is not a man's property that's his castle.

It's a man's home.

And, when you go beyond his home, into a place of public accommodation, all reasons for treating one's home as a castle are gone, namely, your right of privacy in your own dwellings and I--

Justice Hugo L. Black: The Fourth Amendment draws that distinction, doesn't it?

Mr. Joseph L. Rauh, Jr.: I'd say that it is implicit in the Fourth Amendment but, to my mind, the right of a--

Justice Hugo L. Black: But it protects-- protects the home from unreasonable search and seizure--

Mr. Joseph L. Rauh, Jr.: Yes.

Justice Hugo L. Black: -- but does not protect the place of business?

Mr. Joseph L. Rauh, Jr.: No, but there are different-- it protects everything against unreasonable search and seizure but there are differences in the way the legal system treats a home from the way it treats--

Justice Hugo L. Black: The legal system--

Mr. Joseph L. Rauh, Jr.: -- other things.

Justice Hugo L. Black: The courts have to treat it according to the proper interpretation of the Constitution, do they not?

Mr. Joseph L. Rauh, Jr.: I believe so, Your Honor.

And, it seems to me--

Justice Hugo L. Black: May I ask you if you see no difference between a-- you've said several times, about Shelley and Kraemer, that this-- I don't think this point has been discussed.

Do you see no difference between allowing a man to make a contract which, in perpetuity, ties up the property of everybody so that those who buy it and pay for it cannot sell it and the right of a man to exercise ownership over his home or his property at an exact time when he's claiming to a right that's being invaded?

Mr. Joseph L. Rauh, Jr.: I see-- make two suggestions to Your Honor.

In first place, Shelley and Kraemer is not a perpetuity right.

I think it's a very limited number of years--

Justice Hugo L. Black: -- that was going 50 years old.

Mr. Joseph L. Rauh, Jr.: For which they-- they limit the property, but secondly, I would say that the law has always recognized that property right of the man to join with his neighbors, not to allow people to come in he didn't like, and that right was only thrown out for one reason, the Fourteenth Amendment said that the states cannot enforce that right.

And, I'm suggesting here in the second point that not-- that a better way to say it than that the states can't enforce an existing right is that the states can't create or recognize that right.

But, whichever way you put it, it seems to me, to distinguish Shelley and Kraemer from the sit-in cases is, in effect, to say that Shelley and Kraemer no longer exists beyond the--

Justice Hugo L. Black: Well, there the facts of your argument has to be, hasn't it?

And I'm not saying it's not right, but your argument has to be the owner of a place of business that you would say, as distinguished from the owner of a home or the owner of some other unknown things like churches and things like that--

Mr. Joseph L. Rauh, Jr.: Private clubs, Your Honor.

Justice Hugo L. Black: The private clubs, you draw distinction and--

Mr. Joseph L. Rauh, Jr.: Carpool in every--

Justice Hugo L. Black: Your argument gets down to this that the constitution forbids the owner of this property in this country to exercise the power of saying “I don't want certain people on it because of their color.”

That's where it finally gets to, doesn't it?

Mr. Joseph L. Rauh, Jr.: If he opens it to all of the public, I'd say, he may not exclude that part of the color-- of the public which is colored, yes, Your Honor, and I believe that's exactly the intention of--

Justice Hugo L. Black: That's the basic issue, isn't it?

Mr. Joseph L. Rauh, Jr.: Yes, Your Honor, I believe that's exactly the intention of the Fourteenth Amendment of the United States.

Justice Potter Stewart: Well, that's the basic question.

Here, he didn't open it to all the public. He opened it to all the public except Negroes.

Mr. Joseph L. Rauh, Jr.: That is the one thing he may not do.

He may not open it to the public except Negroes.

That seems to me-- that one distinction, he may open it to Catholics if he just-- if it's a church.

He may-- you may in your own-- in all-- there may be all sorts of reasonable distinctions, but the one thing this Court has made clear over and over again, there's one unreasonable distinction per se, race.

Justice Arthur J. Goldberg: Well, according to the (Inaudible) the adoption of the Fourteenth Amendment as a rational basis of discrimination--

Mr. Joseph L. Rauh, Jr.: The court-- yes, Your Honor, I-- precisely.

Justice John M. Harlan: But the Court has never announced any such broad suite of doctrine that you're suggesting, that irrespective of state action, race is the one thing that's taboo.

We've never said anything like that or ever approaching it.

Mr. Joseph L. Rauh, Jr.: If Your Honor please, I tried to be very careful never to use the words “irrespective of state action.”

Justice John M. Harlan: Well, then--

Mr. Joseph L. Rauh, Jr.: I have found the state action.

It may not be-- I had thought it would be adequate but I am not suggesting anything irrespective of state action.

My point is that the private right of discrimination, if there is such, must come from the statutory or common law of a state, and that is your state action.

Justice John M. Harlan: Am I right in thinking that, since this conviction took place, the owner has changed his policy and now the facilities-- the park is desegregated?

Mr. Joseph L. Rauh, Jr.: Yes, but our conviction, I still think--

Justice John M. Harlan: I understand that.

Mr. Joseph L. Rauh, Jr.: Yes.

You're correct, Your Honor, and without any difficulty.

Justice John M. Harlan: Yes, or without any compulsion either.

Mr. Joseph L. Rauh, Jr.: Well, there was the compulsion of a-- of the picket line, Your Honor.

Justice John M. Harlan: Well, I understand that, without any legal compulsion.

Mr. Joseph L. Rauh, Jr.: Yes, they desegregated before there was a legal compulsion but the legal compulsion now exists.

There is a Montgomery County--

Justice Arthur J. Goldberg: Persuasive or compulsive?

Mr. Joseph L. Rauh, Jr.: Well, persuasive, Your Honor, as the-- as an old picket line fellow myself.

Thank you. [Laughter]

Chief Justice Earl Warren: Mr. Murphy.

Argument of Robert C. Murphy

Mr. Robert C. Murphy: May it please the Court.

The trespass convictions in this case are firmly anchored to the proposition of a private business which operates in a facility which is purely private, such as the amusement park we have in this case, may, notwithstanding the fact that it requires a license from the state in order to operate, may nevertheless exclude arbitrarily from the premises such-- its customers or invitees, that-- and they do so, if it chooses, on no more rational or concrete basis than race, which was done in this case.

We certainly concede that the petitioners in this case were excluded from Glen Echo Park at that time because they were Negroes.

We believe, Your Honors, that the cases in both the state and the lower federal courts uniformly, without exception, support the proposition to which I have just referred here.

And we would submit that this Court has recognized and perhaps implicitly, if not expressly, recognized the validity of the proposition in such cases as Terminal Taxicab, Boynton versus Virginia, and Wilmington Parking Authority, all, of course cited in the State's brief.

And, to argue, as petitioners do hear this morning, that the Fourteenth Amendment requires the state affirmatively to prevent such discrimination, as was present in this case, is really to ignore approximately 100 years of consistent constitutional interpretation of the amendment as being solely prohibitive in character upon the states.

Justice Arthur J. Goldberg: So, you don't say that all that this Court has acquired is some affirmative action in order to show a state action, do you?

Couldn't the state action (Inaudible) --

Mr. Robert C. Murphy: The state, inaction -- State inaction, perhaps in the reapportionment cases.

Justice Arthur J. Goldberg: And what of state (Inaudible) suppose the sheriff would stand by (Inaudible).

Mr. Robert C. Murphy: Under the-- under I-- are you thinking of Screws, Your Honor?

Justice Arthur J. Goldberg: Yes.

Mr. Robert C. Murphy: That was state in action but, there you were dealing with a statute which invested the person discriminated against with a civil right to sue in damages.

Justice Arthur J. Goldberg: For state action?

Mr. Robert C. Murphy: For state action or something under color of state action which was present in that case.

Justice Arthur J. Goldberg: That failure to do something plainly called for (Inaudible) the right for inaction.

Mr. Robert C. Murphy: Yes, sir.

Justice Arthur J. Goldberg: Nevertheless, do you view the form (Inaudible)?

Mr. Robert C. Murphy: I think, basically, it is correct, but the principle or the proposition has never been applied in cases in the area in which we are now dealing, state inaction.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert C. Murphy: Well, basically, when you--

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert C. Murphy: Basically, you deny someone something by affirmatively moving toward that end.

I'd say this, certainly, that the waters have been considerably muddy since the reapportionment cases.

There, we are dealing with state inaction, but in this particular field, they--

Justice Potter Stewart: What have they got to do with this case since they're complicated enough on their own? [Laughter]

I don't-- I honestly don't understand what (Inaudible) --

Mr. Robert C. Murphy: Well, state inaction on the part of a legislature which denies individuals or dilutes their votes.

They're failing to reapportion themselves as being--

Justice Potter Stewart: Those were equal protection cases.

Mr. Robert C. Murphy: Denial of the process.

Justice Potter Stewart: Those cases arose under the Equal Protection Clause.

Mr. Robert C. Murphy: Under the Fourteenth Amendment?

Justice Potter Stewart: Yes.

Mr. Robert C. Murphy: Yes, sir.

Justice Hugo L. Black: As did these two.

Mr. Robert C. Murphy: As these did.

Justice Hugo L. Black: What was the state action in Marsh against Alabama?

Mr. Robert C. Murphy: In Marsh against Alabama, the state action, there, you-- as Your Honor knows, having been the author of the opinion, they were dealing with a municipality and the state action in that case was in totally circumscribing First Amendment rights, not attempting to control them but just saying “no one can speak on my property under the guides of it being personal or private property,” of course, it was not.

It was a wholly-owned town of a -- of a private corporation but, because of its features of course, was treated as any other municipality.

Justice Hugo L. Black: You mean that the state had permitted a group there to run the state as part of the common public affairs of the state.

That simply permitted it.

Had they taken any direct positive action in that case?

Mr. Robert C. Murphy: Well, as I recall, they totally circumscribed the right of anyone to distribute the religious literature in that town of those particular petitioners in that case.

They said “you cannot do it.”

Justice Hugo L. Black: The owners of the property did that, didn't they?

Mr. Robert C. Murphy: Yes, sir.

But this Court analogized the-- that property as being public property because it was, in essence, a municipality or-- being privately owned.

It was a municipality.

It took on all the public features of any other municipality.

Justice Hugo L. Black: It would be hard to find any-- that what you usually think of is direct, own, frank public action on the part of the state, which barred these individuals to admit, except the enforcement-- enforcing the law.

Mr. Robert C. Murphy: Well, I think the application of the trespass statute in that case, coupled with the total proscription against the distribution of the legislature, was enough.

Justice Hugo L. Black: Total proscription by the company?

Mr. Robert C. Murphy: Yes, sir.

It was totally arbitrary but, here, the company was acting not in its classic private sense but it, because of the nature of the town, in effect, exercising public power.

Justice Arthur J. Goldberg: Well, do you regard to read that what you were quoting from the State of Maryland with regard to recreational facilities for the city?

Mr. Robert C. Murphy: In a limited degree, yes, Your Honor.

Justice Arthur J. Goldberg: Well, do you have anything in Maryland like the Ferris wheel of the (Inaudible)?

Mr. Robert C. Murphy: Well, in Baltimore City, we have a major park, Druid Hill Park, which has, I believe, a carousel.

I could be wrong but it certainly did at one time.

Justice Arthur J. Goldberg: Have you believed it to be a comparable public park?

Mr. Robert C. Murphy: Yes, sir.

Justice Arthur J. Goldberg: Even running an amusement park, just about anybody said, that when a park is given to (Inaudible) on a purely private function, can it?

Mr. Robert C. Murphy: Well, I think it can.

I think it has to, Your Honor.

I think that the state and the-- and its citizens can both engage in the same type of business at the same time if they choose to do so.

Justice Arthur J. Goldberg: I don't doubt that, but that doesn't mean that (Inaudible) as a smack of some public character where state says they can do it with the public.

Mr. Robert C. Murphy: Well, every private function smacks of some public character.

This Court said that in the Terminal Taxicab, as I recall, that everything we do has some public aspect to it.

Justice Arthur J. Goldberg: That is (Inaudible).

Mr. Robert C. Murphy: Of degree.

Justice Arthur J. Goldberg: Well, the question to decide would only be that (Inaudible) distribution process, is it (Inaudible)?

Mr. Robert C. Murphy: No, sir, not the only one.

Certainly, I think that Glen Echo Park was probably near or around an urban renewal development.

Certainly, you have highways leading into it but-- and, up to this point, no court has ever taken those particular incidents and said that this made a private business or transform a private business into a-- into a public function.

It's all a matter of degree.

Justice Arthur J. Goldberg: It could be that the law on the public (Inaudible).

Mr. Robert C. Murphy: Certainly, but not a whole lot more than a restaurant or a hotel, I wouldn't think.

Justice Arthur J. Goldberg: But it may be that, in those instances, there's also the public involvement, wouldn't you say?

Mr. Robert C. Murphy: Yes, sir, definitely.

There is public involvement in just about everything we do.

Chief Justice Earl Warren: Mr. Murphy, in advertising for people to use this facility, did the company advertise generally to the public and invite everybody to the public or did it, in its advertisements, say “for Whites only”?

Mr. Robert C. Murphy: No, sir.

Your Honor, it advertised generally for the public and not--

Chief Justice Earl Warren: Generally for the public?

Mr. Robert C. Murphy: It did not delineate Negroes from Whites.

It advertised generally.

All were apparently welcome.

Chief Justice Earl Warren: Did it have any signs on its property, posted on its property, to prevent Negroes from--

Mr. Robert C. Murphy: Your Honor, on page 11 of the record, something rather peculiar, the counsel for the state undertook to prove there was eight signs on the property.

If you'll-- but, he never quite got around in proving it.

He said if you look at that, Your Honor, for--

Chief Justice Earl Warren: Could it be because they weren't there?

Mr. Robert C. Murphy: Well, I don't.

I think they were there. [Laughter]

I think they were there but certainly, at this juncture, we would have to say that there were no signs on the property because the evidence does not show that there were.

Chief Justice Earl Warren: Were there any fences or anything to prevent the public generally from coming into the--

Mr. Robert C. Murphy: No, sir.

Chief Justice Earl Warren: -- into the place?

Mr. Robert C. Murphy: No, sir.

Chief Justice Earl Warren: And there was no limitation then on who could come in there until they got to one of the-- one of the facilities.

Mr. Robert C. Murphy: Well, Your Honor, there's a statement in the record, which is not in my favor, which suggests that the policy of the park was to have its police force at the gates and to prevent Negroes from coming in.

Chief Justice Earl Warren: I understood there were no gates.

Mr. Robert C. Murphy: Well, I think there is a -- gate in a sense of the-- of a main entrance, but I don't think it is fenced.

There's a gate in the sense of a main entrance where people would go in, but it's not fenced.

But, in this particular incident on this particular night, they did not accost the petitioners until they were on the carousel and, I might add, a very appealing place for being arrested.

I don't know whether that answers your question or not, Mr. Chief Justice.

Chief Justice Earl Warren: Well, I think-- I think I understand what your situation is.

Mr. Robert C. Murphy: We would emphasize Your Honors that this Court has always interpreted the amendment, I say “always” now somewhat qualified, as being a limitation upon the exercise of power by a state at the risk of being somewhat trite.

I'd like to repeat very briefly some of the Court's own statements construing the amendment as “directing no shield against merely private conduct, however discriminatory or wrongful.

The amendment is not a guarantee against the commission of individual offenses.

It does not add anything to the rights of one citizen as against another.

That individual invasion of individual rights is not the subject matter of the amendment.”

In short, this Court has said, and I think very recently, in either Peterson or Greenville, restated the fact that the action inhibited by the amendment was only such action as made fairly be said to be that of the states.

We do not believe that the--

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert C. Murphy: Yes, sir.

Justice Arthur J. Goldberg: In any of the--

Mr. Robert C. Murphy: In any of its manifestations, if it's some-- in some significant way involved in this case, these convictions would have to fall if you find that true.

Justice Arthur J. Goldberg: One of the reasons why (Inaudible).

Mr. Robert C. Murphy: Your Honor, I am stuck with the sheriff's-- with the deputy sheriff in this case, and I'll get to him in due time, I suppose, but--

Justice John M. Harlan: Well, there's really no difference between you and Mr. Rauh on the premise of would this case must be argued --

Mr. Robert C. Murphy: State action.

Justice John M. Harlan: -- state action.

Mr. Robert C. Murphy: Yes, sir.

Justice John M. Harlan: So, he doesn't argue with that.

Mr. Robert C. Murphy: Well, he argues Shelley versus Kraemer as being a cure to all his problems.

Justice John M. Harlan: Now, that doesn't involve state action.

Mr. Robert C. Murphy: I think this is a state action case.

Justice Potter Stewart: With all respect to my colloquy, a state action, that's not the point.

Obviously, this is a state action.

This was a state conviction.

It's not state action that decides whether or not this is under the Fourteenth Amendment or whether or not there was state discrimination.

Mr. Robert C. Murphy: Well, it's -- a state action of a particular type that was--

Justice Potter Stewart: Exactly.

Mr. Robert C. Murphy: -- discriminatory or--

Justice Potter Stewart: It's always state action every time there is a conviction in a state court.

Mr. Robert C. Murphy: I think significant state involvement or significant state action--

Justice Potter Stewart: Well, the state denial of rights under this.

Mr. Robert C. Murphy: We've attempted to distinguish Shelley versus Kraemer on the ground that, in Shelley, we're dealing with constitutionally protected rights, and in the present case, you're not.

There is no constitutionally protected right to enter property of-- a private property of another contrary to the will of that owner.

Now, that perhaps is the most basic distinction we can find.

I believe there are others.

Alienation on the-- on a fee would be one, as been mentioned here by the Court.

There are others, but in the factual situation that we have, this appears to me to be most direct and a basis upon which Shelley could be distinguished from the factual situation in the present case.

I might also add that in for-- in enforcing the-- a non-discriminatory type of trespass statute as was done in the instant case, that the state is simply recognizing the need in an ordered society that private choice, if it's to exist, depends upon the support of sovereign sanctions.

This is a neutral enforcement.

It doesn't induce others to discriminate.

It also I would feel affords the possibility.

And, I say possibility rather than likely fact of force and violence initiated by the owner.

Justice Hugo L. Black: Are you going to answer the argument to the effect that your statute neither made crime nor did you charge the crime to be that this person stayed on the premises of another after he was ordered to get away?

Mr. Robert C. Murphy: Mr. Justice Black, we've reserved 15 minutes to answer the Solicitor General on that point.

Getting to the crux of the problem, as it has been pointed out, is simply to ascertain whether there has been state action of a particular character which is-- involves the state with the discriminatory policy of the park.

In this connection, we would point out that the-- I don't think it's seriously contended or argued that the discrimination in the park or by the park was either caused or induced or dictated or in any way mandated by any state law, any local law, any local policy, any custom, or any executive proclamation, such as we had in Lombard.

There is no state property and there is no state funds involved in the operation of the amusement park.

It had no interest in, absolutely no control over the park management, no interest or no control over the management of the private detective agency, by which Officer Collins was employed.

I think the only possible state involvement in the discriminatory policy of the court is to be found in the engagement of Collins.

He was somewhat of a unique individual occupying two roles.

Certainly, we must concede that he was a special deputy sheriff appointed under the statute that is peculiar to Montgomery County, cited in our brief.

We also must concede that he was wearing his special deputy sheriff's badge at the time of the-- of the taking into custody of the petitioners in this case, and that he also completed an application for a warrant which indicated that he was supplying, therefore, in an official capacity.

Justice Arthur J. Goldberg: The state, first of all, pleaded and then the court adjourned.

Mr. Robert C. Murphy: Yes.

Justice Arthur J. Goldberg: (Inaudible) would concede the colloquy to be a very visual statement that the (Inaudible).

Mr. Robert C. Murphy: Well, our constitution recognizes corporations in a manner of creating them.

It doesn't allow for special corporations.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert C. Murphy: He would not.

Justice Arthur J. Goldberg: On an additional ground, and I assume, we have (Inaudible) condition that it has to consist with the (Inaudible).

Mr. Robert C. Murphy: Yes, sir, we have that right.

Montgomery County local laws are very heavily slated toward assuring itself of safety because, in an amusement park, you have many safety possibilities.

Justice Arthur J. Goldberg: (Inaudible) he brought the petitioner out there and he accused a man of violence and (Inaudible).

Mr. Robert C. Murphy: Do you mean outside of the park, Your Honor?

Justice Arthur J. Goldberg: Yes.

As the records supply (Inaudible).

Mr. Robert C. Murphy: Well, I'm not familiar with that.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Robert C. Murphy: This is a--

Justice Arthur J. Goldberg: They're very well seen in the record where the road goes.

Does the record touch upon (Inaudible)?

Mr. Robert C. Murphy: I'm not familiar, Your Honor, with the park but I would assume the roads do lead to it.

It's a very popular place.

Justice Tom C. Clark: They just go to the parking area, do they not?

Mr. Robert C. Murphy: I'm sorry, Mr. --

Justice Tom C. Clark: As I remember, I took my grandchildren out there several times.

The roads do go to a parking area where you park your car and then you walk from there to the park.

Mr. Robert C. Murphy: We would point out, if Your Honors please, in addition to the factors which I just pointed out concerning Mr. Collins, that Mr. Collins was not paid by the State of Maryland.

He wasn't even paid by the park.

He was par-- he was paid by the detective agency which, of course, is an independent contractor.

There might be a point of distinction here also of some significance in the usual situation such as you have before the Court in the National Labor Relations Board versus Jones and Laughlin Steel Company.

When a large corporation has police officers on its payroll, it generally gets a commission directly from the state.

Private detective agencies, being independent contractors, under our law, cannot enjoy a commission directed from the state.

These people, particularly Collins in this case, did enjoy his special deputy sheriff's commission by virtue of the statute.

Chief Justice Earl Warren: Are all the policemen of this agency deputized?

Mr. Robert C. Murphy: I'd-- the record is not clear on that point.

There was one other officer of that agency who was a special deputy sheriff, according to the record.

Chief Justice Earl Warren: Who was?

Mr. Robert C. Murphy: One other, yes, sir.

Chief Justice Earl Warren: That's on this property?

Mr. Robert C. Murphy: Yes, sir.

But neither of them wore a state uniform.

Justice John M. Harlan: Supposing the owner, in this particular instance, say “(Inaudible) here to my segregation policy, but I like to go and see this go on.

I don't want you to arrest them.”

Would the officer have been obligated notwithstanding that--

Mr. Robert C. Murphy: Well, I think Your Honor--

Justice John M. Harlan: -- to arrest them?

Mr. Robert C. Murphy: That the-- no, sir.

I do not think so.

The primary loyalty of this individual was to his employer, the detective agency.

The record does not suggest that Collins was a mere robot, that Collins was not a thinking man, that there-- I think the Government suggests that he was under the pay and control directly of the park.

The park paid him.

The park told him what to do.

But, we would make the argument that his primary loyalty was to his own agency and he's not going to do precisely what the employer or the park would have him do in this case.

If he did something wrong, his own agency would have to answer for it.

Now, we would say that the primary loyalty is not to the park.

The park didn't pay him.

The agency paid him.

Chief Justice Earl Warren: Well, then if his primary loyalty wasn't to the park, the manager didn't have the right to command him to do this thing now.

Mr. Robert C. Murphy: Well, from Collins' viewpoint, he did not.

Now, I think Collins, as an independent contractor, had to exercise some independent judgment.

Chief Justice Earl Warren: He exercised his own judgment in putting these men off the court--

Mr. Robert C. Murphy: Yes, sir.

Chief Justice Earl Warren: -- notwithstanding any orders that he might get from the manager.

Mr. Robert C. Murphy: Well, he had a-- he knew the wishes of the park.

Chief Justice Earl Warren: He what?

Mr. Robert C. Murphy: He knew what the wishes of the park management were.

Chief Justice Earl Warren: Yes, but he was not obliged to follow them.

Mr. Robert C. Murphy: Well, I would say that he could have refused to follow-- but, of course, he did not.

Chief Justice Earl Warren: I beg your pardon?

Mr. Robert C. Murphy: He did not.

He could've undoubtedly refused to follow, for the consequences of that may well have been that the agency's contract may have not been renewed the following year, but I do not believe that we can characterize Collins as a mere robot in the situation.

Chief Justice Earl Warren: Why would--

Mr. Robert C. Murphy: You can't con--

Chief Justice Earl Warren: Why would an agency like that want to deputize these men if they didn't give them the-- some power of the state?

Mr. Robert C. Murphy: I think, Your Honor, that, in all canter, that that was the reason that they were deputized, because, under our state law, private detectives have absolutely no police power.

Chief Justice Earl Warren: Who hasn't?

Mr. Robert C. Murphy: Private detective agencies--

Chief Justice Earl Warren: Yes.

Mr. Robert C. Murphy: -- have no police power under our law.

Chief Justice Earl Warren: Yes.

Justice Arthur J. Goldberg: Is this your last thing that implies the state, the one before that (Inaudible)?

Doesn't it apply to the state if you amend this warrant to the new statute in (Inaudible) and the owner?

Mr. Robert C. Murphy: I think he was agent of the owner.

Justice Arthur J. Goldberg: If he was agent of the owner, he'd want to defend the (Inaudible).

Mr. Robert C. Murphy: Well, I think he had the right to exercise it, but, in doing what he did, he certainly acted as the agent of the owner.

If he did not act at all, we-- of course, we wouldn't have the problem, but he did act.

Justice Arthur J. Goldberg: In other words, (Inaudible) the purpose of exemption.

Mr. Robert C. Murphy: I think that is very fair to say.

Justice Arthur J. Goldberg: Can I ask you this.

Am I correct that the demurrer adopted a public accommodations law?

Mr. Robert C. Murphy: Yes, sir.

Justice Arthur J. Goldberg: And, what constitutional authority do you seem to have it based?

Mr. Robert C. Murphy: We base it upon the authority of the state to pass all matter of laws and the public welfare.

Justice Arthur J. Goldberg: Therefore, the law will divide the public (Inaudible) of carrying out the state's purpose to present discrimination.

Mr. Robert C. Murphy: Yes, sir.

We've looked upon -- our state court looked upon Collins, as my brother says, as a double agent.

They used the word “dual agent” and, although our Court of Appeals' decision is not as clear as it should be.

It appears to us that they are, in essence, saying that he was exercising no state authority at the time he took into custody these petitioners.

And, we would suggest to the Court that if there is any evidence to-- if this Court finds any evidence of the-- supporting the conclusion of the Court of Appeals in Maryland, it should adopt it.

Hence, we would not-- we would have an individual exercising no state authority whatsoever.

We wouldn't have a problem of a state involved.

We'd simply have an individual who happen to be a special deputy sheriff but not acting in any state capacity at the time--

Chief Justice Earl Warren: You don't exactly agree with that, do you?

Justice William J. Brennan: Pardon me.

I thought you suggested earlier this arrest was not authorized except by virtue of his being a deputy sheriff, Collins with the state power to arrest.

Mr. Robert C. Murphy: No, I think, as an agent, Mr. Justice Brennan, of the owner in this situation, he could've arrested, not in a capacity as a police officer but as an agent of the private owner.

In other words, the private owner himself could've arrested in this situation.

And, as the agent of the owner, acting in non-state capacity, he could've done the same thing.

Justice Byron R. White: Mr. Murphy, you said also that the reason the man was deputized was to give him some police power?

Mr. Robert C. Murphy: I suggest that, Your Honor.

I do not know but I think, undoubtedly, and as much as we represent--

Justice Byron R. White: What powers-- what powers did they want the man to have as a-- as a deputy that the owner didn't have himself?

Mr. Robert C. Murphy: Well, I would think--

Justice Byron R. White: You say, the owner could've arrested in any event.

So, what powers did they want the man to have that the owner wouldn't have had?

Mr. Robert C. Murphy: I would think all the powers of a conservatory of the peace which include the power of arrest on and off the premises.

Actually, his authority was limited to the premises of Glen Echo Amusement Park but I think, basically, the-- it's assumed by all, including the Government and the petitioners, that Mr. Collins was deputized at the instance of the park.

There is nothing in the record to show in whose instance he was deputized at.

Justice Byron R. White: Well, I assume then from what you say that there was something that they wanted him to deputize for.

You have, on the property, some man with some powers that the owner wouldn't have himself.

Mr. Robert C. Murphy: Probably.

It may have --

Justice Byron R. White: Probably.

Mr. Robert C. Murphy: It may well have been--

Justice Byron R. White: And the state was willing to put that sort of a person on the property?

Mr. Robert C. Murphy: Well, that, I don't think is a proper characterization.

Until we know at whose instance he was deputized, he could have been deputized for the--

Justice Byron R. White: I know, but the fact remains that he was deputized.

Mr. Robert C. Murphy: He was deputized.

Justice Byron R. White: And, he wa-- and, if a police officer has some powers that an owner wouldn't have himself, he had it.

He has those powers.

Mr. Robert C. Murphy: He had all the powers.

Justice Byron R. White: And he had them by virtue of the state having deputized him?

Mr. Robert C. Murphy: Yes.

We would say, additionally, even if he was acting as a state officer, that he did really nothing any different in any other state officer would've done when called at the scene.

He simply arrested under these circumstances.

There are many cases upholding convictions on this basis, but I think he had a duty if he was acting in a state capacity at the time that he accosted the petitioners on the carousel, and they were violating a law.

As a state officer, a misdemeanor being committed in his presence, he may have had a duty to arrest.

The Government seems to suggest that a police officer should be some sort of a mediator, but I would submit that that's basically something for the magistrate and not for a police officer.

And, there's as-- and there is certainly nothing in the record to suggest that Officer Collins, if he was acting in a state capacity, did not himself stop and think “should I or should I not arrest these people” and then decide on the-- on the affirmative course of arresting.

Justice William O. Douglas: Does he clearly know (Inaudible) making the arrest in seeing the action here?

Mr. Robert C. Murphy: Our courts-- our courts have held, Mr. Justice Douglas, that when a police officer sees a misdemeanor committed in his presence, he has a duty to arrest.

Justice William O. Douglas: Did he see the misdemeanor committed in his presence?

Mr. Robert C. Murphy: Yes, sir.

Justice William O. Douglas: You mean just in the first part that a misdemeanor has been committed--

Mr. Robert C. Murphy: Has been committed.

Yes, sir.

Justice William O. Douglas: The question I asked is, certainly, it would be (Inaudible) and says “I would like someone to be arrested.”

Mr. Robert C. Murphy: No, sir, only when he knows that a misdemeanor is committed and he sees it.

Justice Tom C. Clark: He knew the police of the park.

Mr. Robert C. Murphy: Yes, sir.

He was employed in April initially.

This incident occurred in June.

Justice Tom C. Clark: Before he discussed it with the owner, he told the people to leave in five minutes, is that right?

Is that the chronology?

Mr. Robert C. Murphy: The owner told the officer that if they didn't leave in five minutes, he was to arrest them.

Justice Tom C. Clark: When did the officer approach the owner?

Mr. Robert C. Murphy: Well, at the time they were on the carousel for the first time, the officer went to the owner again, as it's suggested in the record, that everyone knew that this was going to happen all day long that there had been a rumor-- persistent rumor that there was going to be some difficulty at the park that night.

So, they anticipated that these petitioners would arrive.

But to answer specifically your question, the affirmative evidence in the record shows that when they were on the carousel, seated there, Officer Collins then went to the park management and asked them what he should do.

Justice Tom C. Clark: That's before the officer approached to these petitioners?

Mr. Robert C. Murphy: My recollection is he approached them initially and then when they declined to leave, he went to the park manager, park management and asked them what his instruction should be, which was-- perhaps suggest that he acted precisely in doing what he did.

Justice Tom C. Clark: And then he returned and told them to leave in five minutes?

Mr. Robert C. Murphy: Yes, sir.

Justice Tom C. Clark: Which was the instruction of the owner.

Mr. Robert C. Murphy: Instruction of the owner.

Of course the State of Maryland does not seek here to justify the private discrimination, nor do we appear here to approve it.

But, under the existing law, as we see it, these crimes-- these convictions were not unconstitutionally secured and we would, therefore, respectfully submit that they should be affirmed.

Chief Justice Earl Warren: But, do you believe, Mr. Murphy, that the state has the right to put its police officers in every or any place of business for the purpose of enforcing segregation?

Mr. Robert C. Murphy: No, sir.

Chief Justice Earl Warren: Well, then, aren't you faced with that problem here?

Mr. Robert C. Murphy: I think I am.

I can't, in this-- under this record, Mr. Chief Justice Warren, I can't draw up a picture of this individual.

Any collusion between the sheriff, the appointing authority, and the Park to place this individual-- to deputize him and place him in the gate to prevent these individuals from coming in.

The fact that he was a special deputy sheriff in this case, I think, is a happenstance.

I don't think he was placed there to enforce or to better effectuate the park's discriminatory policy.

So, I don't think that there's any collusive action.

Certainly, Officer Collins, himself, his presence at the park did not coerce the park management into discriminating.

Because he was there, he's not responsible for the park's discriminatory policy.

Chief Justice Earl Warren: Certainly, the sheriff knew of these difficulties that were going on at the park for a long time.

Everybody else knew it.

It was in the press, wasn't it, so far as to this?

So, he must have known that this deputy sheriff was in there enforcing a power.

Mr. Robert C. Murphy: He's a special deputy sheriff.

He's not a deputy sheriff.

Chief Justice Earl Warren: Well, I know, but he's--

Mr. Robert C. Murphy: He's a special deputy sheriff.

Chief Justice Earl Warren: But the deputy sheriff was a deputy sheriff in the eyes of the law.

Mr. Robert C. Murphy: Well, this particular Act under which he was commissioned, Your Honor, went to effect in 1939.

It wasn't something that was placed into effect at or about the time of these demonstrations with the sole purpose of employing someone in the Collins' capacity.

Rebuttal of Joseph L. Rauh, Jr.

Mr. Joseph L. Rauh, Jr.: Can I just have 10 seconds?

Chief Justice Earl Warren: Yes, you may have that much.

Mr. Joseph L. Rauh, Jr.: I believe my colleagues pointed out that Mr. Justice Harlan asked me whether my second point would require the overruling of the civil rights cases.

The answer in our judgment is that it does not require the overruling of the civil right cases because the assumption was made at that time that the states would deal with this problem.

This is briefed at page 29 of the brief.