Cases by Issue - Sit-In Demonstrations

Brown v. Louisiana - Oral Argument

Wed, 22 Aug 2012 16:55:57 +0000

Case:

Brown v. Louisiana

Media File:

41_19651206-argument.mp3

Related Transcript:

41_19651206-argument

Transcript:

Argument of Carl Rachlin

Chief Justice Earl Warren: – petitioners versus Louisiana.

Mr. Rachlin.

Mr. Carl Rachlin: Mr. Chief Justice, and may it please the Court.

After trial, petitioners were convicted by a judge sitting without a jury of violating La. Rev. Stat. 14-103.1, which states in substance that whoever with intend to provoke a breach of the peace or under circumstances such that a breach of the peace maybe occasioned thereby and subdivision (1) provides in substance crowds or congregates with others in or upon in a variety of different places both inside and outside public and private, including a public building and who fails to move on when ordered to do so by a police officer or any authorized person shall be guilty thereof.

The oral opinion of the court is filed on -- is referred to on pages 139 and 140 of the transcript herein.

Under normal Louisiana procedure, petitioners had applied for writs of mandamus certiorari in prohibition which writs were denied without opinion as referred to in the record below.

Justice John M. Harlan: What were the sentences in this case Mr. Rachlin?

Mr. Carl Rachlin: The sentence is Brown received a $150 or 90 days.

The other four petitioners received, I think it was $35 and 15 days.

Justice Hugo L. Black: Did you say $150 or 90 or $150 and 90?

Mr. Carl Rachlin: Or -- and -- I thought it was $150 or 90.

Justice Hugo L. Black: That's what I thought you have said.

Mr. Carl Rachlin: This Court granted certiorari on May 3, 1965 and they brought all appropriate proceedings in the court below.

The various constitutional and federal questions were raised which I hope to refer to during the course of my presentation.

On Saturday, March 7, 1964, shortly before noon, the Parish sheriff in Clinton, Louisiana, Mr. Doughty saw the petitioners, all Negroes, go past his place of office of business.

The sheriff testified that he had been expecting them all morning.

He further testified that he had heard that they, as members of the Congress of Racial Equality, were going to integrate the public library in Clinton, Louisiana.

As soon as he saw them on the street go past his place of private business and enter the library which is just a short distance from his place of business, he called the jail and directed his deputies to proceed to the library, and he himself shortly thereafter within a matter of moments went himself.

The sheriff had testified below that up until that moment, he had never observed any Negroes enter the -- this library which is part of a three Parish system involving three buildings and two bookmobiles.

Justice John M. Harlan: Two what?

Mr. Carl Rachlin: Two bookmobiles, mobile library systems which I will refer to in a moment.

The three branches, the Clint -- the one and which we are concerned with here was the administrative office of the three Parish library system known as the Audubon Library.

And there was a -- in addition to the administrative office, there was a library there as well as in two other communities and two bookmobiles, a red one for White persons and a blue one for Negro persons and the blue bookmobile as the testimony in the record has been -- has indicated serves and has registered all the Negroes in the parishes, the three parishes with which we are concerned.

The testimony also indicated that if a White person had come to the blue -- blue bookmobile, that is the one for Negroes, such a person was refer either to the red bookmobile, that is for Whites or to one of the branches.

The Negroes weren't, according to the testimony, were never known up to this moment to have used any of the branch libraries.

In any event, Brown and the other petitioners herein entered the library and when met and I quote from the record by just giving the testimony of the librarian, “between the tables by Mrs. Reeves, the librarian” and this was in what was term by the administrative official of the library as the adult reading room which has sometimes been in the record below, been called the lobby.

Justice Potter Stewart: Mrs. Reeves was alone in the room when he's (Voice Overlap)

Mr. Carl Rachlin: At the moment she was alone, sir, yes.

Justice Potter Stewart: And these there were five of these people who entered the room.

Mr. Carl Rachlin: Five persons entered the library, all Negro.

She was -- her testimony was that she was alone.

However, at one point, the sheriff indicated that he wasn't certain -- he may have -- may or may not have seen another person enter but then the testimony was vague and that the hard testimony was precise, there was no one else in the library at that time.

Justice Potter Stewart: Was she behind the desk of some kind or --?

Mr. Carl Rachlin: She was -- no she wasn't.

She was moving around the library and as I indicated, apparently, she met them between the reading room -- reading table of some eight by four and her desk in that room.

In any event, Brown asked her for a book.

Mrs. Reeves testified that she went to the index system and was not able to find the book and indicated that she would have the book sent to Brown after she ascertained that he had been a registered member of the library.

Justice John M. Harlan: What was the book?

Mr. Carl Rachlin: The book was a book by a well known Negro writer; Arna Bontemps entitled “The Story of the Negro.”

There is a little conflict of testimony as to what took place thereafter.

Justice Abe Fortas: Mr. Rachlin, excuse me, doesn't the State say that there was no such book in existence?

Mr. Carl Rachlin: Yes, Your Honor.

The State indic -- the librarian indicated that that there was some confusion about the name but I think if you permit me, sir, the record shows that the library actually obtained the book from one of the state institution either Louisiana State University or Tulane and in fact as the record -- as it was admitted into evidence in the record, the book was mailed to Mr. Brown with a card saying that he could either return it by a mail or he could return it to the blue bookmobile.

That is part of the record of this (Voice Overlap)

Justice Byron R. White: But this -- this was a book by another name, by another author.

Mr. Carl Rachlin: They're very close but not identical, sir.

There's no question.

It was not the same --

Justice Byron R. White: But wasn't the -- wasn't the author that was given the library.

Mr. Carl Rachlin: Well, I -- it is hard to explain that.

I think the only answer is that the stenographer below did not correctly get the name of the author.

The author's name, if -- if you look at the -- there is a -- a certain overlapping of the names between the name that -- wrote down and the name of the book in fact and I think that was more --do more.

Justice Byron R. White: Does the -- didn't the communication sending it out say that this is not the book you asked for but --

Mr. Carl Rachlin: It's very close to --

Justice Byron R. White: -- by another author but it's perhaps what you want.

Mr. Carl Rachlin: But -- I think the examination shows certain and probably was in fact the same book that was merely a stenographic error in the court below.

But I -- that is of no significance because there's no question that we don't and we don't question whether the book was or was not there.

We think that is highly irrelevant to the proceeding and we're not disputing that Mrs. Reeves -- I don't -- we don't claim for a moment that Mrs. Reeves attempted to in some way prevaricate the truth.

Justice Tom C. Clark: Was the title the same?

Mr. Carl Rachlin: The title is very similar and I think it was a similar subject matter.

Justice William J. Brennan: [Inaudible]

Mr. Carl Rachlin: Well one was the -- the story of a Negro by Arna Bontemps, I can give you the correct title of the -- I have that here.

After she met them between the tables, they asked her for a book and what -- the -- the way it reads in the record on page 97, question, what is the name of the book that one of the accused asked for?

Answer, I copied it from the paper he handed me, Wendall Arna, the Story of the Negro: Bontems.

Now the reason I suggest without actually knowing so they did not participate in the trial is that Arna Bontemps is a well known Negro author and I think the whole thing was just a stenographic confusion with the name that was not at that time known to the -- the -- to the – to the actual stenographer.

Justice William J. Brennan: Now where does it appeal when the book (Voice Overlap)

Mr. Carl Rachlin: Now the actual book --

Justice Byron R. White: 112?

Mr. Carl Rachlin: I -- just for a moment, sir.

Yes, on 112 when -- on cross-examination of the administrative head of the library, Mrs. Perkins, the question was, I asked her in form of a statement.

I'll show you what purports to be a postcard of the United States postal service addressed -- I'll skip a few words to Henry Brown, Jackson, Louisiana which reads “Memo to Henry Brown from the Audubon Regional Library, bookmobile number two.

We are mailing to you on the separate cover the copy of Arna Bontemps: The Story of the Negro.

And then, neither the Audubon nor the state library could verify such a title by Wendall.

You -- you may return the book either by mail or to the book -- the blue bookmobile whichever way is most convenient.”

I suggest though, I don't think it's significant that this was just a confusion over the correct name of the author.

In any event as I've indicated and as the record shows, the choice of return was not in person to the library but either to the blue -- blue bookmobile, the Negro bookmobile or to the -- through the mails.

In any event, at this point, Mrs. Reeves wasn't certain whether Brown asked to see the United States constitution.

She asked Brown and the others to leave and they indicated that they would not.

They indicated that she testified quite clearly that all during this time, they maintained absolute quiet.

There was no unusual conduct or any disorderly conduct -- conduct of any kind.

No boisterous talk.

No noise talks because these all comes from the testimony of Mrs. Reeves by the way as well as the other witnesses who testified in behalf of the state.

She called her superior and he --

Justice Potter Stewart: Before -- I want to get one thing clear.

She asked them to leave before calling her superior.

Mr. Carl Rachlin: She asked them to leave.

Justice Potter Stewart: Well is it correct or not that she did not ask them to leave until after she had taken the order herself trying to find the book there, failed to find it, and then told them that she would send the book and let him know.

Mr. Carl Rachlin: That is correct.

She did not ask him to leave prior to --

Justice Potter Stewart: So there was no -- maybe I'm -- am I fairly stating the factual conclusion when I say there was no refusal of service by her to these people.

Mr. Carl Rachlin: There was no refusal to take the order, certainly that was true.

Yes, sir.

Justice Potter Stewart: Or of any other requested service?

Mr. Carl Rachlin: Well, there was some question as to whether they have – they had asked to see the United States constitution because the sheriff later testified that when he, at the time he asked them to leave, Brown and one of the others who was not identified by the sheriff said they wanted service and the sheriff refers specifically to the fact that there was a request discussion about the United States Constitution and as a matter of fact, the librarian herself when she -- that is the administrative head of the library, when she testified after Mrs. Reeves, she also testified there was discussion about the United States Constitution.

So that when I answered your question, it was not meant to be a base of it but merely that there was further discussion unquestionably and -- but there wasn't -- sir, I can't honestly say that she refused to permit them to see the United States Constitution.

She did however agree to take the order.

And that order, as I -- as the record shows was in fact filled by mail.

Justice Potter Stewart: Yes.

Of hand can you tell us where in the record this testimony about the constitution appearance?

Mr. Carl Rachlin: Yes.

Please bear with me for a moment.

I had it in my notes.

Justice Potter Stewart: Don't take the time, we will find it on our own.

Mr. Carl Rachlin: Well in any event, Mrs. -- Mrs. -- Mrs. Perkins, the administrative head of the library, indicated that there were couple of tables in this room variously referred to as the adult reading room, but I think Mr. Kilbourne at the trial as the lobby and the record on 101 indicates that they were both talking about the same room when he was questioning Mrs. Perkins.

And that, from time to time the public did sit in the reading room and -- and do whatever people customarily do in libraries.

As Mrs. Perkins came out, there was this talk about the Constitution.

I think that is referred to, Your Honor, on page 104, I think is where -- let me see -- well that's where -- I'm sorry, that is not -- that is not accurate.

Justice Potter Stewart: [Inaudible] testimony begins apparently in page 116.

I'm looking at (Voice Overlap)

Mr. Carl Rachlin: Well Mrs. -- well Mrs. Perkins also referred to the Constitution -- oh yes -- yes, on 108, Your Honor, near at the top of the page, question, of course a question by Mr. Bell here, isn't a fact that the defendant, Mr. Brown -- Henry Brown asked you for a book on the Constitution of the United States?

He didn't answer.

He did not ask me for a book on the Constitution of the United States.

Question - Didn't you previously testify about the Constitution?

He said to me, what about the Constitution which your reply was that we owned it -- that we owned the copy that we owned several copies.

In any event, Mrs. Perkins then shortly thereafter asked them to leave.

And again, in -- in --

Justice John M. Harlan: Well this episode about the Constitution or whatever it was, was this before or after they were asked to leave.

Mr. Carl Rachlin: This was -- this was after they were asked to leave by Mrs. Reeves.

Mrs. Perkins came out after they refused to leave when Mrs. Reeves -- after Mrs. Reeves' conversation.

In any event, Mrs. Perkins asked them to leave and again, as I say, there was this little conversation about the Constitution.

They did not leave, but again, there was no question they were orderly and not noisy.

At this moment, I refer back to what took place at the very opening of my presentation when the sheriff now comes in.

He had meanwhile assembled his deputies but this was only a matter of minutes at most, perhaps 10 minutes the whole incident took and the sheriff comes in.

The deputies came in separately.

No one had -- by the way, the record is very clear as to the sheriff had testified that -- that on record 107, that no one had asked the sheriff to come to the library certainly not at this moment.

Mrs. Perkins said, in her testimony that she was planning to ask the sheriff, but the sheriff proceeded on his own motion and arrived in about -- about 10 minutes after -- so after the incident had started.

Sheriff indicated -- asked to -- apparently ask Mrs. Perkins whether she'd asked them to leave.

She indicated she had asked them to leave and they had not.

He then asked them to leave.

At this point, Brown said, it was a public library and they wished a service.

And they -- this is on records 116 through 118 and they also said, according to the sheriff's testimony that they wanted to check out books and wanted, according to sheriff's testimony, at some point to integrate the library.

At record 120, the sheriff said as follows - I arrested them because the occupants of the building had asked them to leave and so had I.

It was a public building and they refused to leave.

On next -- the next question, probably succeeding question --

Justice John M. Harlan: Is it a fair – is it a fair assumption that the record shows that there really -- they are demonstrating at the library.

Mr. Carl Rachlin: Your Honor, I would not wish to draw that conclusion because they apparently wanted to use the library -- use the library.

Justice John M. Harlan: Why?

Mr. Carl Rachlin: Demonstration I suppose in a sense of I sat on a library where I was not.

Justice John M. Harlan: What do you mean they got to the -- they asked you the book they wanted after Mrs. Reeves has said, they couldn't find the book and asked them to leave, they didn't ask for any other books and just Constitution [Inaudible] --

Mr. Carl Rachlin: Well there is also this testimony that the sheriff himself said that they indicated to him that they wanted to -- to list on record 120, I think -- one second -- 118. The sheriff's testimony is that they said to him that they wanted to check out books and wanted to -- but they also wanted to [Inaudible] the library.

There's no question about that.

Justice William J. Brennan: Well is it a fair assumption that they would not have been there that morning?

Had they not have been viewed that the library is not open?

Mr. Carl Rachlin: I think that's a fair assumption, yes.

Justice Potter Stewart: You think what?

Mr. Carl Rachlin: I think that's a fair assumption that they -- there's a good chance they would not have been there on that day except for the fact that this library -- I think if I might add at this point that Mr. Kilbourne can bear me out shortly after the trial in this case, the library was closed and it's closed as stated.

Now that [Inaudible] and has been closed ever since as recently as Saturday of this week, I suppose permanently.

Justice Potter Stewart: The opinion of this testimony on page 118 of these people, the petitioners were from East Louisiana and West Louisiana.

Mr. Carl Rachlin: Yes, sir.

Justice Potter Stewart: How far away is that from this library?

Mr. Carl Rachlin: About 40 miles, they're all part of that one -- a three part type Parish library system.

Now this was -- they were all part of the library who administers it at Clinton which was the administrative head of the three Parish system.

Justice Potter Stewart: But East and West Louisiana were included in the library despite of the law.

Mr. Carl Rachlin: East Louisiana, West Louisiana and St. Helena Parish, I believe are the three Parish system.

Justice Hugo L. Black: Did the evidence of the policy directly against the policy of the library?

Mr. Carl Rachlin: Yes.

It was -- there was a substantial testimony given by a Mrs. Spears who until shortly before this proceeding, a Negro lady, had been a librarian there on the blue bookmobile.

Her testimony begins at 136 of the record.

And she, for example, in the middle of 137, questioned, what procedure is adopted in registering a person for books?

Well we issued a card to a person who filled the required information out and the card stamp with the word “Negro” and the date.

Now little further on, do you ever register any White persons to borrow books?

Her answer to that question was no.

And little -- at the end of the page, have you ever registered any White persons?

No.

On the top of the next page, why is it that you haven't?

Answer - On 138, well the only persons who use the blue bookmobile is Negroes and the blue bookmobile serves the three parishes for all Negroes.

And occasionally if a White person would come to the blue bookmobile, I would give them a schedule telling them when the red bookmobile would come or the nearest branch to that.

That Negroes customarily used the branch library located in City of Clinton.

No.

In addition, Mrs. Perkins had testified that to the best of her knowledge as administrative head of the library, every Negro who was registered in the library system, the three parishes was registered only in the blue bookmobile.

Chief Justice Earl Warren: Did they have any -- any library -- branch libraries specifically for Negroes?

Mr. Carl Rachlin: None at all.

The only sort the Negroes could use was the blue bookmobile or the mails there.

And as -- as indicated in this -- in the book in this very case, the one which was so mixed up about the title, the card that came to Brown indicated to return it either to the blue bookmobile or return it by mail.

And that was specifically as I say is part of this record.

And now the -- I think a significant question that was asked on page -- on the record 121 of the sheriff, so the disturbance of the peace if any in this case consisted of refusing to leave when order to do so by you, is that right?

Answer by Sheriff Doughty, that's right.

They were convicted as indicated and the judge in his opinion, I think also makes very clear in the middle of page 140 and I would like to briefly refer to that because I think it indicates what we consider the constitutional violation.

In the middle of the page, clearly this is the judge's all opinion.

Justice William O. Douglas: What were you reading?

Mr. Carl Rachlin: 140, sir, record 140, the middle of the page, this is the judgment -- judge's opinion.

Clearly the evidence shows that these parties did not congregate when they came to the town of Clinton to the Audubon Parish Library, merely for the purpose of seeking service that they had a specific motive and a specific intent.

And that was, as was shown beyond any reasonable doubt, to refuse to leave the library even after they had been served and after they had been requested three times.

Now the statute however in the -- is somewhat different.

And we -- this Court has had occasion to look into the statute and make well known in the case of Cox against Louisiana.

The statute says, whoever with intend to provoke or under circumstances such that a breach maybe occasion, crowds or congregates with others in any public place or building and who fails or refuses to move on when ordered to do so.

The sheriff arrested them as we've indicated solely because they refused to leave the public building in his mind at least as his testimony shows that would consisted nub of disturbance of a peace.

And as the judge indicated nub for disturbance of the peace, again, with the same thing to refuse to leave the library after they had been served and after they had been requested to do so.

Justice Abe Fortas: Well Mr. Rachlin, do you dispute a finding or a statement of the Court on page 140, the one that you just read.

Mr. Carl Rachlin: No, I -- I will concede that they refused to leave the library.

Justice Abe Fortas: And your point is that that statement is an indication that the arrest and conviction here were not authorized by the statute.

Mr. Carl Rachlin: But not authorized by the -- even -- well -- I think Your Honor, I have to say they were authorized by the statute because the Supreme Court of Louisiana affirmed without opinion the – the judge's ruling and therefore that is the -- the necess -- that is the interpretation of the statute Louisiana has.

And accordingly, we urge that the statute is unconstitutional for being as broad as to involve an illegal unconstitutional arrest upon people who committed no possible afterwards they could be arrested.

Justice Abe Fortas: Does it make any difference in your theory of this case whether Mr. Brown and his companions entered the library and asked for a book on the one hand or whether on the other hand, they just stand on the library and sat there.

Mr. Carl Rachlin: Frankly, Your Honor, that I -- we think that the library is a public building and the people have a right to be in a public building providing they are orderly and providing that they are not breaking any of the reasonable rules.

We certainly would recognize that the position that this Court has taken in Edwards and some of the other cases that the State has a right to set reasonable limitations and reasonable regulations for the use of public property.

And -- but that, they would in no way were they violating any regulation or rule that isn't -- was known to any of the parties of the record of this case.

They were there in the proper time of the library.

They behaved quietly.

The only question was whether the sheriff had the right under those circumstances to order them to leave and arrest –

Justice Potter Stewart: This question -- isn't the first question whether the lady in charge terms; has the right to ask them to leave.

Mr. Carl Rachlin: I think that -- I think that is a product in question.

Justice Potter Stewart: And wouldn't that -- this argue be perfectly reasonable regulation and the person in charge of the library decide when it was getting too crowded and after people had been served to ask them to leave?

Mr. Carl Rachlin: I would say Your Honor that would depend upon the circumstances.

There is certainly -- there was no such rule prior to the – their opinion.

Justice Potter Stewart: Well I know, you don't know.

And I don't know either whether there was any such rule but generally, a person in charge of a public place has some duties.

Mr. Carl Rachlin: Yes.

There's no question about that that the person on the place have some duties.

Justice Byron R. White: Well let's assume the -- assume the sheriff asked them to leave and they said no and then he attempted to eject them by force and they resisted by force.

Would this make any difference to you?

Mr. Carl Rachlin: If the sheriff had to use force first and they had resisted --

Justice Byron R. White: Oh no, they -- he asked them and they say “No, we're going to stay.”

And this is, “well, I'll have to remove you.”

So he uses force to remove them and they resisted by force.

Is this a different situation for you or would you just say, well they had the right to be there and whether they -- they could stay there if they wanted to.

Mr. Carl Rachlin: Well I would say that they were not substantially different situation even though there are a lot of facts in this case unfortunately.

Justice Byron R. White: That's -- that's

Mr. Carl Rachlin: Let's say a harder situation but I think the sheriff has the right to use force illegally then I have the right to use force illegally.

Justice Byron R. White: So you -- so you really do rely on the fact they have the right to stay in the public building in the library and just remain there as long as they're peaceful.

Mr. Carl Rachlin: And so long as the library is open.

I mean, I will -- I'm not raising the question whether I have the right to stay after hours.

Justice William J. Brennan: Well does your argument, Mr. Rachlin, that whatever maybe the regulation, that this statute should only read to non-peaceful conduct--

Mr. Carl Rachlin: That's right.

Justice William J. Brennan: And that on this sum total of facts, even though they didn't go when they were asked to leave, and even if that were legitimate regulation that they're not convicted, at least those proofs don't' add up to a violation of this statute.

Mr. Carl Rachlin: That's right and -- and if the statute is so interpret as to make this an illegal act and we --

Justice William J. Brennan: And this was the statute we had in Cox, isn't it?

Mr. Carl Rachlin: It's the same statute Your Honor.

They are the statutes of very long --

Justice William J. Brennan: What's left to that statute after our decision in Cox?

Mr. Carl Rachlin: Well the Cox part of the statute related to activities out in the open air.

Justice William J. Brennan: This is -- this is part --

Mr. Carl Rachlin: This is -- this is the same -- the same paragraph in the book but it hasn't.

It includes outside-inside public-private, all in subdivision one of --

Justice William J. Brennan: You don't argue that that there's nothing left to the statute after our decision of the Cox, is that it?

Mr. Carl Rachlin: I would say that Louisiana would be bound by the interpretation of this decision of-- of the Court -- of this Court in Cox and I think there probably is something left of the statute if interpreted probably for example in -- in the case that is so often cited by many of the courts, particularly in southern courts but northern as well as in New York, we, in New York has called People against Galert which -- which cited the proposition that you have an automatic obligation to obey an order of a police officer no matter how -- no matter -- under what circumstances made.

Well, in the case really, it does not stand on this proposition.

All I would hope that this Court would lay that proposition to rest particularly in light of its decision in Shuttlesworth which is not identical with this case.

It has many overlapping observations.

For example in Galbert the opening indication was that there was an actual obstruction of the street unhappy that there had been many people congregating on the street.

In other words, the presupposition of facts in Galprin was that the speed was obstructed and the police officer therefore asked everybody to move on.

And in fact Judge Lehman there made it very clear when he said the police officers are not the final arbiters of the rights of citizens.

So that for reasons that we have set forth specifically in our brief, we urge that this is -- the connection must be reversed that the interpretation of the statute by Louisiana is an unconstitutional interpretation, it is hopefully broad.

It does advice citizens of how to perform under this Act any event the Act was -- as Judge Harlan was suggesting was perhaps that the First Amendment right that we think ought to be protected.

And lastly our argument -- next, our argument is that the -- that the -- there was a -- we think there is any statement here under the Title 3 of the Civil Rights Act because the Title III was passed several months -- and that the Act was passed several months after the arrest here and Title III made it very clear that these -- that such -- we think that such kind of this was legal conduct.

And therefore any statute which made it illegal was improper.

Justice Potter Stewart: The difficulty with that argument and it was much of what you said this morning for me is that this -- there was no refusal of service to these people.

They were served and I've just look through the record again.

As far as I find every request that they made was responded to with courtesy and with service.

That -- that is the ultimate basic crucial fact that for me makes much of your argument irrelevant.

I mean because it's -- it's -- this is unlikely of these other cases that you've been citing to me.

Mr. Carl Rachlin: Well Your Honor, I think that in a sense and if it's known, this is a common not library.

People will have to -- I don't think the person has an obligation to explain his presence in a public place and I would hope that -- that this Court would recognize that there were times and occasions where you don't have to tell why you're at some place.

You may have a right to stay there providing your behaving in an orderly and proper manner.

The record is clear that these people are behaving in a properly orderly manner.

And to me, at least if you permit me, sir, it is highly irrelevant whether they were or they would not served.

They were in publicly owned building doing nothing to disturb anybody.

The only reason they were rejected is because they were the first Negroes to enter that building and the record is clear on that and the sheriff himself said he hadn't seen any Negroes in there before.

Justice Potter Stewart: But he said he'd only been to the library twice and it's all a lot.

Mr. Carl Rachlin: His office is just down the block and he said he saw.

That's true.

Maybe it's a -- I trust it's not a perfect commentary on life in Clinton and I'm sure Mr. Kilbourne could indicate that there are many more people who use the library more often than twice.

I would think that to me, sir, the nub of the case is the right not to have to explain yourself when you're behaving yourself properly in a public place.

Chief Justice Earl Warren: Mr. Rachlin, I didn't quite understand your answer to Mr. Justice Fortas about this finding on -- on page 140.

I -- I -- I thought you said that you did not contest that finding. Do you -- do you agree that the evidence shows that -- and I quote “That they had a specific motive and a specific intent” and that was as shown beyond any reasonable doubt to refuse to leave the library even after they had been served and after they had been requested three times.

Mr. Carl Rachlin: I would be prepared --

Chief Justice Earl Warren: No, I'm not asking what you'd be prepared for.

Do you --

Mr. Carl Rachlin: No, I mis -- I misunderstood it.

Chief Justice Earl Warren: -- does the record sustain that?

Mr. Carl Rachlin: No, the record does not sustain that completely.

Chief Justice Earl Warren: Well isn't that what we're bound by, the record?

Mr. Carl Rachlin: Yes, I would -- we are only bound -- this Court is only bound by the record.

Chief Justice Earl Warren: Yes.

Mr. Carl Rachlin: Now that is -- but I would say even if that were the fact as the judge so states --

Chief Justice Earl Warren: Well I think you have been over at that, the isn't what I asked you.

Justice Hugo L. Black: I'd like to ask you one question about that --

Mr. Carl Rachlin: Yes sir.

Justice Hugo L. Black: -- to see if I understand your position clearly.

As I understand you, you take the position, the library or the public place, people can go in and sit down, stay there, who want no service, who do not wish to read but who simply wish to sit there and that the state is constitutionally without power, you say they can't do that, that's what I understand to be your argument.

Mr. Carl Rachlin: No, I didn't say that.

I said there might -- for example the state had had a reasonable regulation well known to people in advance, they might be able to do that.

Justice Hugo L. Black: Now then you're -- then you're not going on that basis.

You're going on the basis that there was no regulation, no law which authorized the custodian to do what she did.

Mr. Carl Rachlin: That's the -- that's part of our argument, yes, sir.

Justice Hugo L. Black: Suppose there was a law which authorized you had to do what she did.

These people came in there not to get a book or came to get a book and found they couldn't get it and they decided they were just going to stay there.

What is your position as to what authority it was?

Mr. Carl Rachlin: I would say, if there was a regulation known and it said, people -- only people actually using library can remain beyond X minutes or whatever the time is, such a regulation would not be unreasonable providing with -- it was enforced in an equal manner because you -- yes.

Justice Hugo L. Black: That you are not arguing that a person can go into a public building, because it is a public building and defy the custodian of that building and stay there against the desire of the custodian which desires responsive to a trust which has been impost in the custodian by the -- by the government.

Mr. Carl Rachlin: Well providing that the government imposed a custo -- a custodial authority which in itself was not a violation of the Constitution.

That is -- if --

Justice Hugo L. Black: Do you say it would violate the Constitution for instance for the Congress as the law to the effect, people couldn't come in and sit down on the outside here in the lobby that is beyond here, stay there, when the custodian comes and tells them that unless they have presented through the motion to get out.

Do you see a law that could be beyond constitutional to that effect?

Mr. Carl Rachlin: No, I don't -- I don't say a law to that effect would be necessarily unconstitutional.

Justice Hugo L. Black: And it would -- it would be on imperative so far as the responsibility of the library and say, would it not?

Mr. Carl Rachlin: That is right, yes sir.

Subject to any comments, I might make to how the law was enforced in any given moment but the law itself, I do not -- reasonable regulation.

Justice Hugo L. Black: Well of course, if it was discriminatory.

Well that's a different thing.

Mr. Carl Rachlin: That's a different thing, yes, sir.

Chief Justice Earl Warren: Mr. Kilbourne.

Argument of Richard Kilbourne

Mr. Richard Kilbourne: Mr. Chief Justice and may it please the Court, Your Honors.

I would -- I would say at the outset, that had the petitioners in this case been refused all the services that they requested at the library at the time they went in and they've been just arbitrarily refused any recognition or any service and asked to leave, I can assure you that this case will not be here today.

In fact, there wouldn't have been a case.

If they hold the state, the State of Louisiana's entire case is based on the fact that the petitioners went in to the library and requested service.

They requested a book and it was later ascertained that the book by that specific title did not exist, but a similar book did exist which was -- was sent to them and its position of the state of course is that was all that they had asked for.

They had no further business there and when they just -- just sat there and looked, vacant stares into space, the librarian testified that she repeated statement that they didn't have the book and that she would try to get it -- get it for them.

And when she repeated -- repeated it the second time, and they did nothing.

They just sat there.

That is when she asked them to leave.

Chief Justice Earl Warren: Is there -- is there anything in the record to indicate that it is a common practice in that library for the librarian to -- the person asked for a book and the book is not there to ask them to leave immediately?

Mr. Richard Kilbourne: No, there is nothing at all in the record and that -- that is not in the record.

Chief Justice Earl Warren: That's what happened here, isn't it?

Mr. Richard Kilbourne: Well substantially, I believe that would be correct, Mr. Justice --

Chief Justice Earl Warren: Yes.

Mr. Richard Kilbourne: -- Mr. Chief Justice, I think it would be substantially correct that she said that she assumed when she took the order for the book that they would leave and when they did not, she asked them to leave.

Now, of course, this is --

Justice Hugo L. Black: MWhat kind of library?

I haven't fully understood from the statements up to date, what is that library?

Mr. Richard Kilbourne: Well at that time, it was a kind of arrangement by three parishes to -- to have this library, they voted a tax to maintain it.

They call it the Audubon Regional Library.

Justice Hugo L. Black: Was it a reading library?

Mr. Richard Kilbourne: No, sir, it was essentially, it's just to supply books and that is just about all it did to -- to serve the -- they did have branches of -- branches, small branch of library in St. Francis Building in West Louisiana Parish.

Justice William O. Douglas: Was there a table in it, chairs?

Mr. Richard Kilbourne: It was a -- I believe there was one table and two chairs, I believe in there.

I believe they said there were two chairs in it.

Justice Tom C. Clark: How large was it [Inaudible]

Mr. Richard Kilbourne: Well they sir, it must have been about, -- about 15 by 20.

It's rather a small room, it would be for a law office.

Justice Tom C. Clark: Just one room?

Mr. Richard Kilbourne: One room there, yes sir, where the -- where the -- in the -- the lady, Mrs. Reeves who was there, I mean that's what she did.

She sat there at her desk, and when people came in, she took their orders.

Justice Hugo L. Black: Is she the only one?

Mr. Richard Kilbourne: Excuse me.

Justice Hugo L. Black: Is she the only one there?

Mr. Richard Kilbourne: She was the only one there at that time.

The head librarian was in the back room.

There were several rooms to the building, all small rooms, I think maybe -- maybe four rooms all together that they get there --

Justice Hugo L. Black: Do they have any other rooms where they have places for people to read?

Mr. Richard Kilbourne: No sir, there was no other room, that was the only room where they took the orders for the books.

Chief Justice Earl Warren: But there were several rooms there that were used for the library.

Mr. Richard Kilbourne: Well they were used for the library, I mean, where they had the early employees working and where they had kept their records and the administrative (Voice Overlap)

Justice Potter Stewart: Well they had to keep the books somewhere.

It was a library.

Mr. Richard Kilbourne: Yes, they -- they had to keep the books on (Voice Overlap)

Justice Potter Stewart: Where were they kept?

Mr. Richard Kilbourne: They had books --

Justice Potter Stewart: In this main room or back in these other rooms.

Mr. Richard Kilbourne: They had books in the main room alright and they had them in the back rooms too and which would not open to anyone.

And the books that they didn't have well they order them and as they said, they even put them on one of the -- the order from the state library.

They -- they have many other kind of – they have a photograph records, tape recordings, all that is supplied at the public by mail.

Chief Justice Earl Warren: How many employees were there in the -- in these other rooms?

Mr. Richard Kilbourne: There were only two people in the whole establishment that day.

Mrs. Reeves, the lady there, she's on duty there.

It was on a Saturday morning.

They close at 12 o'clock and I believe this thing took place by 11:30 in the morning.

And then the other lady, Mrs. Perkins who was at that time, the head librarian was in one of the back rooms.

And that was the only -- those were the only two people in the building.

Chief Justice Earl Warren: Does the record show [Inaudible] aspects --

Mr. Richard Kilbourne: I believe the record -- I believe the record does show that that was a -- that was one of the programs instituted by the Congress of Racial Equality.

Chief Justice Earl Warren: Where do we -- where do we find that in the record?

Mr. Richard Kilbourne: Well, --

Justice Potter Stewart: At page 117.

Mr. Richard Kilbourne: It's not going to be --

Chief Justice Earl Warren: I asked the counsel.

Mr. Richard Kilbourne: Well, it's not going to [Attempt to Laughter] -- I -- I really don't believe it's going to be one specific page and one sentence.

Now one of the – was called as a witness by the State and I spent -- if I was of course prosecuting the case and I spent a great long time, many question -- great many questions trying to develop this and it was in the record.

I don't know if it's in this record but the piece from the next day paper where this witness had stated by Sunday morning that newspaper had stated that this was a program of the Congress of Racial Equality.

It was a demonstration planned by them and that was introduced in the record in the lower court.

Now this particular witness who would give the statement to the paper, she wasn't a friendly witness and I don't know -- I asked her so many questions, I lost -- lost count myself.

But that was -- but I believe that the record is --

Justice Potter Stewart: Which witness are you talking about?

Mr. Richard Kilbourne: Miriam Finegold.

Justice Potter Stewart: Thank you.

Mr. Richard Kilbourne: I believe –

Justice Tom C. Clark: I can get that in 117, the deputy [Inaudible]

Mr. Richard Kilbourne: Well yes, I believe the sheriff -- now what the sheriff testified to as the best of my recollection and I reviewed this several times, was that he had received a telephone call if there was going to be -- something was going to happen at the library.

And he didn't, if I remember right, he didn't -- he wasn't told what it was.

He wasn't told it -- it was going to attempt to integrate the library or anything of that kind.

He just told him something was going to happen.

But I may say so and I believe this is in the record too.

The sheriff testified -- I remember that he testified that on previous occasion when they have had the demonstrations of any kind by the Congress of Racial Equality that he was advised in advance because obviously there was always a possibility of something that might get out at hand and that was to enable him to take precautions to preserve the peace.

And I believe the -- the people themselves, members of the Congress of Racial Equality often called him and told him that they were going to have pickets on the street, something or whatever they're going to do and want police protection and I don't mind saying they called me too.

Well often not.

That wasn't so -- that is one of the reasons I -- I think if the record would demonstrate that it was or one of the --

Justice William O. Douglas: Well this -- does not make it -- to help make it an ingredient of an offense, doesn't it?

Mr. Richard Kilbourne: No, sir, except in this way, the question of whether it was a preconceived plan to conduct himself in such a manner as would forcibly disturb the peace and which is what I believe was charged in here.

Justice Abe Fortas: Mr. Kilbourne, as I read your brief and as I listen to you here, I -- a question occurs to me is the State of Louisiana telling us that in this parish library facilities are not segregated.

That is to say that a Negro can get service from any library facility, any public library facility in this Parish.

Mr. Richard Kilbourne: I would -- yes, I believe that they can.

Justice Abe Fortas: Is that the representation of the State of Louisiana?

Mr. Richard Kilbourne: Well that's a representation of the State of Louisiana which I make and which I certainly stand by it.

Of course they only have the (Voice Overlap)

Justice Abe Fortas: Now these cards -- this library of cards.

As I remember the record, there is a testimony to the effect that the library current issued to a Negro is stamped Negro.

Mr. Richard Kilbourne: That's in the record.

Justice Abe Fortas: Is there any dispute about that?

Mr. Richard Kilbourne: No sir, there's no dispute about that.

Justice Abe Fortas: Does that practice continue?

Mr. Richard Kilbourne: I really -- I just couldn't answer that --

Justice William O. Douglas: Well if there is a blue bookmobile for the Negroes and the red ones for the Whites, isn't it?

Mr. Richard Kilbourne: In other words, it works --

Justice William O. Douglas: How can you say it's not segregated?

Mr. Richard Kilbourne: Well it's in the -- well I say it's not segregated because if a White person wants to use that blue bookmobile, they would let him use it.

If a colored person want to use the red bookmobile, I know color is wrong there but I believe that's right, they would certainly wouldn't be able to refuse them service.

Justice Abe Fortas: Well the record says quite the contrary, doesn't it?

Is there any testimony in the record to support what you have just said?

Mr. Richard Kilbourne: I believe -- it is.

Justice Abe Fortas: (Voice Overlap) testimony of the record with the precise (Voice Overlap).

Mr. Richard Kilbourne: I believe it is.

Now you have to -- you see this certainly would come up actually before.

Justice Abe Fortas: You're experiencing now.

Mr. Richard Kilbourne: Sir?

Justice Abe Fortas: I say it's happening now and I want to ask you about the last statement that you made.

Is there anything in the record to the effect that a Negro who wants to get a book from the red bookmobile can't do something?

There is a testimony of some woman that used to work with the library I've forgotten her name, to the precise officer.

Mr. Richard Kilbourne: Well I -- I do not believe that that would be --

Justice William O. Douglas: I think that -- I think Justice Fortas is referring to the testimony of Mrs. Laura Spears on page 136, 137 of the record.

Mr. Richard Kilbourne: Yes.

I believe –

Justice William O. Douglas: To 138

Mr. Richard Kilbourne: I think she -- I believe she did testify that --

Justice William O. Douglas: Well she said, the only person who will use the blue bookmobile is Negroes and the blue bookmobile serves the three parishes for all Negroes and occasionally if a White person would come to the blue bookmobile, I've give him the schedule when the red bookmobile would come.

Mr. Richard Kilbourne: Well, that -- I believe that would be the only testimony that's in the record.

Justice William O. Douglas: That looks like a segregated library system.

Mr. Richard Kilbourne: Well I -- I often get confused when you -- when you segregated system or integrated system because in Louisiana -- I always feel like we had more integration in the place and then probably any place in the United States, I mean, just when the way people live.

I don't -- segregation and integration seems to mean different things and different policy on contrary.

Chief Justice Earl Warren: Prior to this -- prior to this incident, had Negroes ever gone into that library?

Mr. Richard Kilbourne: You mean to get a book?

Chief Justice Earl Warren: Because they have gone in there for --

Mr. Richard Kilbourne: They all went in there because --

Chief Justice Earl Warren: Gone in there for a service to the library as a White person went?

Mr. Richard Kilbourne: I don't believe I had, no sir.

Chief Justice Earl Warren: Now will you explain to us why that would be if you didn't have segregation?

Mr. Richard Kilbourne: No, I really can't -- I can't explain why that could be accepted.

As I see it was – there's no doubt it was a custom that they did not go in there at the library at that time.

Justice Tom C. Clark: People still run the bookmobile?

Mr. Richard Kilbourne: Yes it is.

The bookmobile still operates.

They close the -- they closed this facility, they closed ones in West Louisiana and St. Helena Parish principally for the reason that they couldn't get anyone to work there.

The -- the only people that work in these facilities or were working in them were women and they weren't paid much and --

Chief Justice Earl Warren: White women.

Mr. Richard Kilbourne: They were White women, yes sir.

Well they have colored women working in there too.

Not in the branches but in the -- in the Clinton -- to where Clinton is.

Chief Justice Earl Warren: But then these -- in these branches and White women wouldn't work.

Mr. Richard Kilbourne: Only one woman then, I think it is time they were White.

Chief Justice Earl Warren: And they couldn't get any White women to work in there if they allowed Negroes to -- to use the library, is that the fact?

Mr. Richard Kilbourne: That's not what I'm saying.

I'm saying they wouldn't work in that because they anticipated that it would be trouble and they didn't want to have any part of it and that was the reason.

They were just scared to work in there either.

Justice John M. Harlan: We're way outside the record.

Mr. Richard Kilbourne: Yes, I guess we are.

Justice Hugo L. Black: Is there any evidence in the record that this library ever been to serve colored person at anytime during its past history?

Mr. Richard Kilbourne: I didn't quite understand all your questions.

Justice Hugo L. Black: Was there any evidence in this record, did they offer any evidence or is there any evidence that there has ever been any person refused service in this library who has the books, any question, White or Black?

Mr. Richard Kilbourne: No sir.

Chief Justice Earl Warren: Is there any record about the availability of this service other than this testimony that -- that Justice Douglas read it on the page 136 and 137, Mrs. Spears that you had this double system, one for Negroes and one for -- one for Whites.

Mr. Richard Kilbourne: Well I don't think there's any -- any other testimony to that effect.

It was I think -- if I remember the record will show you the number of questions along those lines that was objected to and the objection was sustained.

I objected to them because --

Chief Justice Earl Warren: Who objected?

Mr. Richard Kilbourne: I did.

Chief Justice Earl Warren: You did.

Mr. Richard Kilbourne: Yes sir because I didn't feel like -- I didn't feel like I was trying to raise a case or anything to that kind.

I thought it was irrelevant because actually all -- we -- my theory of the case was that anybody that went into the library conducted themselves in the manner that the petitioners did in this case would be violating the statute.

Well Ku Klux Klan when they've come in and say I'm a man conducted themselves that way, I believe you would have the same kind of case.

Chief Justice Earl Warren: Well Mr. Kilbourne, I -- I -- I thought that it was tried on the basis of being a racial case because the -- the sheriff testified the reason he put them under arrest was that these people had come there for a different purpose.

And that was to establish racial equality in your -- and your court in this finding on 140 -- page 140 says clearly the evidence shows that these parties did not congregate when they came to the town of Clinton, to the Audubon Parish Library merely for the purpose of seeking service and that they had a specific motive and a specific intent, and that was as were shown beyond any reasonable doubt to refuse to leave the library even after they had -- had been served and after they'd been requested to leave.

Now doesn't that -- doesn't that make the case turn on a racial question?

Mr. Richard Kilbourne: Not in my judgment, Your Honor.

I believe anybody who'd acted that way would -- would receive the same thing.

That's why I -- I maintain that the question of the color of the petitioners was irrelevant and the question of segregation and integration not only -- only testimony that I remember about the question of the integration came up and it shares the testimony when he said that one of the petitioners had told them that they came over there to integrate the library and that was what he said one of them told him.

And that -- wasn't all that took place on his questioning of the petitioners after -- after the arrest I believe is an abuse of them. I think one of them told them he couldn't read and so that's why I really didn't --

Justice Abe Fortas: Now what about this testimony of your witness that you call, Miriam Fienberg – Finegold.

You called her on page 69 of the record, unless I missed something in here she is still on the stand on page 86 and 87 and you're asking a lot of questions about the court.

You asked her on page 87, you know if some colored person who's been accused service at the library.

The answer, I know five such persons and then it says that if she means defendants and so on.

And that make it appear to me that you have some awareness, Mr. Kilbourne that the trial with racial issues is not far.

Mr. Richard Kilbourne: Well I -- I certainly had the -- actually, I certainly knew what the situation was if you permit me to say so as far as the racial situation was but in trying the case, I maintain that the race of the petitioners had nothing to with because I had the -- anyone who had conducted themselves in a similar manner [Inaudible] five strange men or four of them go in in and lady there them in the library by set and walk in and -- and just sit down and refused to leave.

Well of course, she was afraid and anyone would be and my theory was and it still is, if anyone who conducted themselves in that manner would certainly be conducting in a manner that would conceivably provoke a disturbance of the peace and at all times, I was trying to prove if they -- it would be absolutely there with the intent to which I charge to provoke a disturbance of the peace.

Now I did want to mention about the -- what I said about the --

Justice Hugo L. Black: Suppose that -- suppose they had declined service then what would your position be?

Mr. Richard Kilbourne: As I said in the opening --

Justice Hugo L. Black: On account of the fact that you raise?

Mr. Richard Kilbourne: As I said in my opening statement, the case would not be here today, there would not had been a case.

Now that's exactly what the situation would have been.

Now the talk -- the order -- there was some discussions here affecting about the Constitution.

This man mentioned the Constitution.

Now there's some confusion about just what he meant.

You see only one of them the -- Brown was the only who spoke to us and the others and the other petitioners don't said anything at all.

And when they asked him to leave, the librarian asked them to leave, he said what about the Constitution.

Now just what he meant, he never knew because none of them -- none of the petitioners ever testified but my theory was that he was trying to convey to her the -- the -- his idea that the Constitution gave him a right to -- to conduct himself in a manner that he was doing and she -- and her answer was, we have -- we have it here.

Now that was his [Inaudible]

Justice John M. Harlan: How big a town is Clinton?

Mr. Richard Kilbourne: About 1500 people.

Justice John M. Harlan: Does the record show how old Mrs. Reeves was?

Mr. Richard Kilbourne: Sir?

Justice John M. Harlan: Does the record show the age of Mrs. Reeves?

Mr. Richard Kilbourne: I believe it does.

She's a middle aged lady.

Justice John M. Harlan: Where did these defendants come from?

Mr. Richard Kilbourne: One of them -- one of them lived in Clinton and the others – they were all strangers.

They came from West Louisiana of Parish.

I might say they all -- all of them were young men, young fellows and they were all around 18 to 19 years old except Mr. Brown and he was I think around 29.

He was the leader in this group and I think --

Chief Justice Earl Warren: But these people -- these people and the -- in one of the three parishes that this --

Mr. Richard Kilbourne: Yes sir.

Chief Justice Earl Warren: -- this library served.

Mr. Richard Kilbourne: That's right.

The West -- all of them in West Louisiana which was in the library service.

Chief Justice Earl Warren: Yes.

Yes.

Mr. Richard Kilbourne: Thank you.

Chief Justice Earl Warren: Thank you, Mr. Kilbourne.

Attribution:

The Oyez Project

Featured:

Hamm v. Rock Hill - Oral Argument

Fri, 18 Nov 2011 02:28:56 +0000

Case:

Hamm v. Rock Hill

Media File:

2_19641012-argument.mp3

Related Transcript:

1964_2_argument.xml

Attribution:

The OYEZ Project

Featured:

Robinson v. Florida - Oral Argument

Wed, 16 Jan 2013 22:48:56 +0000

Case:

Robinson v. Florida

Media File:

60_19631015-argument

Related Transcript:

60_19631015-argument

Transcript:

Argument of Alfred I. Hopkins

Chief Justice Earl Warren: James Russell Robinson et al., Appellants, versus the State of Florida.

Mr. Hopkins.

Mr. Alfred I. Hopkins: Mr. Chief Justice, may it please the Court.

This is an appeal from the Supreme Court of the State of the Florida which affirms certain criminal convictions by the criminal court of record in the -- for Dade County, Florida involving 18 appellants.

The adjudication by the trial court was head pursuant to Section 509.141 of the Florida Statutes.

This chapter of this Section is set forth on page 8 of the appendix of appellants' main brief.

To begin with an analysis of the statute, so we'll know what the case is about, the statute is rather unwieldy piece of legislation provides in essence insofar as it is germane to this case that if any person enter a restaurant and if his presence or continued presence is, among other reasons, in the opinion of the management, thought to be detrimental to the business, then the manager may request that this patron leave the premises.

If the patron declines to leave, the manager may then call the police. He's telling the client to leave, he is deemed to be illegally on the premises and subject to arrest and conviction for misdemeanor.

The statute also provides for certain other criteria of undesirability such as persons being intoxicated, immoral, profane, lewd or brawling, but then at the end, it has this rather generalized provision that any other person who, in the opinion of the management, is -- is -- the presence of such a person would be detrimental to the business, and that person maybe ejected from the premises.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: The continue --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: Not in terms of food.

They were seated, if I may explain from the beginning --

Justice Arthur J. Goldberg: They took seats.

Mr. Alfred I. Hopkins: They took seats.

Let me, if I may Your Honor --

Justice Arthur J. Goldberg: (Inaudible) the fact the this Court has so heavily rejected (Inaudible).

Mr. Alfred I. Hopkins: I wish I had seen the point of the trial court.

We didn't raise that particular issue but they were never served any food at all.

What happened was this.

The appellants, constituting 18 persons and being both Negroes and white persons in association with Negroes, entered into a -- a department store in Miami, Florida called Shell's City.

The Shell's City has 19 departments, one of which is a restaurant.

It serves the public, Negro and white alike, without discrimination in 18 of the departments but in the restaurant, it draws the color bar.

Prior to the incident in question, which gave rise to these criminal prosecutions, there had been two other attempted sit-in demonstrations.

They're mentioned very briefly in the record and the consequences of them are not set forth in the record.

On this particular day, which was on August of 1960, the appellants walked into the restaurant in this department store, sat down in about five tables.

They were not served when they sat down and they waited for service.

They waited for about a half-an-hour.

At the end of the half hour period, one of the appellants got up from the table, walked over to a Mr. George McKelvey.

Mr. McKelvey is the Vice President of Shell's City and he is also a general manager of the store.

The appellant asked Mr. McKelvey could he be served.

Mr. McKelvey said, “No”.

The appellant said, "Why?"

He said, "I have nothing further to say to you."

At that point, the appellant went back to join the group and sat down.

Then Mr. McKelvey got on the phone and called -- called the police and told them what was happening in his restaurant.

About 10 minutes later, a policeman arrived, Sergeant John Suggs of the Miami police force.

He then, with Mr. McKelvey, walked to each of the tables and Mr. McKelvey again made his request to the appellants that they leave.

They again declined to leave whereupon Sergeant Suggs took them all into custody.

Now, going back a step, while they were in the restaurant, there were other persons, white persons seated there and were being served.

That is clear from the record.

The manager of the restaurant testified at the trial that the reason for his refusal of service was the fact that the appellants were Negroes or white persons in association with Negroes, and that, in his opinion, would make a detrimental to any -- longer entertain them.

So the source, the substance, the foundation of his reason for refusing to serve them was their color or their associations with persons of color.

There is no evidence in the record that any of the appellants were engage in any boisterous or noisy conduct.

There is no evidence that they comported themselves in any fashion which would have included them in the other specific provisions of Section 509.141.

They were peaceful at all times.

There is no evidence in the record that there was any hostile crowd gathered about the -- the group of appellants.

There was no situation that would have erupted into violence.

No indication of any kind of situation such as that.

The facts are essentially undisputed, the appellants put on no evidence of their own. However, cross-examining Mr. McKelvey and his associate, Mr. Warren Williams, also a vice president of Shell's City, certain additional facts were adduced, which I think should lead to a reversal of the judgments below.

Mr. Williams, when he was questioned, was asked why the people, why the appellants were refused service.

His --

Justice Hugo L. Black: What page is that?

Mr. Alfred I. Hopkins: On page 28, Your Honor, between pages 28 to 30.

I wanted to point out Mr. Williams' statement of a custom prevailing in Dade County, Florida at that time which was August of 1960, some three years and two months ago.

He indicated not once but on four different occasions that there was a custom in Dade County not to serve Negro and White people in the same restaurant.

And he indicated that -- and it said that this custom forced him to do what he did.

If I may read some extracts from the record, at the top of page 29.

Mr. Williams answers question of counsel.

First, the question - "Do you know why these people were refused service at the restaurant?"

Answer - "Well, basically, it is the policy of Shell's City not to serve colored people in their restaurant."

"Why?"

Answer - "That is based upon the customs, the habits, and what we believe to be the desire of the majority of the White people in this county."

Again, towards the bottom of page 29 in talking about why they discriminate, Mr. Williams again answers, "Well, it goes back to what is the custom that is the tradition of what is basically observed in Dade County would be the bottom of it."

Again --

Justice Hugo L. Black: What -- what is the precise point for which you present this argument, this -- emphasize this --

Mr. Alfred I. Hopkins: At a later point in my argument, I wanted to -- to make this position, Your Honor, that we have uncontradicted in the record a statement by the State's own witness that there is a custom prevalent was at that time on the White majority in Dade County, which compelled the manager of the restaurant to segregate and --

Justice Hugo L. Black: You -- you mean that if the sentiment of a community can only be met by taking that course that the Constitution would make that state action.

Mr. Alfred I. Hopkins: I base my position, Your Honor, on the dictum of Justice Bradley in the majority opinion of the civil rights cases.

I grant you it's only a dictum but he did say it.

If I may read from his statement set forth on page 27 of appellants' main brief.

Mr. Justice Bradley said, "Civil rights, such as are guaranteed by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of law, customs, or judicial or executive proceedings."

Justice Hugo L. Black: Well, you know -- have we had -- I'm not -- I'm asking you this for information.

Has this Court ever had a case when it gave that effect to custom of the people as distinguished from custom of the law officers and the state --

Mr. Alfred I. Hopkins: Your Honor, I have not found a case.

Justice Hugo L. Black: -- and the long continued legal practice by having the effects such as we had in the Tennessee case or in the failing to summon jurors where the state officials just did not do it over the period?

Mr. Alfred I. Hopkins: Your Honor, I haven't found such a case and this question in my mind as to what Justice Bradley meant -- what the majority of the Court meant.

Also a fact that the -- one of the early civil rights acts, R.S. 1983 uses the word "custom or law" where --

Justice Hugo L. Black: You're relying on that?

Mr. Alfred I. Hopkins: I am suggesting that that statute repeats the same language and that that may have been in the mind of the framers of the Fourteenth Amendment --

Justice Hugo L. Black: But does that have any relevance to your argument here except insofar as you want to construe the Fourteenth Amendment as in saying that custom of the people -- prevailing sentiment of the people should be accepted as the law of the State?

Mr. Alfred I. Hopkins: I'm suggesting that it may well have been adapters of the framers of the Fourteenth Amendment.

When they use the word "state", we're thinking that simply of the agents of the people, that is the legislators, the administrators, the judges but while have been thinking of the body politic itself.

For example, and examples are rare in this field, but in the case of Neal versus Delaware, the Court was dealing with a provision of the Constitution of the State of Delaware, where the people of the State of Delaware had purported to disenfranchised or limit the franchise to White people.

This is by way of analogy but there was a state constitutional provision adopted by the people of the state and the Court stated in the -- the Supreme Court stated that that provision was void because it was repugnant to the Fifteenth Amendment of the Federal Constitution.

What I'm getting at is this.

It seems to be clear that the people of the state if they act formally and politically, acting the political fashion to the legalism of a constitutional provision can constitute the State.

Justice Hugo L. Black: But what percentage of the people would the evidence require that you shall have that custom and that sentiment?

Mr. Alfred I. Hopkins: In this case --

Justice Hugo L. Black: How would you try that out?

Have you used evidence?

Mr. Alfred I. Hopkins: In this case, we have the evidence.

Mr. Williams stated that it was a custom of the majority of the people.

Justice Hugo L. Black: But that -- that's rather slim to read, isn't it, to rest constitutional decision on as to whether the people have so engrafted it on a -- as a part of their legal system that it has to be used to set aside the state law as unconstitutional?

Mr. Alfred I. Hopkins: Mr. Justice Frankfurter indicated in Terry and Adams and one of his again in dictum that custom could have the force of law, in fact be stronger than the law.

Justice Hugo L. Black: But I think he wrote to that effect in the case from Tennessee with reference to the tax rather they have been taxing railroad, as I -- I hadn't got the name of it, but that was in line with our cases with reference to juries whether the Court's function so long in one way that you can say that that has become somewhat say the custom of the law enforcement officers and the state officials and others might say just the custom of the -- of the people.

Mr. Alfred I. Hopkins: Your Honor, I don't bother my case entirely on that ground but I do suggest it to the Court as a possible way of resolving this case because I say the authority seems to be slim or negligible, so I did feel that I should bring that idea across to the Court in as much as it is in the record and no contradiction by any of the State's witnesses.

Justice Hugo L. Black: While I was asking you, because I'm familiar with those statements and I think you're perfectly right in presenting it.

I have no -- I couldn't understand but I'm criticizing you about the (Inaudible).

Mr. Alfred I. Hopkins: A further statement of the facts insofar as they involved the Florida restaurant and hotel licensing statute.

Florida has, like many jurisdictions, elaborate regulations and statutory provisions governing the licensing of restaurants.

Relevant provisions of our statute, Chapter 509 are set forth in the appendix to the appellants' main brief.

The statute provides that no one may operate a restaurant unless he has a license.

The statute provides for the establishment of the Hotel and Restaurant Commission which provides -- which issues the licenses.

This Commission is set up to encourage the public health safety and welfare, safeguard rather, the public health, safety and welfare of the people of the State of Florida.

No restaurant maybe built until its building plans are first been approved by the Commission.

Justice Potter Stewart: Suppose that's true by house thereto, isn't it?

Mr. Alfred I. Hopkins: Yes, it is true.

Justice Potter Stewart: You can't build a house without a building permit.

Mr. Alfred I. Hopkins: My argument will be or I'll make it now that the licensing requirements and this infusion of state activity and to private enterprise would, in my view, be limited to places of public accomodation, places where significant community interests are affected.

I will make the same kind of argument in this regard as counsel yesterday made with regard to the limit to which Shelley and Kraemer should be extended.

I wouldn't suggest that Shelley and Kraemer be extended to the privacy or the intimacy of a home.

I think the Court has the power and certainly has in many other fields of constitutional law limited the scope of certain of its doctrines.

And I suggest that the licensing argument, which I'll use as a -- as a brief label, there's no reason to extend it to the home that it can be limited to places of public accommodation or situations where significant public interests are affected.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: That's right but --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: -- I think --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: Mr. Justice Stewart was suggesting, what about all the licensing laws, building permit laws, that sort of things.

Justice Potter Stewart: The zoning law.

Mr. Alfred I. Hopkins: Zoning laws, of course.

Justice Potter Stewart: Inspection laws as to plumbing and electricity and else --

Mr. Alfred I. Hopkins: Yes, sir.

Justice Potter Stewart: I presume they have in Florida.

They do in -- also in our jurisdiction.

Mr. Alfred I. Hopkins: Yes, sir.

But as I say that'd be -- I would limit the application of the argument or not extend it to situations of actual privacy.

But I'd like to elaborate a little more on the statute to indicate its scope and indicate the extent to which the State has involved itself in licensing restaurants.

They regulate fire escapes, exits, plumbing, ventilation, all the various safety precautions.

They provide that no employee maybe employed unless he has a health certificate.

The regulations, which were adopted by the Commission pursuant to the statute, go into minute detail down to how much detergent must be put in a deep sink to properly cleanse pots and pans, so much for safety and health.

But the statute doesn't seem to stop there, in fact, it doesn't stop there.

Statute talks about the welfare of the people.

Interestingly, in Section 509.032 on page 7 of the appendix says, "The Commissioner shall be responsible for ascertaining that no establishment licensed by this Commission shall engage in any misleading advertising or unethical practices, as defined by this chapter and all of the laws now enforced to which may hereafter be enacted.

Similar to that provision is another provision on page 23 of the appendix that a license may be revoked that gambling is carried on from the premises.

In addition, the regulations provide for achievement rating cards, which are to be posted on the premises.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Alfred I. Hopkins: It's a big card that has points given for their compliance with various health and safety provisions.

I could show the Court example of it.

Justice Hugo L. Black: Does your argument base still on diverging the regulation of a business, on activity by the State to be treated for constitutional purposes, so as the way it worked, actual state operation of that, doesn't it?

Mr. Alfred I. Hopkins: That would be my argument, Your Honor, and I would base it upon --

Justice Hugo L. Black: Well, there are certain regulations with reference to the home.

Any of those that you mention are with reference to the home.

I -- I have difficulty in distinguishing constitutionally speaking between one private -- one ownership by a person and another ownership by a person.

Mr. Alfred I. Hopkins: Let me, if I may, go back to the case of Public Utilities Commission versus Pollak and that was the case of the radios playing in the buses and three cars here in District of Columbia.

The Court, in the first part of its opinion, stated that the capital transit system, because of its regulation by the Public Utilities Commission, in placing these radios and acting in the way it did, act in the governmental capacity, and that First Amendment rights or obligations were brought in to play.

The Court said that there wasn't a mere fact that there was a franchise granted.

The Court stated that this was a -- an enterprise regulated by a state agency.

The Court went on to say that it deemed as particular significant the fact that the transit company went to the Public Utilities Commission to get a ruling on this particular service, the radios.

Here, I think, if we had gone to the Florida Hotel Commission for our ruling, we would've gotten the same answer necessarily as we've got from the Florida Supreme Court, namely that restaurant owners may discriminate.

But the important thing about the Pollak case, it seems to me, as the Court has said that a regulated enterprise where it acts in a field of significant public importance, public transportation, takes on characteristics of state action, for there is, to use the language of the Burton case, they had interdependence between the State and the -- the private enterprise.

A similar case was Baldwin against Morgan, a Fifth Circuit case which dealt with the terminal building in Birmingham, a railroad terminal building.

And that Fifth Circuit made the same kind of approach that here was a public -- here was a facility serving a public need regulated by the city.

And with this interdependence, they could not discriminate against Negroes in the seating facilities.

I would suggest that if Capital Transit Company or some other public street railway system were to institute (Inaudible) setup on its streetcars that that would be unconstitutional.

I suggest --

Justice Potter Stewart: Both of those cases I suggest there maybe a difference, two differences.

First, you're dealing with a monopoly, a regulated monopoly.

And secondly, you're dealing with instrumentalities of commerce, isn't it true?

Mr. Alfred I. Hopkins: To beat the monopoly situation, the Court said in Pollak that the fact it had a franchise, presumably it was given monopolistic powers was unimportant.

But even if the Court should consider it important, then it would seem that the monopoly situation would -- would lead to an absurd result.

If you say that a monopoly, because it's a monopoly, cannot discriminate but 100 or 1500 restaurants, because they're not monopoly, can discriminate, then you get a very strange result.

Justice Potter Stewart: My guess is only this that if you have a -- only one mass transportation monopoly, then this is the only way people can ride, who -- who need to use a mass transportation.

If you have 1500 or 2000 restaurants in -- in Dade County, Florida presumably some of them will choose to serve only White people, some of them may choose to serve only Negro customers, some may chose to serve both.

Mr. Alfred I. Hopkins: But where the need is there, the need can be as great and significant to the Negro who wants to eat at Shell's City or some other variety store or department store as the need for an equally important service or commodity as transportation.

I don't see that food in the middle of a day when you're hungry is any less important than transportation, and the fact that there is only one enterprise that provides the commodity, should in my mind, will make the constitutional difference.

You need -- you have to have hundreds of restaurants in the community.

One transportation system can serve the purpose.

That is essentially the argument as to the licensing problem.

Justice Hugo L. Black: Your argument boils down, as I understand it, to this that since restaurants are licensed in the sense that people need to buy food and so forth, you leave them to private ownership, but the government has just as much tried to regulate them as it would have if the government were exercising governmental authority, as some nations do, to own all the property and decide how people should use it and presume they are the associates.

Mr. Alfred I. Hopkins: They are -- they are already regulated in a -- in a great sense.

Justice Hugo L. Black: That's right.

They are regulated, but your -- you would strike down the distinction as I understand it on that argument.

Mr. Alfred I. Hopkins: I'm not sure --

Justice Hugo L. Black: You said the mere fact that they were regulated gives the government the right to do these other things, if you say, when it wouldn't have if they were not regulated.

Mr. Alfred I. Hopkins: I think it's the scope of the regulation, which is vast here in this case, because they -- the addition to what I've mentioned, the government can come in.

It has visitation powers.

It can inspect.

Justice Hugo L. Black: Well, they can do that in any hotel or motel, doesn't it?

Mr. Alfred I. Hopkins: They can but I suggest that what's --

Justice Hugo L. Black: Suppose a man was living in it -- many people live in hotels and motels but it's just as thoroughly regulated as the other, would they have to -- could they -- could it be held that the Constitution, I'm not talking about legislation, could it be held that the Constitution itself compels them to accept people into their hotel rooms they don't want or for whatever reason?

Mr. Alfred I. Hopkins: I think when the State has gone this far and indicated this much of a concern and this much of a need for the State in adopting this kind of a -- a comprehensive licensing statute that we have a situation which is analogues to the Burton problem, Burton versus the Wilmington Parking Authority.

The city needed that restaurant otherwise its parking a lot financing would have been in great jeopardy.

Justice Hugo L. Black: Which one was that?

Mr. Alfred I. Hopkins: Burton versus the Wilmington Parking Authority.

Justice Hugo L. Black: Who owned that property?

Mr. Alfred I. Hopkins: The property was owned by the city.

But I don't think that's the only distinction.

I think it's a question of a public need or the public being dependent upon this particular facility.

It was particular --

Justice Hugo L. Black: Did the Court put it on that ground?

Mr. Alfred I. Hopkins: No, sir.

I -- I submit that the two can be related that the Court talked in terms of the extent, the nonobvious ways in which the State has become involved in the private enterprise that agreed to which one is interdependent upon the other, a kind of partnership if you will.

Justice Hugo L. Black: But one of the differences seems to me to be greater than the one as we have adopted in this nation.

Rightly or wrongly, some people think one and some another most think likely consistent with private ownership of property and wouldn't -- you -- you would obliterate that where the government regulates it at all, would you not?

Mr. Alfred I. Hopkins: Only where there is a significant community interest at stake.

I don't believe it's necessary to extend the rule, extend the doctrine to private situations.

I think the Court can deal with this --

Justice Hugo L. Black: If you refer to private, you always ignore the private, what we call, the private ownership is ownership by somebody other than the government.

That's what it meant by private system, isn't it?

Mr. Alfred I. Hopkins: Right.

At that point, I can bring up Marsh versus Alabama which was private --

Justice Hugo L. Black: Marsh versus Alabama has many other phase and connections and your situation does not.

Mr. Alfred I. Hopkins: Capital Transit Company was a --

Justice Hugo L. Black: I may refer to it if you still think so.

Mr. Alfred I. Hopkins: The Capital Transit Company I -- was, I assume, a private enterprise, yet in its operation in this particular respect, it took on characteristics of a governmental activity.

The Court went to great pains to -- to go into that.

Justice Hugo L. Black: Of course, the government could go so far when it would be a governmental activity, where despite terms and contracts and paper writing, the government was actually doing it and purported to put it in somebody else's hand.

I agree with that.

Is that the argument you're making now?

Mr. Alfred I. Hopkins: My argument is that this -- this degree of -- of interdependence, you use the word as --

Justice Hugo L. Black: That's been reached here.

Mr. Alfred I. Hopkins: That's been reached here.

I think there's a matter of constitutional adjudication that this would not pose an impossible job for the Court in drawing lines.

And the classic example would be the state regulation of interstate commerce.

How much is too much?

When does the burden become undue?

It's a difficult paradoxical problem every time that problem arises, but the Court needs it and I believe the Court can read it in this kind of situation.

At same approach, juridical approach in the field of public accommodations.

With regard to a licensing law, I think it should be applied with regard to the Shelley and Kraemer doctrine, which I haven't had time to talk about here this morning, but I adapt the same views as my colleagues from the N.A.A.C.P. that we don't have to get that far that we get into the club or the private home.

That we deal with the scope of the indignity, the scope of the indignity and the humiliation visited upon a great, massive heart of our public, Negro citizen and -- indignity, a humiliation which is visited upon them everyday in every community in they sell, in hundreds of restaurants and in hotels, if you will.

I think it's that the scope of the problem should indicate where a line might be drawn today.

In Burton versus Wilmington Parking Authority, the Court indicated that there was a problem of examining the facts of each case and the multitude of facts that existed in the Burton case led to a conclusion of state action.

I suggest that the multitude of involvement of the State and of the restaurants and of the community at large and of the nation, if you will, require a finding of significant state action in this case substantial enough to bring the action within the proscription of the Fourteenth Amendment.

And I don't believe that hypothetical situations of a home need concerns.

Thank you.

Chief Justice Earl Warren: Mr. Georgieff.

Argument of George R. Georgieff

Mr. George R. Georgieff: Mr. Chief Justice and may it please the Court.

I think by the time this day is over, you will have had quite enough of these cases being so similar, so I'll be very limited in my reply.

First, I'd like to clear away several things.

Basically, I agree with the statement of the facts that gave rise to the action that you are about to review here, with several exceptions.

First, you'll find nothing in this record to indicate that Shell's City restaurant was licensed by any political subdivision of the State of Florida.

There's not a trace of it anywhere.

You will also find that Sergeant's --

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: No, but we are not free to assume that it was, sir.

Justice Arthur J. Goldberg: But then the logical presumption would be that people can (Inaudible)?

Mr. George R. Georgieff: I agree that that would be a logical presumption but in any case, we are confronted with the records that we have here.

It would have been a simple matter to establish that they were or weren't.

Justice Arthur J. Goldberg: Does that admission (Inaudible)

Mr. George R. Georgieff: I beg your pardon?

Justice Arthur J. Goldberg: Does that admission (Inaudible) because of the licensing facts?

Mr. George R. Georgieff: No, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: It's a fact therein the case just as are the situations brought up by counsel here.

Justice Arthur J. Goldberg: I don't follow, and if you say (Inaudible) licensing.

Mr. George R. Georgieff: I can't say that since I don't know, sir.

Justice Arthur J. Goldberg: You don't say that it's (Inaudible) will apply.

Mr. George R. Georgieff: I will say this.

I assume that they were and if they do apply and I'm sure they do, chances are Shell's City was a licensed establishment.

Now --

Justice Arthur J. Goldberg: So, then that was (Inaudible)?

Mr. George R. Georgieff: I assume it was, sir.

Sergeant Suggs, when he went around the tables with Mr. McKelvey and Mr. Williams, both are whom were vice presidents and one a manager of the restaurant, after these people were asked to leave by Mr. McKelvey at each table, Sergeant Suggs asked them or suggested that they should leave before anything else follow.

When they declined, it was then that he arrested them for the commission of this act that resulted in the criminal action being brought against them.

So in that respect, it's somewhat similar to the case that you heard yesterday in which the police declined to do anything and required the individual to go down and make his complaint before the magistrate's court.

Now, there has been a question raised here about whether customs of a community should form the basis for your conclusion that this amounts to a state action here.

And if it does, you should then turnaround and condemn what's happened in Florida in this case.

Now, I think that there's a fair reason why you can't equate customs to state action in this case.

You can impose your sanctions against the people of Dade County if they feel that they preferred generally not to associate in restaurants with a Negro, the White people that is.

Now, I do not, for one moment, suggest that either Mr. McKelvey or Mr. Williams, whoever it happened to be, are free to determine for this Court what the general belief, feeling, or custom is in Dade County.

There are over a million people in Metropolitan Dade County right now.

I hesitate to think that Mr. Williams is qualified to pass on this.

But even if he is, you could only impose sanctions based upon this custom if the government of Dade County or Florida or the City of Miami were to abdicate any duty that it had under your Constitution and our own for that matter based upon this custom.

If they had found, because of what people believe or thought that they wouldn't dare to turnaround and arrest anybody for failing to serve a Negro, and if that became their policy, then I would expect that you would strike it down, based upon the custom as developed by the acts or failure of the act of the law enforcement or the government of the state.

Justice Arthur J. Goldberg: Now supposed you establish (Inaudible), supposed you establish that the (Inaudible), but the restaurants are (Inaudible).

Now the second question is this, recognizing the custom that can serve the (Inaudible) shall be required to serve the -- can't be required.

Do you think that would be a valid question?

Mr. George R. Georgieff: No, sir.

Justice Arthur J. Goldberg: Now let's supposed the establishment changed, (Inaudible) which shall include the (Inaudible) of color people, what about that?

Mr. George R. Georgieff: It's a little different.

Justice Arthur J. Goldberg: What's different?

(Inaudible)

Mr. George R. Georgieff: I'm -- I'm on tenterhooks Mr. Justice -- Mr. Justice Goldberg.

You see, when you add the affirmative mention of a class of people or a creed, take your pick, it doesn't matter, then you begin to evidence by your legislative act, some opinion, some official opinion to which you can direct a complaint.

Justice Arthur J. Goldberg: But you then would have to (Inaudible) --

Mr. George R. Georgieff: More nearly --

Justice Arthur J. Goldberg: -- (Inaudible) would be invalid.

Mr. George R. Georgieff: -- more nearly invalid than valid, if you make that mention.

Justice Arthur J. Goldberg: (Inaudible), supposed that you note the (Inaudible), but you apply this generally to (Inaudible)

Mr. George R. Georgieff: Yes, sir.

What was your question with that illustration?

Justice Arthur J. Goldberg: What would be the practical fact (Inaudible)?

Mr. George R. Georgieff: No, sir.

Justice Arthur J. Goldberg: (Inaudible) by law or a custom (Inaudible)

Mr. George R. Georgieff: It is not in my view, sir.

Justice Arthur J. Goldberg: And why?

Mr. George R. Georgieff: I'll tell you why, sir.

If we do away with 509.141 and wipe it off the books, you're nevertheless confronted either with common law trespass or the statute that we have which is I think 832.01 or 823, I'm not certain which.

Justice Arthur J. Goldberg: Common law justice, criminal justice (Inaudible)

Mr. George R. Georgieff: Yes, sir.

Now, in those cases, an owner of private property exercises whatever he pleases as his reason to evict someone from his premises.

If you leave it to him --

Justice Arthur J. Goldberg: (Inaudible) are you saying that these men could be indicted, or common law (Inaudible)?

Mr. George R. Georgieff: Well, no, sir.

I'll tell you why indictments invariably are returned only in capital cases in Florida.

Justice Arthur J. Goldberg: (Inaudible) convictions brought in the appearance common law justice.

Mr. George R. Georgieff: Yes, sir.

Justice Arthur J. Goldberg: Pardon me?

Mr. George R. Georgieff: I -- I'm sorry.

I said yes, sir.

Justice Arthur J. Goldberg: You agree?

Mr. George R. Georgieff: Yes, sir.

Now, assuming that that is so and it is, if you allow a man who has a farm, a home, take your pick, whatever it is, he has some private property.

If you allow him to determine who he shall have on his premises and if he shall have him and for how long and for any reason, then does it matter that you take a section and create it and you codify that, which you already have extended him as, let's say, your majesty of the law, so that he doesn't have to take it into his own hands, I fail to see any difference.

I -- I agree that depending upon how you approach it.

If you go backwards from your illustrations, you might come to the conclusion that if it doesn't make any difference, since custom is the basis for as you'd reach that but basically, we go forward from poor beginnings to more sophisticated ones.

And if we say to the people who own business establishments, if you feel -- and who is better qualified knowing his clientele that the continued presence of someone here is going to be offensive to your business and will prove detrimental, and you allow to an ordinary citizen in his home, I don't see any difference between the two.

It's one that you extend as a matter of right and law for many years, centuries perhaps, and now one that you simply draw forth in specific terms in relation to business establishments.

I don't know sir that that answers your question but I hope it does.

Now, I'd like to advert to Marsh versus Alabama.

That seems to be one in which there was almost to complete abdication, the people were denied the right to voice their expressions as guaranteed by the First Amendment.

Now, I don't know what the philosophy of this Court was when you said what you did in Marsh.

But I imagine that part of it might have been a real fear that if you didn't reverse Marsh, that it would be a simple matter for the states to turn overall their communities to private individuals to sell them and they would rule them as they like, like company towns.

Now, if that is real, it might be a reason I don't know.

But I -- I would like to dwell on Shelley as the basis for the request on the part of these appellants that you should implement what you did there in this case.

Now, there's been so much written about Shelley versus Kraemer that I suppose that one can speak of it, but many case, I know the one thing that you did not say about Shelley.

You did not say that the person who sold to Shelley had to sell to him.

All you did say was once Shelley earned the lawful right to title to that property, it was not proper, under the Constitution of the United States, for the State of Missouri to deprive him of the right to the enjoyment of that property.

Now, he had earned it by a free sale, by the party who had owned it, and he merely sought to enjoy that right.

If these people who came into Shell's City's restaurant had been successful in securing services from the management --

Justice Hugo L. Black: Did they have a contract with him?

Mr. George R. Georgieff: I beg your pardon sir?

Justice Hugo L. Black: Did they have a contract with him?

Mr. George R. Georgieff: They had nothing, sir.

Now, had they been able to secure services from him in exchange for their money, you would have the situation that you do in Kraemer.

If he sold them the food and then said, "Well, now, look, wait a minute, you can't eat this food in here.

Take it out, but you can't eat it in here because we don't allow that based upon custom."

Then you'd have the comparable situation that's reflected in Shelley.

But you don't have that here.

All you have is somebody who says, "I want a guarantee not only that I can contract but that when I do, it will be as I wish it to be."

Justice Arthur J. Goldberg: Well, under your statute it's authorized the restaurant owner that after he sold the food (Inaudible)?

Mr. George R. Georgieff: Yes, sir, if something occurs.

Justice Arthur J. Goldberg: You are (Inaudible) in his mind thinks detrimental to the system in his opinion --

Mr. George R. Georgieff: If he puts --

Justice Arthur J. Goldberg: -- would the statute authorize to (Inaudible)?

Mr. George R. Georgieff: Well, sir, I'm at a loss now.

We don't have any decision which explains this statute.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: Well, there are some who say it would.

I -- I'm not certain that it would.

I assume that the most I could say in honesty, not departing from my position or doing harm to those who did -- to that and the appellants is that if he were to put the people back in the position that they were before they came in, that is to say gave them back their money and there were a genuine basis upon which he could conclude that there were detrimental, I'd take it that that is possible under the statute.

Justice Arthur J. Goldberg: Does that apply now to the (Inaudible) given that your statute (Inaudible)?

Mr. George R. Georgieff: I should assume so.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: That's not our defense.

It was never raised to a point that was raised at any stage of the proceedings in this case, Your Honor.

Justice Arthur J. Goldberg: What would you think?

Mr. George R. Georgieff: What would I think?

You would have to demonstrate, I suppose.

Well, as a matter of fact, I dare say that by the provisions of the statute, the very statute, assuming that it's correctly quoted here, I don't have any reason to believe it isn't, if the -- if you leave it to management, as you do in ordinary cases of trespass, there is no way.

How do you explain to somebody who does not want you in his home that you belong there?

You don't.

Justice Arthur J. Goldberg: So, you're not.

Mr. George R. Georgieff: That's right.

And based upon --

Justice Arthur J. Goldberg: Consider you are (Inaudible).

Mr. George R. Georgieff: We do that everyday in an ordinary trespass, sir.

That results in criminal action.

It doesn't always but it may.

Justice Arthur J. Goldberg: I don't follow it here.

You said that in the legal criminal action of trespass, you can (Inaudible), get out, and that would make this (Inaudible) as the trespass charge.

Here that is not the case (Inaudible).

Mr. George R. Georgieff: Is that not the basis of the private owners order to get out.

His own opinion that he doesn't want him there.

Justice Arthur J. Goldberg: (Voice Overlap) --

Mr. George R. Georgieff: I don't mean to question, Your Honor, don't misunderstand, but I don't see how we can separate the two.

Isn't it opinion that generates an order to leave however arbitrary?

Justice Potter Stewart: The basis is not the "get out".

The basis was the refusal to leave after being told to get out, isn't it?

Mr. George R. Georgieff: Of course, it is.

No question about it and it is in 823 as well.

You become a trespasser after the notice --

Justice Potter Stewart: Right and I --

Mr. George R. Georgieff: -- as opposed to one who simply enters on a property.

Justice Potter Stewart: I suppose a -- a -- I suppose it's conceivable that in a defense for -- to a trespass charge, you could say, "He didn't tell me to get out," or -- or while he said it, "You really didn't mean it," which is at least possible.

Mr. George R. Georgieff: Perhaps it is, Your Honor.

Now, as I say, putting these two side-by-side, you simply have an open legislative announcement as to one where there is to the other, it's been something that's developed over the years.

Now, if I, both as the private homeowner and as a restaurant operator, decide as to the same person, one, that I don't want him in my house once he's in there, and I'll tell him to leave, and that I no longer want him in my restaurant and I tell him to leave, I fail to see the difference.

Now, if there is, perhaps, I can go further toward answering your question, Mr. Justice Goldberg, but I just don't see that there is any difference.

Justice Arthur J. Goldberg: Well, suppose (Inaudible).

Then the question your legislature comes with when it enacted the statute is to find specifically if it deals with an interference (Inaudible).

Then my question is how do (Inaudible) and charged by showing the amount of (Inaudible).

Then it could be said that the (Inaudible).

Is this not where you apply (Inaudible) not just undesirable and unlawful?

(Inaudible) to find why a person must be accused (Inaudible), he could be only made or it could be (Inaudible).

Mr. George R. Georgieff: Well, I don't think so, sir.

Justice Hugo L. Black: How did your court read it?

Mr. George R. Georgieff: I beg your pardon, sir?

Justice Hugo L. Black: How did the court read it?

Mr. George R. Georgieff: They didn't read it all.

They simply said that on its face, it was valid.

They didn't enter into that area.

Justice Hugo L. Black: They didn't enter into discussion at any stage?

Mr. George R. Georgieff: No, sir.

Now --

Justice Byron R. White: (Inaudible)

Mr. George R. Georgieff: They did, sir.

In as much as there was no question as to evidence, they stated, and I think you'll find in their opinion that's in the -- in the appendix that since the only point raised was the validity of 509.141 that they concluded that on its face, it was totally color blind and perforce constitutional.

Now, of course, I don't know what went into their deliberations but they did not discuss the matters that are brought up here.

Now, if I may, Mr. Justice Goldberg --

Justice John M. Harlan: But then we have to take the statute, the construction of the statute's meaning that your court, the Florida court and not a state law, has said that this statute means that an owner can exclude somebody for any reason that he wants to.

Mr. George R. Georgieff: That's correct, sir.

Justice John M. Harlan: And we're bound by that construction, aren't we?

Mr. George R. Georgieff: I'd like to think you were.

If I may, Mr. Justice Goldberg, in answer to your question, it is by nature -- by the nature of the property that the statute breaks down into four sections.

And in the fourth, when you get to the section which says, "And any other person".

Now, I would assume that in ordinary circumstances wherever you might be that these enumerated areas or acts or situations would probably provide a valid basis for anybody to act in defense of themselves, their property, etcetera.

Now, when you get to the other, the area where it's left to the individual, it is because it is private property that they have to extend in some latitude if the only reasons you could were for those enumerated, while there wouldn't be enough paper in the world to write out all the reasons.

You have got to leave something to an individual as you do in ordinary trespass, as you do in the -- in other situations.

If you do not, then you wind up in a hopeless mirage.

You either -- you either enumerate beyond belief or you leave it totally without mention.

Now, I don't pretend to know why they bothered to say it the way they did in the legislature, but I assume that they had a valid reason.

And so far, of course, it hasn't been changed except by an insubstantial alteration by the '61 Legislature.

But it seems to me that if you don't allow some latitude for an individual to determine what, in his view, is going to be detrimental, even if it'd be this, however vague you may consider it to be, then there isn't anything that you can give him.

If he isn't drunk, if he isn't brawling, if he isn't offensive or abusive, then theoretically, you can't put him out even if you are offended by it and even if you do know that it will be detrimental.

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: Well --

Justice Arthur J. Goldberg: (Inaudible)

Mr. George R. Georgieff: I understand that there are parts of it which are quite broad.

I don't know how much -- how specific we could be and still have anything that is workable.

Justice Arthur J. Goldberg: This was construed by your Supreme Court in the last phase other than in this case?

Mr. George R. Georgieff: No, sir, and then only on its face.

There has been no construction of it as such.

I might add though that these individuals, whatever we may personally think about the conduct that resulted.

One thing they knew for certain, they were neither of the enumerated things because I don't think there's any doubt about that.

The fact is that they went there planning to do this very thing which is apart from what we're discussing here.

But now a question of whether this is a state action.

There has been the hue and cry raised that they were informed against by the office of the State Attorney, that they were sentenced by a judge of the criminal court of record, that the District Court of Appeal acted on it, that the Florida Supreme Court acted on it, and that the Attorney General is now a part of it.

Well, by law, we're required to be.

Any criminal action in the State of Florida as is probably true in most of the jurisdictions including the District of Columbia are brought by some prosecuting arm of the Executive Branch.

I fail to see how this type of action makes it state action.

I further fail to see how Sergeant Suggs, when he arrested after a refusal to leave in the face of this legislation, was doing anything but what he was required to do as a part of his duties as a law enforcement official.

Now, if he is given the ability, the duty, the responsibility, the choice to decide whether a given act is or isn't, then we don't need this Court or any other court, because if our police officers can decide what is a crime, then we don't need any courts.

And before too much longer, if they become proficient at it, we won't need laws.

But the point is, the legislation as it exists, at least until you have had a chance to review it and pass upon it, is valid.

And we've got to presume that if you refuse to leave after you've been asked, in accordance with the statute, and this was in the presence of the police officer who asked them and even suggested that they leave before he arrested them, then have committed those acts which, if they result in a conviction, constitute the misdemeanor of which they ultimately were found guilty by the trier of fact.

Now, custom is one thing, police action is another.

Any crime that is committed results in some type of prosecution, I would hope.

Now, admittedly, there are times when choices are made as to which way to go but that is not done by a law enforcement, that's done by a prosecution and/or the court which is the proper place for it to repose.

But it's idle to say that because all of these circumstances which led to the case finding its way here, that becomes state action.

The state did not advocate anything.

They have a statute which simply says that these people are going to be allowed to exercise the right over their property.

And therefore, anybody who flies into the face of this request, after it's been made in accordance therewith, is guilty if the -- if it results in the trial in the finding of guilt.

Now, there was a reluctance yesterday on the part of some people to enter into the question of whether this approaches religion, I am not so reluctant, I don't seen how you can avoid it.

Let us assume, if you will, that in a given ceremony in a Jewish Synagogue, you have four Catholics come in carrying crucifixes, who sit themselves in the front row.

This is an open and public indicia of a difference of creed, which is offensive to the Jewish populace and to the rabbi.

What can he do?

Well, I suppose he could ask them to leave, but if they decline, what could he do?

Could he force them to leave?

Ask them or rather force them to get out?

Could he call the police?

I think he should be free to.

Now, the difference between creed and color means absolutely nothing if you look at the constitution that assures that they are guarantees.

And yet, here, we don't have anything different, not in the slightest.

If you say to me that these people cannot be discriminated against by private citizens who hold themselves out to serve the public, I say to you that there isn't any reason why the rabbi should be permitted to call upon law enforcement.

Justice William O. Douglas: Of course, you have to have the First Amendment right up to now, the right to run a business as you use, it hasn't been excluded within the First Amendment.

Mr. George R. Georgieff: No, that is true, sir.

Well, it isn't all as I would have it, if you understand.

I -- I realize that.

And yet, it seems to me that when you get to the area of the differences between creed, condition of servitude, color, and so on, I can't bring myself to believe that we can effectively separate it when it suits us and bind it when it doesn't.

Now, let's take the situation --

Justice Hugo L. Black: I thought the defense argued yesterday that this did violate the rules of -- did violate their rights under the First Amendment, that they had a right to go into the store, stay there whether they wanted to go or stay or not in orders that they might advocate their views about their opposition to segregation.

Mr. George R. Georgieff: I think they have that right, yes, sir.

Justice Hugo L. Black: I thought that argument was there?

Mr. George R. Georgieff: I was out for some time.

It's possible I missed it, Mr. Justice Black, but I think that they do have that right.

Justice Hugo L. Black: Do they have the right to go to a --

Mr. George R. Georgieff: I think you've said that many times over.

Justice Hugo L. Black: Do they have the right -- that gets down to this question.

Do you have the right to speak under the First Amendment, do you also have the right to go to a place where there's a valid law, assuming its valid, but you can't go to interfere with somebody else to exercising the right of free speech?

Do you have the right to go (Inaudible) or you must do it somewhere else?

Mr. George R. Georgieff: Well, sir, let me put it this way.

You have -- they have the right to go into the Shell's City's Restaurant but once they were -- once the management determined that they no longer wanted them in there, they did not have the right to remain.

Justice Hugo L. Black: Well, that's what I'm talking about.

Mr. George R. Georgieff: That is correct, sir.

Justice Hugo L. Black: They have no right to be at a place.

Mr. George R. Georgieff: No, sir.

Justice Hugo L. Black: Does the First Amendment guarantees that people shall go to places where, under the law, they could not otherwise go on the ground that they've got to be allowed to advocate their views, wherever they please, whenever they please, and however they please?

Mr. George R. Georgieff: Not in my view, sir.

To the licensing provisions that I might add, which I didn't mean to implement by saying that they weren't -- there wasn't any evidence that there was a license in this case.

But I have set out in my brief the fact that automobiles are probably the most licensed thing in the State and probably, in most States.

Now, I'd like someone to tell me why it becomes different when you apply it to an automobile if you're going to use that as the criteria.

Now, again, like I say, we can't separate it when it suits us for our argument and then bind it together when it doesn't.

If you're going to say that licensing requirements form a satisfactory basis on which you should conclude that there is sufficient state control to make it state action, then I submit that every car that's driven in the State of Florida drives as a result of state action.

Every home that's occupied by anybody -- we've got a homestead exemption law that says that if I become a literal popper, they fall on every depth, that they could do everything they'd like to me but they can't take my home from me.

Now, that's a recognition by the State that they're going to ensure my castle to me.

Now, if they go that far, which is even further than what they've don here by a longshot, does it not follow that they have a right to tell me who and who I shall not have in my home or that anybody may come in and it suits his fancy.

Now, I'll agree and there's a similarity.

I think we'll all agree that someone has a right to come to my door and ask of me what he will.

I may either reply or tell him to go on about his business just as in Shell's City here.

They came upon the premises, sought to do business with these people, they were declined the right to do so and they were asked to leave.

Not at all different from what I might do in my home or you or anybody else.

Now, if we extend that on the theory of the licensing requirements, then I submit that there is no end to it.

You can go on at infinity.

Now, I don't pose a threat to you, that's foolish, I wouldn't suggest that these things are going to happen tomorrow or the next day or any day after that.

But if you're going to put it within the legal framework that they say you should use as one of the basis then I say, don't separate it as to the others which you know will be there one day.

I --

Justice Arthur J. Goldberg: (Inaudible) this record that's filed in about the government's (Inaudible).

Mr. George R. Georgieff: They were not told why but the statute contemplates that they needn't to be told why.

It wholly requires that if management had the opinion, that's all that's necessary.

Now, I hasten to add, if Your Honor please, that the -- the point raised by brief of amicus is one which is totally foreign to this case.

Justice Arthur J. Goldberg: Do the same (Inaudible)

Mr. George R. Georgieff: Well, I was reserving some time, but if -- if you like I can add --

Justice Arthur J. Goldberg: (Inaudible) time that suits you.

Mr. George R. Georgieff: No, but based upon the positions which has been presented by counsel for the appellants here and the total nonapplicability of Shelley and certainly not even (Inaudible) which gives the people the right to contract under the Court of Appeals' decision.

It seems to me that unless you're ready to determine that an ordinary citizen in the pursuit of his rights -- now, he doesn't have property rights, he has personal rights to handle his property the way it suits him, unless you're ready to determine, and determine that these rights shall no longer be his own, and unless you are ready to upset the civil rights cases, I think that your only result can be that you affirm the action of the Florida Supreme Court and deny this appeal.

Featured:

Bell v. Maryland - Oral Argument

Wed, 16 Jan 2013 22:48:00 +0000

Case:

Bell v. Maryland

Media File:

12_19631014-argument

Related Transcript:

12_19631014-argument

Transcript:

Argument of Jack Greenberg

Chief Justice Earl Warren: Number 12, Robert Mack Bell et al., Petitioners, versus Maryland.

Mr. Greenberg.

Mr. Jack Greenberg: May it please the Court.

This case is here on writ of certiorari to the Court of Appeals of Maryland.

Petitioners have been convicted of violating Article 27, Section 577 of the Public General Laws of Maryland, the trespass statute which is the same statute that -- that was read to you by Mr. Rauh and was the statute that was involved in the Glen Echo case.

They were indicted on a two count indictment, which appears on page 6 of the record stating that the petitioner unlawfully did enter upon and cross over the land premises and private property of a certain corporation in the State to with Hooper Food Company, Inc., a corporation, after having been dully notified by Albert Warfel, an agent, not to do so.

Second count of the indictment charges that they entered this property which was then and they are posted against trespassers.

They were found guilty on Count One, fine $10 and caused the fine being suspended.

They were acquitted on Count Two.

Petitioners claim that their convictions violate the Equal Protection Clause of the Fourteenth Amendment and that the criminal proceedings and judgment enforced racial segregation against them.

They also claim that the judgments below violate the Due Process Clause of the Fourteenth Amendment in that there was no evidence to sustain the conviction under the indictment and statute which have just been read.

Or if it were to be held that there was sufficient evidence, the indictment statute did not give them fair notice required by the Due Process Clause.

Justice William J. Brennan: Was that question raised in the state court?

Mr. Jack Greenberg: It was raised, I believe, sufficiently to present it here particularly in terms of the free speech argument and I think vagueness argument and free speech argument are really different ways of saying the same thing in a case such as this.

Justice William J. Brennan: Well, is that, Mr. Greenberg, you say it was not raised in terms?

Mr. Jack Greenberg: It was not raised in terms but I think it was raised sufficiently to be here as in Wright against Georgia and other cases where free speech and vagueness in a case such these are intimately linked.

But --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Well, --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: I -- I go along with that.

I think we argued it first.

I don't want to be said that we're adopting it.

It appears at length in our certiorari petition and in our brief.

Justice Potter Stewart: He's adopting your argument position?

Mr. Jack Greenberg: Well, I would let him characterize it.

But it -- it is an argument upon which we rely.

However, we will not argue it orally because this is the only argument the Solicitor makes and I suppose this is the one that he will be arguing orally.

The facts of the case are in many respects similar to the facts of the other cases which have just been argued.

June 17th, 1960, a group of 15 to 18 Negro students among whom where the petitioners who numbered a dozen, entered the lobby of Hooper's restaurant in Baltimore, they were met by the hostess at the door or rather within the restaurant, beyond the door and she stated, "I am sorry but we haven't integrated as yet."

The restaurant manager, Mr. Warfel, whose name appears in the indictment, came up at this point and began to talk to the petitioners.

He testified that he told them it was company policy that we haven't integrated the restaurant.

And then he said in the process of translating the company policy, the group broke.

They've brushed by us and sat at various tables in the restaurant and after they were seated, they proceeded to hedge (Inaudible) which is explained as then spreading out and sitting at various other tables in the restaurant.

The owner of the corporation operating the restaurant arrived and instructed Warfel to call the police.

When the police arrived, the petitioners were seated at various tables, some upstairs, which was a restaurant, and downstairs, which was a cafeteria and grill.

Warfel read the Maryland Code to the petitioners.

Clerks and waitresses took down their names and then Mr. Hooper went to the magistrate to obtain warrants.

There is no question that they were refused service and an effort was made to eject them from the restaurant solely on the basis of their color.

Hooper made it clear that he agreed with the petitioners' objective.

He testified that, "I go on record as I favor what you people are trying to do."

He also said, "I told Mr. (Inaudible), who was one of the petitioners here, that I felt personally that it was an insult to human dignity.

I sympathize with it and also told them that my customers govern my policy."

Petitioners' equal protection argument in this case is presented in three parts and it's essentially the same, the petitioners have made in the -- in the cases preceding this one that is that we submit that the arrest and conviction here served only to enforce the racially discriminatory decision of the owner and then consequently, under Shelley against Kraemer, which was argued at length by Mr. Rauh and other cases holding similarly.

The State has participated to some significant -- significant extent in enforcing and encouraging racial segregation and that such state action is forbidden by the Fourteenth Amendment.

We wholly urge such an argument upon the Court but in view of the fact that it has been argued at length previously, we will prefer to concentrate in this oral argument upon other aspects of the question.

Petitioners submit -- submit also as in the other cases that the choice of the proprietor was not an authentically private decision but as -- is abundantly demonstrated by the record was influenced by the custom of the community.

In fact, this -- in this case, it is more clear that in any other because Mr. Hooper said that, "I wholly believe in what you're trying to do.

I completely agree with you and sympathize you but my choice is influenced by the community."

This choice of the community in turn, we submit, was to some significant extent and that is the terms of burden to a significant degree.

And we submit that in this case, the significant has been influenced by historic pattern of Maryland laws which had the purpose of sustaining a segregated society.

I think it should be recognized that upon these convictions occurred, Maryland had not, in the sense that has been suggested here, turned the corner and started enacting public accommodations, legislations and so forth.

At this time, the Maryland was a State without laws of that sort.

And we say that under such circumstances, the very least, state action should be held to have a role in state custom unless something to the contrary, something contrary to common experience to show.

We say that it is beyond belief that a State such as Maryland, which although its policy is now in the process of change, has not helped to create and shape the existing state, what, segregation custom.

Well, for many years, it has had a statutory policy of requiring racial segregation in many institutions of public life.

This is not the charge, the present regime in the State with wrong doing but rather simply to recognize that state responsibility for a custom having once attached, continuous to play a role in what occurs in life.

And to this extent, we submit, the State continuous or at least at the time of this conviction certainly did continue to be involved to a significant degree in the manifestation of the custom which it had helped to create, shape and perpetuate.

It maybe that -- that a simple analogy would -- the -- instructive or descriptive it's -- as if one has poisoned the well and then later repented and sought to cleans it.

Nevertheless, some of the residue of the poison remains and members of the public drink it.

All we're saying is that the man who poisoned the well is, to some significant degree, involved in the owners that has before and those who drank the water even though he has repented and made efforts to undo what he did.

Justice Potter Stewart: I suppose this is a silly question.

It's already been made in the previous case and that is whether customs produce laws or laws produce customs.

Mr. Jack Greenberg: I think both occur obviously.

Customs produce laws and laws produce customs but to the extent that laws produced or shaped customs, the State is significantly involved in them.

Justice Potter Stewart: Generally speaking, that laws reflect the -- the mores of the community that they rather than create them.

Mr. Jack Greenberg: Well, I think sometimes they do, sometimes they represent either the enlightened or unenlightened views of the community leaders who are either ahead or behind of the community.

I -- I think it depends on the law and the situation.

Sometimes one and sometimes the other but I think it is beyond doubt that the -- once the law is on the books, it then plays a role in influencing and -- and educating, encouraging and shaping figure (Voice Overlap) --

Justice Potter Stewart: Now, there's no law of any kind here directly affecting this restaurant, was it?

Mr. Jack Greenberg: Not in the segregation sense, no (Voice Overlap) --

Justice Potter Stewart: That's (Voice Overlap).

The -- the laws you have collected in footnote --

Mr. Jack Greenberg: It's on page 30 --

Justice Potter Stewart: -- in page 31 and page 32, what you been able to find, I suppose (Voice Overlap) --

Mr. Jack Greenberg: That's correct.

Justice Potter Stewart: And now as I understand it, Maryland has a -- a law looking at a way requiring non-discrimination.

Mr. Jack Greenberg: Covering some of the county of the State.

Justice Potter Stewart: In -- in some of the county.

Mr. Jack Greenberg: Yes.

And Baltimore has an ordinance also, this has happened since these convictions.

In addition to the custom argument already argued, petitioners would urge upon the Court other fundamental considerations that is that in this case, as in the other cases at bar, the State has upheld the claim of the proprietor, in this case, called the property right against the claim of the petitioners for equal treatment.

The Criminal Court of the City of Baltimore has held as a matter of Maryland law, in the absence of appropriate legislation forbidding racial discrimination, the operators of privately owned restaurants, even though generally open to the public, may discriminate against persons of another color or race however if you're unjust such a policy maybe deemed to be.

And the Maryland Court of Appeals has held in the context of the racial issue in this case that private citizens retained the right to choose their guests or customers and furthermore, that this and maybe enforced by the criminal law of the State.

Now, we submit that this is not the neutral declaration of a common law that always was and emanated from nowhere but rather the expression of a ranking of values on behalf of the State which in the terms of Erie, we quoted in our brief that there is no transcendental body of law outside of any particular state but obligatory within it unless and until changed by statute.

And Justice Holmes, as a number of times written in the same effect as quoted in Erie and -- and in our brief.

But the law of property of a State and its ranking of property claims as again -- against others is, we submit, subject to the requirements of the Fourteenth Amendment.

It's held in Marsh against Alabama and Shelley against Kraemer, that property rights must be created and for subject to the Fourteenth Amendment.

We submit that the values of the Fourteenth Amendment by the nature of their constitutional position are dominant.

The State denies equal protection of the laws when it ranks above these values, the claim of a proprietor open to the public and licensed by the State for the purpose of being open to the public, the right to exclude some persons from his establishment so in the grounds of race.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Well, I would say that the Fourteenth Amendment, Mapp against Ohio, Mr. Justice Harlan's opinion in Poe against Ullman and other cases indicate that there is a constitutional right of privacy which in the -- the case of a private home, I would submit , would be dominate against something of this sort.

I think the public place can make no such claim and in fact is so thoroughly regulated that -- that it's not the same sort of situation.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Well, I think if it were a genuinely private club, yes.

It -- it would partake of the privacy protection if it were a -- a sham, a -- a place open to the public under the name of the club and there have been cases under public accommodations statutes to this effect and when it's been found to be a club it has been held to would have the right to make choices of this sort no matter how reprehensible.

And when it's been found to be a place that's going under the name of a club just to be able to discriminate the state commission that you said you can't do that.

And I think it would be the same kind of result.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: A bind cooperative?

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Well, I would think -- again, I -- I am not too familiar with the operation of -- of that type of -- of an operation.

I just wouldn't know.

I think it would depend upon how genuinely public or private it was.

I just don't know.

I once belonged to a cooperative grocery store and as far as I can tell, it's like any other grocery store and I don't think that it should be permitted to discriminate.

On the other hand, if there were some element of privacy in it, it might be different.

The church case we discussed early this morning would involve considerations of First Amendment rights of religion.

And again, I don't feel that it's -- it's necessary to argue how something like that would come out at the time like this.

I think that the values to the -- the considerations to be taken into account are -- are fairly clear.

It is the position of petitioners that the extent that this ranking is in the form of the application of state power or refusal to act to protect the Negro citizen in this claim of equal service.

The State has as much responsibility as if it has affirmatively sanctioned the exclusion in terms of -- of positive legislation.

State inaction in various circumstances has been held to deny equal protection of the laws and burden the failure of the State to insist upon a non-discrimination clause and at least would play a role in the decision was held to -- was so characterized.

Terry against Adams, of course, was a case in which in most views, the State did nothing and thereby, state action in the constitutional sense appeared.

Various cases in the Court of Appeals to the Catlett and the Lynch case cited in our briefs take the issue and deem the civil rights cases themselves.

This Court assumed that the States were living up to their responsibilities in taking the affirmative action necessary to protect the Negro citizens and only in view of this, was the judgment of the Court rendered as it was.

The form that the state protection would have to take is not an issue at this point.

The only thing petitioners submit is that a fortiori, certainly, a criminal conviction cannot be imposed under these circumstances.

The principle argument made against this type of position is that the logic leads too far that -- that there is no state responsibility here because it would lead to an absurd result in the -- in the case of a club or a church or a home.

I notice no one -- everybody gives the case in terms of little boy asking for cigarettes or somebody been thrown out of a home or somebody being thrown out of the church was the case we have here.

It's a case of a place fully opened to the public, fully subject to regulation.

Indeed, due process of law is not taken away from such a property owner when a state requires to serve Negroes.

I would submit due process of law would be taken away from a home owner if he were required to have a guest in his home no matter what the race.

And we submit that these reductio ad absurdum arguments are self-defeating because by being so far removed from the type of case that we have at hand here.

They indicate type of case we have at hand is one surely within the protections of the Fourteenth Amendment.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: No, I would not.

In fact, I have -- that's my case.

I have a case involving not a lunch counter but a restaurant, that's correct, yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Yes, I would say the State has an affirmative responsibility to protect and form that would take is -- involves other questions but certainly, a fortiori, we can't have an arrest and a conviction and -- and we would submit that for these reasons, the conviction in this case should be reversed.

Argument of Attorney General

Mr. Attorney General: Mr. Chief Justice, may it please the Court.

The facts in this case are certainly different, we believe, and -- from the other cases presented here particularly on the application of the trespass statute.

For here, there was a warning given.

The petitioners have perhaps crossed over the manner giving the warning but it's perfectly clear from the testimony of the leader of the group (Inaudible) in the record that they were not permitted to seek themselves in the restaurant due to the statement of the hostess that they had not integrated yet.

And the trial court took this into consideration, if you will note the opinion of Judge Burns in the court below where he noted that they were refused seats in this restaurant.

The physical layout of the restaurant is perhaps important to the Court's decision here in that there was a lobby.

The petitioners entered the restaurant through a revolving door and came into a room known or referred to in the record as the lobby.

At the end of the lobby, arms of the door there are four steps.

At the top of these steps, the hostess was stationed.

And it is the common practice in this restaurant for the hostess to see all customers coming into the dinning area.

There is a fence separating the dining room and the lobby in this restaurant.

Now, the Maryland trespass statute not only prohibits entry but it prohibits crossing over.

These petitioners crossed over a portion of the premises -- of the restaurant premises after being warned not to do so.

Not only did they enter the dining area and go downstairs after warning, they crossed over a portion of the premises.

And this is precisely what the Maryland statute prohibits.

The -- there's another element in this case which is of significance, we believe, and that is that the police refused to arrest the petitioners.

The polices were called by the owner some time after the petitioners had entered the restaurant and after the owner and the manager of the restaurant had, at length, conversed with the leader of the group to try to persuade them to leave peaceably.

He explained his policy to them.

He stated that he was segregating, refusing service simply because his customers did not want to eat with Negroes.

That is the only reason he gave.

The police were called by the owner after he could not persuade these persons to leave and when the police arrived, they refused to even read the trespass statute.

This was done by the restaurant manager himself.

The police took no part whatsoever in the goings on in the restaurant itself.

The owner had to go all the way down to the police station to swear out warrants.

He went down to police station and the -- the magistrate apparently called or was called, it's not clear from the record which by the petitioners and they made arrangements to voluntarily come down to the court the following Monday on their own recognizance.

There was no custody taken.

There was no arrest.

The State in this situation is certainly a neutral party.

Now, we feel that under the facts and circumstances of this case that this Court is faced with a square decision on whether state criminal trespass conviction of Negroes protesting racial segregation policy in a private restaurant, in a private building constitutes state action proscribed by the Equal Protection Clause of Fourteenth Amendment where neither local laws nor custom requires segregation.

Now, the mere recitation of -- did statutes does not, in our view, constitute any state custom on the part of the State of Maryland.

As far back as 1960, Chief Judge Thompson of the United States District Court in the District of Maryland in a case in which custom was a factual matter before the court decided in Slack versus Atlantic White Tower.

That as far back as 1957, there was no custom of segregation in -- in Maryland.

Furthermore, there is no evidence before the Court in support of the petitioners' contention that there was such a custom.

On the other hand, the petitioners' leader admitted that on a previous occasion or on several previous occasions, in the same general area, in the same community, they had sat and had been served in restaurants.

This is certainly very damaging admission on the part of the chief witness for the defendant, the petitioner says in this case if they had been served in other restaurants in the community.

Certainly, this negates any community custom of segregation.

There's no other evidence to the contrary either.

The owner in this case would not be penalized in anyway because he admitted Negroes.

There would be no state action that could be taken to forcing to admit Negroes.

He had no contract with any other restaurant owners.

He -- the -- there was no state law, there was no state policy, there was no state action on any -- in any respect that could compel the restaurant owner here to segregate his facility.

On the question of licensing, in Maryland, there's no difference between the licensing of a club in which persons are excluded and a restaurant except where the facility, no matter what it maybe, is operated without profit to the operators.

And this is the only distinction made in the licensing statute which is Section 8 (a) of Article 56 of the Maryland Code.

The health statute which involves the regulation by the State on the grounds of sanitation etcetera, applies to all facilities whether they'd be country clubs, private eating clubs, whatever they may be.

Unknown Speaker: (Inaudible)

Mr. Attorney General: Yes, in that case there was a -- a rat infestation in the home and the -- this Court ruled that where there was evidence outside the home that there was such a rat infestation but a health inspector could enter the house.

Now, the Maryland statute certainly isn't directed at sit-in demonstrations or segregated facilities or neither this sort of thing.

And as a matter of fact, there was a prior case in Maryland Court of Appeals in which the statute was tried to be applied.

It was -- it was overruled by the Court but in Krause versus Maryland, the Court stated that the statute at the least would've been applicable if notice had been given in a case where there's a repossession of an automobile in a man's property.

The only question involved there was that whether there was a notice given and the Court there found there was no such notice.

The owner wasn't there at the time and that the people went on the property and the only forewarning they had was that he had leaned on the car.

The -- all trespassers, regardless of their race, color, sex, color of hair or what -- whatever manner that they -- or whatever characteristics they have that the owner of private property in Maryland that wishes to call into play to forbid their entry are equally guilty under the Maryland trespass statute.

If a woman wants to go into a stag bar and the owner doesn't wish to let her enter, I don't think that she could call upon the Fourteenth Amendment in this situation.

The Fourteenth Amendment says nothing about race or color.

It merely says a State shall not deny equal protection.

In fact this Court, in Brown versus Board of Education said that after an exhaustive study of the debates in Congress and other materials available at the time the Fourteenth Amendment was passed, the time the civil rights bills were enacted that this Court could not determine with any certainty what the Fourteenth Amendment was aiming at.

That was stated in the -- a unanimous opinion of this Court in Brown versus Board of Education.So I think that the remarks of Mr. Justice Goldberg in this regard that the Fourteenth Amendment and the Thirteenth Amendment must be read together is not quite the meaning which was given to the Fourteenth Amendment by this Court on that occasion nor --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: No, they -- they certainly had something to do with Negro rights but that is not the only thing that they had to do -- deal with.

Justice Arthur J. Goldberg: This is the argument involved in (Inaudible)

Mr. Attorney General: I'm not saying that they are not applicable and in fact, it's -- it's perfectly clear that they're applicable to the Negro situation that the example that was cited by Mr. Justice Goldberg, I believe was the civil rights cases and I think that the discussion there as in the slaughterhouse cases was on the privileges and immunities.

Justice Arthur J. Goldberg: (Inaudible) It's not "restrictuity".

Mr. Attorney General: The Fifteenth Amendment, again in your theory in Smith versus Allwright, does state that the -- the right to vote shall not be denied on the grounds of race or color and that's clearly such case.

The Fourteenth Amendment includes a -- a whole bundle of rights.

This Court has used it to enforce the rights of the First Amendment -- Fifth Amendment and other Amendments of the Constitution.

It's not simply a protection due to the expression that's been used in some of the cases, the badge of slavery.

The Amendment just hasn't been determined to be that in all the cases.

Now, it can hardly be said here than that the State compelled or coerced or mandated or commanded the discrimination.

If the court to -- the State here had no connection whatsoever with the decision of this owner to segregate his particular restaurant nor were rights that are constitutionally protected denied to the petitioners.

Now, in the civil rights cases, it was made clear that there must be an abrogation or denial of rights for which the State alone could be held responsible.

This was a fundamental wrong that was intended to be a remedy.

The distinction that can be applied to Shelley versus Kraemer here, I think, should be looked down in the light of some other situations.

For instance, where there is a -- a will in which there is a testamentary clause which prohibits the -- a share of the State can go to one of my sons who marries out of the Hebrew faith, such was the case in Gordon versus Gordon which came up to this Court after Massachusetts had stated that such a discriminatory clause in the will which was given effect by the courts of the Massachusetts was perfectly valid.

This Court denied certiorari in that case and another situation, the Girard Trustees case which came up to this Court from the courts of Pennsylvania.

In that case, it was held that there was no prohibited state action when the provisions and the testamentary instrument, there, the will of Girard, set up a trust to be exercised in the first instance when the case came up before this Court by the City of Philadelphia.

Thrown out on those grounds kept -- court in Pennsylvania then appointed individual trustees which continued the discriminatory policy of this Girard College which was set up under the trust.

When the case again came before this Court on certiorari, the Court denied certiorari.

Now, it's hard to -- to look at those cases or it's hard to justify the results in those cases with the result sought by the petitioners here on the grounds of state action.

Another case is the Black versus Cutter Lab in which there was a discriminatory provision in a collective bargaining agreement which actually was decided in this Court not to be a grounds of state action.

There are other examples that perhaps could be raised.

Now, several cases have been mentioned to this Court as -- today, which I think deserve a little comment, and one is Marsh versus Alabama that -- and comparing that with Terry, for instance, to find that some positive action on the part of the stage called for.

First, it should be born in mind that these cases involve rights that were reserved by other Amendments of Constitution.

In the Terry case, it was the Fifteenth Amendment which certainly has a -- a definite connection with the racial issue to the words of Amendment itself and perhaps calls for a stronger state action.

The other involves the First Amendment.

And here, we don't have any such thing that here, the -- the parties that came on to the property and -- were refused service didn't have any rights to be there.

Now, the mere denial of the rights by the failure to give them redress, certainly, shouldn't amount to state action.

I don't think the court has ever gone that far.

Chief Justice Earl Warren: Did they have a right to go in the café and so they were told (Inaudible)

Mr. Attorney General: Well, that's a question -- yes, I believe that's so.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: They were inside the -- they were inside the door.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: At the steps where the hostess was located.

Chief Justice Earl Warren: What did say (Inaudible) that was in the record.

Mr. Attorney General: What did who say?

Chief Justice Earl Warren: What do they know about (Inaudible) at that time?

Mr. Attorney General: They were told weren't segregate -- weren't integrated yet.

Chief Justice Earl Warren: They weren't integrated (Inaudible)

Mr. Attorney General: And they were refused --

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: They were refused to be seated at that time.

Chief Justice Earl Warren: I beg your pardon.

Mr. Attorney General: They're -- they were not permitted to be seated.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: But the question is --

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: No, but they disregarded what the hostess said and they crossed over to where the seats were.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: They all came in the same door.

Chief Justice Earl Warren: They didn't but they weren't all there.

(Inaudible)

Mr. Attorney General: I think according to the record, they were cross testimony --

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: Your -- Your Honor, probably, you're speaking of the testimony of the owner about a previous incident in the restaurant where some of the people went into the bar.

In this case, they all came in the same door into the lobby.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: No, sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: They all came in the same door and they congregated in the -- in the lobby.

After the refusal to let them be seated, part of them pushed by the hostess and reseated in the dining room at various tables and the others went down the steps to a grill which is in the basement but they had been warned prior to doing this.

And this is evident from the -- their own leaders' testimony, pages 42 and 43.

Chief Justice Earl Warren: Who had warned them?

Mr. Attorney General: The -- both the hostess and the manager had warned them.

Chief Justice Earl Warren: By saying, "You have to leave the premises"?

Mr. Attorney General: Yes, sir.

Chief Justice Earl Warren: That means that they were prohibited from being on the (Inaudible)

Mr. Attorney General: I think it was understood to me in that, yes sir.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: Yes, sir.

Chief Justice Earl Warren: So that's what I'm trying to (Inaudible)

Mr. Attorney General: That's right.

Chief Justice Earl Warren: (Inaudible)

Mr. Attorney General: That's right.

And one of the -- one of the petitioners, if -- if I remember correctly in the record, says that they were refused seats.

And another point, he says that they knew that they're going to be arrested.

This is part of their technique of demonstrating in this restaurant.

It could be said that they had actual intent to be arrested in this case as part of their technique for -- for the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: I believe in this case, it would your crossing over, it could be entry too, either one.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: No, they weren't.

There was another --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: Oh, very definitely.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: Simply because -- there's another Maryland statute, Section 576, I believe it is, which says there were signs are posted and there is entry.

Then that's the crime.

Now, it would be --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: There were no signs, no, sir.

But whether the -- the actual crime took place at the street or at the -- inside the lobby doesn't particularly matter here as long as the facts show that there was a crime committed, and merely moving out to the street doesn't help I think.

On the question of vagueness, certainly, this Court's decision in Alford versus United States is far more difficult to understand than what the Maryland Court of Appeals did in this case.

Now, the Maryland Court of Appeals found that there was a crime committed if a statute was violated whereas in -- in Alford and this is the first instance that anyone had come up under this situation, in Alford, there was a statute which prevented the construction or the building of a fire near a forest in the public domain, that's all the statute said and the man was convicted for building a fires -- a fire near the forest.

Now, he was the first one to come before this Court or any court in which the -- an appellate court anyway, determined what that statute meant.

And the Court upheld the conviction.

Now, certainly Maryland statute is not only clear, words are easy to understand but there was without a doubt a -- a warning not to enter the particular parts of the restaurant where the petitioners went after which they entered and crossed over of those portions.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: I'm not aware of that case, Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: I think that perhaps in that case, you have a -- a little bit different construction of -- of the wording.

Isn't that a case where there -- there was a -- an agency which determined what the words were.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: I see.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Attorney General: I appreciate your suggestion.

Well, in -- in summary, I would say that if the basis of constitutionality of such conviction is neutrality part of the States which, under the decisions of this Court for the past hundred years, appears to be the standard, then the State of Maryland cannot be held responsible for this conviction.

If anything this -- the officers of the State here discouraged the owner from bringing the case even in the court, they required him to go down the police station which in a number of cases, I wouldn't even do.

There was no evidence at all that the police said any forewarning of the -- the incident that took place or there was any state encouragement of the -- the segregation policies of the restaurant.

They had no ownership rights in the building or the -- or the -- of the restaurant itself.

There was no one in this -- in the state employee that was working there.

All the mitigating factors that -- that seem to valid this Court in -- in rendering its decisions in this field are absent in this case.

And it doesn't seem to be an easy way to -- to reach a decision one way or the other on the primary constitutional issue raised.

Therefore, the State of Maryland respectfully submits that the judgment below should be affirmed.

Featured:

Barr v. City Of Columbia - Oral Argument, Part 1

Wed, 16 Jan 2013 22:49:15 +0000

Case:

Barr v. City Of Columbia

Media File:

9_19631014-argument-1

Related Transcript:

9_19631014-argument-1

Transcript:

Argument of Matthew J. Perry

Chief Justice Earl Warren: Number 9, Charles F. Barr et al., Petitioners, versus City of Columbia.

Mr. Perry, you may proceed with your argument.

Mr. Matthew J. Perry: Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the Supreme Court of the State of South Carolina.

The case arose in March, 1960 at which time the sit-in movement or the movement which brings these cases before the Court at this time, was perhaps at its highest stage.

One day before this case arose, some of the petitioners in this case went to the Office of the City Manager of the City of Columbia to discuss matters pertaining to the efforts of Negroes to use lunch counter facilities in the City of Columbia and at that conference, the record shows that the City Manager of the City of Columbia advised some of these petitioners, gentlemen, further demonstrations will not be tolerated.

At that particular time, the -- most of the stores, drugstores and other stores which had lunch counters in the City of Columbia followed the policy of excluding Negroes or of segregating them therein.

A few days before March 15, 1960, police officers working for the City of Columbia and other officers of the South Carolina Law Enforcement Division working in cooperation with the City Police of the City of Columbia, learned that Negroes would make an effort to gain food service at the Taylor Street Pharmacy located in the City of Columbia.

Agent Carl Stokes of the South Carolina Law Enforcement Division testified that he and other officers advised the management of Taylor Street Pharmacy that Negroes were coming.

They had some meeting among themselves and worked out a plan whereby the action which was thereafter taken was formulated.

This plan was that among other things, that officers would be placed in the premises of the Taylor Street Pharmacy.

On March 15, 1960, Agent Carl Stokes of the South Carolina Law Enforcement Division and the Deputy Sheriff were on duty in the Taylor Street Pharmacy premises.

They've been waiting there throughout the morning, up until the time the five petitioners here appeared.

When the petitioners entered the store, they walked in quietly and some of them stopped near the front of the store to purchase some cards.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: Well, they might have known it, Mr. Justice Goldberg.

The -- the Solicitor General's argument on the vagueness of the statute here might still have merit because of course, the statute did not give these petitioners any warning.

They -- they may have known but the statute didn't.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: They were told this officially by the City Manager of the City of Columbia.

However, petitioner, David Carter testified at the trial that he did not know he would not be served and that in fact he went there to be served.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: I would say that he was expressing some optimism, sir.

[Laughter]

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: After some of the petitioners stopped to buy postcards or other cards, they then started walking to the rear of the store.

Now here, perhaps I should state the lay-out of the store.

The Taylor Street Pharmacy is a very large drugstore in the City of Columbia.

In fact, it is described by its manager as a department store.

It also has a restaurant which is located near the rear or at the rear of the store premises.

The petitioners started walking back there and Agent Carl Stokes together with the Deputy Sheriff followed them in close pursuit because this was the kind of thing that Agent Stokes and the Deputy Sheriff were waiting for and as the petitioners went into the restaurant area, some of them -- all of them took seats at different points.

The manager of the store came into the lunchroom area and stationed himself at a point where he felt his voice could be heard by all and stated that the Negroes would not be served and that they would have to leave.

At this time, Agent Stokes was standing right by the manager there in close proximity to him and after the -- the store manager had made his statement and petitioners did not move, Agent Stokes leaned over and said to the manager, "Now, you go over and tell each one of them in person or -- or directly to leave in my presence."

Acting in response to the request of the -- the police officer, Mr. Terry, the manager went over to each of the petitioners, all except one of them and told them that they would have to leave, with that is with Agent Stokes still following in close pursuit.

Chief Justice Earl Warren: Agent Stokes was a policeman?

Mr. Matthew J. Perry: Yes, sir.

Agent Stokes was an officer of the South Carolina Law Enforcement Division.

After --

Justice Potter Stewart: That's a lot -- does that mean the state police?

That's a long way, right?

Mr. Matthew J. Perry: That is correct, sir.

The South Carolina Law Enforcement Division is the official police force of the State of South Carolina.

Justice William J. Brennan: We ran into that I think in Edward (Voice Overlap) --

Mr. Matthew J. Perry: That is correct in Edward versus South Carolina.

After the manager had directed the Negroes to leave, he then left the area of the lunch counter or the restaurant.

One of the petitioners sought to have some words with him on the way out but the manager said, "I have nothing further to say" and kept leaving the place.

At this point then, Agent Stokes and the Deputy Sheriff took over completely with petitioners still occupying their seats in the same manner which had characterized their conduct before the manager left.

And at that -- at this point, Mr. Stokes, the -- the SLED Agent stated to the petitioners, "Now, I am a State Officer and I am saying to you, you will have to leave."

Justice Potter Stewart: At this point, assuming – assuming, putting aside your -- your constitutional argument, at this point an offense had been committed, had it not?

Mr. Matthew J. Perry: I --

Justice Potter Stewart: Putting aside the -- the vagueness arguments and your constitutional argument, but at this point, it was appropriate that -- it's what I'm suggesting that the law enforcement officers take -- takeover because an offense had been committed under the state law.

Mr. Matthew J. Perry: Well, in our view, the -- no offense at that time had been committed because the petitioners had done nothing --

Justice Potter Stewart: Except stay there after they've been told to leave.

Mr. Matthew J. Perry: That is correct and the only reason for the request which was made to them to leave was because they're Negroes.

Justice Potter Stewart: Well, as I say, I -- I'm putting to one side, the constitutional argument as a matter of state law, an offense had been then committed after they've stayed there, after been -- being told to leave, had it not?

Mr. Matthew J. Perry: An offense which has been -- has been defined by South Carolina to constitute an offense.

Justice Potter Stewart: Exactly.

Mr. Matthew J. Perry: Yes, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: That is correct, Mr. Justice Goldberg.

We did, however, contend that the petitioners were -- were pursuing their constitutional right of freedom of speech and expression.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: Yes, sir.

Justice Arthur J. Goldberg: But on the vagueness point (Inaudible)

Mr. Matthew J. Perry: That is correct.

Justice William J. Brennan: It was not raised.

Mr. Matthew J. Perry: It was not specifically raised that the -- at the trial except to the extent that it might have been raised in the -- the contention that petitioners were exercising right of freedom of speech.

Justice William J. Brennan: Well, wasn't it argued (Inaudible)

Mr. Matthew J. Perry: Not specifically.

When -- when Agent Stokes said to the petitioners, "Alright, now, I'm a police officer and you will have to leave," petitioners kept their seats.

He there upon placed them under arrest and told them to follow me at which time all of the petitioners followed Agent Stokes out of the store and got into his police car.

Now, these petitioners were thereupon charged in warrants issued by the City of Columbia with trespass under Section 16-386 of the South Carolina Code of Laws for 1952 at that time, and I might say parenthetically that since that time, South Carolina has re-codified under that 1962 Code and the 19 -– the Section to which we refer as Section 16-386 under the 1952 Code is now codified by the same numerical number in the 1962 Code.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: There is no change made.

It's copied verbatim.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Matthew J. Perry: That is correct, however, shortly after these cases reached the Court in March 1960, South Carolina enacted a new statute which was before this Court last year in Peterson versus City of Greenville, now codified as Section 16-388.

Petitioners were also charged with breach of peace under a statute which is set-off in the record of these proceedings as Section 16-509.

Justice John M. Harlan: Where do you find that statute?

Mr. Matthew J. Perry: It's set forth in petitioners' brief at page 3.

I beg you pardon.

I have misstated the numerical Section, Section 15-909.

This is the first time that particular statute had been invoked.

The Court will recall that we were here in Edwards versus South Carolina, at which time the Court convicted petitioners of the common law offense of breach of peace, but throughout these proceedings, the -- the convictions of petitioners here have been referred to as violations of the particular section to which we refer.

Petitioners were tried in the Municipal Court of the City of Columbia known as the Recorder's Court and were found guilty of the crimes of trespass and the breach of peace.

The Richland County Court affirmed as did the South Carolina Supreme Court later rejecting petitioners' claims that their constitutional rights have been violated and rejecting further petitioners' claim that the evidence presented against them did not support the charge made on the ground that the exceptions which petitioners made were said to have been too general.

However, this was the first time in these series of cases that the Court had invoked such a rule and in fact in other cases decided about the same time ruled upon exceptions, identical to those which were framed in this case.

Justice Potter Stewart: The convictions under both statues were affirmed (Inaudible) both --

Mr. Matthew J. Perry: Yes, sir.

Justice Potter Stewart: (Voice Overlap)

Mr. Matthew J. Perry: That's right.

Justice Potter Stewart: And breach of peace?

Mr. Matthew J. Perry: And breach of peace.

Justice Potter Stewart: Disorderly conduct?

Mr. Matthew J. Perry: That is correct.

The statue is entitled disorderly conduct --

Justice Potter Stewart: Disorderly conduct.

Mr. Matthew J. Perry: -- but it includes a multitude of offenses --

Justice Potter Stewart: I see it, yeah.

Mr. Matthew J. Perry: -- including breach of peace.

Justice Potter Stewart: And all of these petitioners were convicted under both.

Mr. Matthew J. Perry: That is correct.

Justice Potter Stewart: And convictions under both were affirmed (Voice Overlap) --

Mr. Matthew J. Perry: Were affirmed, yes sir.

Justice Potter Stewart: And were concurrent or consecutive sentences imposed or (Voice Overlap)

Mr. Matthew J. Perry: Consecutive sentences were --- were imposed in these cases with $24.50 of each sentence being suspended.

We do not know what brought about the particular formula the Court used except that it represented some arbitrary concept on the part of the Court.

This case then involves, we think a very clear cut illustration of the use of state power to enforce racial segregation.

The police in this case came into the matter before petitioners ever went upon the premises of Taylor Street Pharmacy.

They warned the manager in fact that Negroes were coming.

Justice Potter Stewart: Played so the rule (Inaudible) the redcoats are coming or --?

Mr. Matthew J. Perry: Yes, sir.

Justice Potter Stewart: That's all -- that's all the record shows just -- just that Negroes are coming.

Mr. Matthew J. Perry: That is correct and they also counseled to the manager in the method in which the criminal offense was to be charged and the evidence secured in order -- in order to later go to court and prosecute because --

Justice Potter Stewart: I missed that.

I'm sorry.

Mr. Matthew J. Perry: Alright sir.

Agent Carl Stokes testified that he stood next to the manager and after the manger told the petitioners, "I -- I will not serve you, you will have to leave," the agent carrying the full colloquy of South Carolina power stood next to the manager and said to him, "Now, you go and tell each one of these petitioners, each one of these -- these persons, he will have to leave in my presence."

Justice Potter Stewart: Stokes was this so-called SLED man?

Mr. Matthew J. Perry: That is correct and the Deputy Sheriff also was on the premises and standing close by.

Justice Potter Stewart: Did he say anything, did say anything?

Mr. Matthew J. Perry: The record does not show that the Deputy Sheriff said anything.

I believe that -- that respect and deference was given to the agent from the official police force in the State of South Carolina.

I think Agent Stokes outranked the Deputy Sheriff and the record indicates that he did most of the active cooperation with the management in this case.

The record also showed that he counseled with him before the Negroes came, while the Negroes were upon premises and then in fact arrested the petitioners without having been requested to do so by the manager.

Justice Potter Stewart: Well, how significant is (Inaudible)

Mr. Matthew J. Perry: Well, I think that it is significant for the purpose of illustrating to this Court, the extent to which the -- the power of the State was -- was used as a matter of state law, but the thing what happened here --

Justice Potter Stewart: Remembering my Brother Goldberg's question in the previous case, right, as to whether or not if the duty of the police officer to arrest somebody simply because he's requested to do so and the answer is obviously no in any State but certainly the other side of the coin is that -- that it is a duty of the police officer to arrest somebody if a misdemeanor is committed in his presence regardless of whether or not he's requested to do so, isn't that true?

Mr. Matthew J. Perry: Well, that may be true sir.

I submit to the Court that where, as here, the -- the State had no statute specifically prohibiting this conduct, the City of Columbia had no ordinance specifically prohibiting it as well as the case in Peterson versus Greenville, the state officer requested and demanded that petitioners leave.

There -- he thereby, made up a crime for them to they have to remain and when they refuse to immediately leave, the power of the state further went into operation by carrying forth an arrest which was not requested by the manager and we submit that this is important for the purpose of illustrating the extent of the -- the full power abused by the police.

Justice John M. Harlan: But what you're saying in effect is that this record shows that the State was there not to enforce property rights but to enforce segregation.

That's --

Mr. Matthew J. Perry: Precisely.

Justice John M. Harlan: -- what you're really saying?

Mr. Matthew J. Perry: That is precisely our opposition sir.

Justice John M. Harlan: Now, implicit at least in these -- these records and these cases come up in various skimpy ways, implicit in this – wouldn't you think it was fair to say that the state court at least, rightly or wrongly found to the contrary.

In other words, it recognized that the state could not do what you're claiming, it did.

Mr. Matthew J. Perry: The state court recognized the right on the part of management --

Justice John M. Harlan: To exclude.

Mr. Matthew J. Perry: -- to exclude --

Justice John M. Harlan: Right.

Mr. Matthew J. Perry: -- Negroes and thereby declared a state law of policy which we feel violates petitioners' rights to both equal protection and due process.

Justice John M. Harlan: Or, little off at least I was trying to say, you're -- you're making a specific statement that because of the advance notice of this, of the police of Stokes who was -- the Stokes that Negroes are coming to the restaurant and his action on the premises in arresting without -- without requesting the owner and other things you've said all add up to something that indicates that state was really enforcing segregation here rather than enforcing the trespass law.

Mr. Matthew J. Perry: Yes sir, precisely, precisely.

Justice John M. Harlan: My question here --

Mr. Matthew J. Perry: And I think that when we examine that against the -- the background of statutes in South Carolina which specifically require racial segregation and the custom which these statutes seemed to have generated.

Justice John M. Harlan: Yes, but you're getting off again and my Brother said because I'm -- I'm dealing with a particular thing because as far as I'm concern, if you can demonstrate what you show, you're entitled to a (Inaudible) of this case because I can't see in the record yet, that's what I'm --

Mr. Matthew J. Perry: Well sir, I think that that it's in the record right from the beginning of the first warning that Agent Stokes and other officers conveyed to the manager that Negroes were coming.

I think it's also apparent in the record when Agent Stokes and the Deputy Sheriff went on duty on the store premises.

I think it is also apparent that when petitioners were entering the restaurant, Agent Stokes and the Deputy Sheriff followed them in close pursuit, this being their primary purpose on the premises.

I think it is --

Justice Arthur J. Goldberg: (Inaudible) they have a duty in the record clearly that they have (Inaudible) between the police and the restaurant owner of what can be done.

They have a duty (Inaudible) that in order for us to execute the policy of (Inaudible) this testimony that Mr. Stokes who had advised this in the owner, the manager (Inaudible).

Mr. Matthew J. Perry: I think Mr. Justice Goldberg if you will go back to the first one or the two statements are made which appears in the testimony of petitioner, David Carter.

Prior to the entry and to the Taylor Street Drugstore premises, these young men had been and to see the City Manager and he had said to them, "Gentlemen, further demonstrations will not be tolerated."

I believe we have to begin there to see exactly where the -- the statement on the part of the police of the City of Columbia came from and where the full power of the government of South Carolina came from.

Chief Justice Earl Warren: We'll recess now Mr. --

Featured:

Barr v. City Of Columbia - Oral Argument, Part 2

Wed, 16 Jan 2013 22:49:15 +0000

Case:

Barr v. City Of Columbia

Media File:

9_19631014-argument-2

Related Transcript:

9_19631014-argument-2

Transcript:

Argument of David W. Robinson Ii

Mr. David W. Robinson Ii: May it please the Court.

We have an agreement with counsel that petitioners will argue in Number 10 and then we will reply in both 9 and 10 if that meets with the Court's approval.

Argument of Constance Baker Motley

Ms Constance Baker Motley: Mr. Chief Justice, and may it please the Court.

Before this Court for review upon the granting of a writ of certiorari is the judgment of the Supreme Court of South Carolina affirming the convictions of petitioners for trespass.

That law, Section 16-386, by its terms makes it a misdemeanor to enter upon the lands of another after notice from the owner or tenant prohibiting such entry.

The Negro petitioners in this case are Columbia, South Carolina college students, who were arrested on March 16th, 1960 when they went into Eckerds Drug Store, a large multi-department chain store, the only department of which -- which is restricted to whites is the lunch counter.

The petitioner seated themselves in a booth in the lunch counter and the owner asked them to leave and the police officer asked them to leave and after a few minutes hesitation, one got up, the other was attempting to get up and he was pulled up by the police officer, and they were arrested.

Petitioners were tried in the Recorder's Court in the City of Columbia without a jury on March 25th, 1960.

They were convicted of trespass and sentenced to pay a fine of $100, $24.50 of which was suspended or 30 days in jail.

Their convictions were affirmed by the Richmond County Court Criminal Division and by the Supreme Court of South Carolina.

Throughout the state court proceedings, petitioners claimed that their arrest and convictions violated rights secured to them by the Due Process and Equal Protection Clauses for the Fourteenth Amendment to the Federal Constitution.

Petitioners urged that their convictions amounted to state enforcement of private racial segregation to the use of the state's judicial machinery to enforce such discrimination in a public place where -- where petitioners have been invited to trade and where they had the right to be and that this action singled them out for different treatment by the state solely because of their race and color.

These contentions were summarily overruled by the Supreme Court of South Carolina on the ground that similar contentions have been rejected by it in a similar case, City of Greenville against Peterson, which was reversed here last term on other ground.

Upon this review, petitioners contend first that their rights have been violated because here, the state's criminal law enforcement and judicial machinery were employed to sanction and enforce private racial discrimination in a place open to the public.

Every member of the public could go into this place and every white member of the public could sit at the lunch counter.

Secondly, petitioners claim that their rights have been violated because the state is involved in this act of racial discrimination, because it's an act performed by the manager of Eckerds Drug Store in obedience to a community wide custom of racial segregation in public-eating places, which custom in turn is dictated in part by a state law and massively supported and encouraged by a network of corresponding state laws clearly defining that state's long pursued policy of enforcing racial segregation.

Not only in the public life of the state, but in private affairs as well.

Thirdly, petitioners claim that their rights have been violated because, contrary to the command of the Fourteenth Amendment that no state shall deny equal protection of the laws, South Carolina has denied the same by a regime of laws, which fails to furnish such protection to petitioners by subordinating petitioner's claim to equality in the public facilities of the community to a narrow and technical property claim, which is no more than an assertion of their right to deny equal treatment to Negroes in one department of a store open to any member of the white public.

Now, the gravamen of this case was put before the arresting officer in a single question, which appears on page 17 of the record.

The arresting officer was the Assistant Chief of Police and he was asked this, "Chief, isn't it a fact that the only reason you are called in from the police department to arrest these two persons was because they were Negroes who are asking for service in the food department of Eckerds store.

And the manager was directing them out because they were Negroes, isn't that correct?"

And the chief answered, "Why, certainly," I would think that would be the case.

Consequently, there is no question in this case that the policy of Eckerds Drug Store was to permit Negroes to trade in all of the numerous departments of the store except the lunch counter.

At one point, the manager of the drug store testified that he did not refuse to serve petitioners because they were Negroes, that's on page 26, but when he realized that he's previously admitted, an obvious policy would not permit him on the cross examination to evade the crucial issue as to why service was denied, he asserted all stores do the same thing.

It is also clear that the manager's refusal to serve therefore was influenced by community custom, which we claim amounts to unconstitutional state action because dictated in part by state law and supported by a massive state segregation policy.

Constitutionally relevant here, is the fact that this community-wide custom of not serving Negro and white persons together in public-eating places in South Carolina is expressly dictated in part by a state law.

At the turn of the century when public-eating places were largely the concern of people traveling, South Carolina made it a crime to furnish meals to white and colored persons in the same room, at the same table or at the same counter in station restaurants or station eating houses, in times limited by common carriers of such passengers.

And then, in Peterson versus City of Louisville, the case which was here the last term, there was a South Carolina city ordinance in Greenville, which expressly required segregation in restaurants.

In addition --

Justice Potter Stewart: There is no -- there is no contention is there or is there Ms. Motley that -- that that any statute or ordinance directly bore on this situation here?

Ms Constance Baker Motley: No, sir.

Not this statute which I just referred to -- referred to station restaurants and railroad stations.

Justice Potter Stewart: And you said --

Ms Constance Baker Motley: It did not say a lunch counter in a drug store.

Justice Potter Stewart: And that was the term of the century that's (Voice Overlap) --

Ms Constance Baker Motley: That's right.

Well, I'm saying is that this is state policy and this, the custom stemmed or was generated by this state policy expressed in this statute and numerous other state statutes making the action of the owner state action because --

Justice Potter Stewart: But was it --

Ms Constance Baker Motley: -- no infused with the state policy.

Justice Potter Stewart: But there was -- there was no -- if I understand it correctly, there was no statute or ordinance, which compelled the -- this restaurant -- this store proprietor to do as he did to discriminate.

Ms Constance Baker Motley: That's right.

There was no ordinance or a state statute.

Justice Potter Stewart: Or -- or -- and none which made it an offense for -- for people to eat together, is that right?

Ms Constance Baker Motley: That's right, that's right and then as I've said, this custom which was dictated in part by state law and that it expressed the state's policy with respect to public eating in a certain area was again massively supported and has been for almost a century by South Carolina statutes, which created the segregated society presently existing in that state because the state not only decreed segregation in the public life, and facilities owned and operated by the state but in a facilities owned and operated by private individuals as well.

And as we point out in our brief, during reconstruction, there is historical evidence that Negroes were able to eat in public-eating places in Columbia, South Carolina, the same city involved here and as way as 1895 and 1898, there was opposition in South Carolina to the enactment of racist legislation.

However, it is obvious that the pro-segregation forces prevailed and after a brief, desegregated reconstruction era, the policy of South Carolina changed and became that of segregation of the races as we've said as evidenced by these numerous laws, which requires segregation in such places, in circuses, in traveling shows, steamed ferries, carrier stations, restaurants, textile factory.

In other words, the state extended its policy beyond the public life into private affairs.

Justice William J. Brennan: Well, may I ask Mrs. Motley, your argument in essence is that just as the store owner in Peterson would not be heard to say that he made a private choice, invited the existence of an ordinance expressly requiring segregated eating facility?

Here, the store owner ought not be heard to say he made a private choice against the background (Inaudible) to segregation law?

Ms Constance Baker Motley: That's -- that's right.

Also --

Chief Justice Earl Warren: (Inaudible)

Ms Constance Baker Motley: I didn't get the --

Chief Justice Earl Warren: (Inaudible)

Ms Constance Baker Motley: Oh, yes.

All of these that we've collected on page 28 of our brief I think footnote -- it's page 30 Footnote 11.

We've collected all of the current laws in South Carolina bearing on segregation.

Those require --

Unknown Speaker: (Inaudible)?

Ms Constance Baker Motley: Pardon me?

Unknown Speaker: (Inaudible)

Ms Constance Baker Motley: Yes, sir.

We filed a joint brief in 9, 10 and 12.

Justice William J. Brennan: Would this argument apply in 9 and 12 as well as in 10?

Ms Constance Baker Motley: It applies in -- yes, in 9 and 10, and 12.

Justice William J. Brennan: Now, this may not be the appropriate place to ask it, while I think of it Mrs. Motley, are you also arguing the point that this South Carolina trespass statute does not give fair warning?

Ms Constance Baker Motley: Yes.

We have argued that in our brief and --

Justice William J. Brennan: Did you raise it in the -- I think vagueness (Voice Overlap)

Ms Constance Baker Motley: No, the vagueness was not raised as such in the South Carolina Court.

However, throughout the proceeding, due process was raised and when the case got to the Supreme Court and a petition where -- for rehearing was expressly pointed out that free speech was involved and one of these petitioners Bouie had been convicted of resisting arrest and one of the assignments of error or two of the assignments of error were failure of the state to prove a prima facie case and the failure of the state to prove the corpus delicti which I understand in South Carolina, means the state proved no crime and that was raised and passed on by the Supreme Court of South Carolina and they reversed Bouie's conviction for resisting arrest on the ground that there was no evidence to show that.

So they did pass on the sufficiency of the evidence and so, if here we're saying that there was no evidence to convict the petitioners of the crime defined by the statute.

Justice William J. Brennan: And you think that would embrace the fair warning point?

Ms Constance Baker Motley: Yes, that's right.

Now, also relevant here is I've just mentioned is the fact that there has been no perceptible voluntary change in the state's policy.

The South Carolina announced for example, just in August that it would close its state parks rather than desegregate them as required by a federal court.

In other words, South Carolina is still pursuing and pushing a public policy of segregation and this public policy permeates every aspect of life in South Carolina either by direct legislative file as we've pointed out or by public custom of the nature described here.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Yes.

In this case, I believe that after this case, Negroes were able to eat in this particular drug store.

Some Negroes have been admitted to the state colleges, Clemson College by a court order, however, the University of South Carolina by court order and Negro students were admitted to elementary schools in Charleston, South Carolina in September pursuant to court order.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Yes.

I -- I think that the effect of the state's previous policy would still be there but --

Justice Arthur J. Goldberg: (Inaudible)?

Ms Constance Baker Motley: Well, I think the state would have to certainly at least provide a remedy against such discrimination and the state in every case, thereafter, would have the burden of proving that there was no state power still infecting the private action here and if the state could prove that, then the state exonerates itself.

But I think --

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Well, I -- I would think that they would have to do that before they could start claiming that they were no longer involved here and -- because otherwise, we claim that in everyone of these cases, they would have a heavy burden of proving that this man acted without any relation prior to state's policy in discriminating against a Negro who went into the drug store.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Well, you see the northern states of all past statutes giving us a remedy against such discrimination, and certainly, in that situation, you go in the state court enforce that state law so the state --

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Pardon me.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Well, we will cite 30 statutes, state statutes provi -- prohibiting discrimination and public accommodations.

Now, they don't cover every single public accommodation but there, the state would not have the same heavy burden that South Carolina has of showing that the state's policy is not operating here.

And we say that in all these cases, a state could not be heard to say that its massive policy of segregation had no effect, whatsoever and that it never intended to enforce segregation in this kind of situation.

Justice William J. Brennan: But you go beyond that as I understood your answer to me Mrs. Motley.

Your -- your answer is that no one will be heard to say that the choice was a private choice as long as there exists in this kind of massive body of legislation requirement segregation, wasn't that it?

Ms Constance Baker Motley: Yes, that's right.

Justice William J. Brennan: That was the -- state will be heard to say but rather the private individual will not be heard to say that when he asked Negroes to leave, this was a private choice that he --

Ms Constance Baker Motley: That's right.

That's right.

Justice Hugo L. Black: Do I understand -- maybe I could understand that the Negroes also (Inaudible)

Ms Constance Baker Motley: Well, if in South Carolina, the moral they should repeal all state laws on segregation and the owners just reminisce against us the next day.

We say the state still has the burden of showing that his action was without any reference whatsoever to the state's previous policy or this custom which we claim as was generated and supported by state law.

And we think that the day after the state passed -- repeals all its laws and South Carolina would certainly be too soon for us to say there is no state involvement at all here because the magic of repealing those statutes has wiped out all of the influence which the state policy previously had.

Justice Hugo L. Black: (Inaudible)

Ms Constance Baker Motley: Well, no.

Justice Hugo L. Black: Because the rule, what I have in mind is, is that the rule of law (Inaudible)

Ms Constance Baker Motley: Well -- what were -- would --

Justice Hugo L. Black: What would be the effect here?

They were completely (Inaudible)

Ms Constance Baker Motley: No, no.

You don't have to decide that in this case.

No.

Justice Potter Stewart: Adding something very similar to it is, be -- going to be before us in the next case, Bell against Maryland, isn't it?

Ms Constance Baker Motley: Well, yes.

In Maryland, the state has passed a statute.

The Bell, we say, it's again, too soon for the state to say it was -- its policy did not influenced the owner because as a matter of fact, the owner said, "That's the only reason I'm segregating.

I would love to have you," but the custom is what's operating here and in Maryland, they've had a similar massive segregation policy.

It's only recently that they began to change that policy and we say -- in that case the burden is still on the state to show that that policy has not influenced the choice of the owner and as a matter of fact, in that case, the owner said, "It does.

It's the only thing that influences my choice."

Justice Potter Stewart: How do you suggest that such proof be adduced?

You're suggesting it seems to me that the courts get pretty deeply into the realm of psychology.

Each of us is motivated by a variety of factors inherited environmental.

Each of us is motivated by customs of those of whom he lives.

These are all fairly, fairly settled.

Psychological considerations calling upon a discipline, which does not deal in its amplitude, is that the kind of evidence you think (Voice Overlap) --

Ms Constance Baker Motley: Well, I think the state would have to begin with its laws to -- to point out that these segregation laws, anything having to do with this particular facility, and then repeal by the state are not enforced by the state and the state has gone further and provided a remedy against such discrimination.

And all of these kinds of things I think the state would have to prove and of course, the state will then have to show that this was -- has been many years of the state had any such laws, that it couldn't possibly have had the effect which we claim.

We only ask that the state be charged with the normal and probable consequences of its act as anyone else is.

Justice Potter Stewart: But after all that -- after all that evidence was in and maybe -- maybe the defense could get a psychologist on the stand to say that everybody is motivated by a desire to be respected by its peer groups and so on and that the peer group was a community still, held this deeply and transitive even in subconscious opinions, would that be enough to answer?

Ms Constance Baker Motley: Well, no.

I don't think just a psychologist coming in and saying (Voice Overlap) --

Justice Potter Stewart: Because that's what you're getting into, isn't it?

Ms Constance Baker Motley: Well, I don't think so.

I think that there is so much evidence in this case, for example, the state's policy that we don't have to get into that.

The state has a heavy burden right now in this case with all of these laws which required segregation and I think that it will be a long time before we get involved in that kind of situation in South Carolina where we would have difficulty in proving or the state would have difficulty in proving no state involvement and no effect to the state's policy in this kind of situation.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Yes --

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: -- certainly.

Slaves didn't have the right to go in anything.

The slaves didn't have any rights, which the white men or the state was bound to respect and then during reconstruction as I've pointed out briefly in South Carolina, they did have some rights and then segregation was established as a matter of state law and state policy, and everything became segregated.

Justice Tom C. Clark: Your Footnote -- your Footnote in page 30 seems to indicate that these statutes refers in 1962, is that the reference to certain procedures?

The traveling shows --

Ms Constance Baker Motley: No, that's the codification thing.

Justice Tom C. Clark: They're old statute?

Ms Constance Baker Motley: Oh, yes.

These are old statutes.

Justice Tom C. Clark: But they're all reenacted or re-codified by state of action?

Ms Constance Baker Motley: Yes.

They were all re-codified in 1962 Code as far as I'm -- yes.

Justice Tom C. Clark: There's no statute that prohibits the eating-places themselves from serving.

Ms Constance Baker Motley: No, sir.

Just the one that I referred to, and that's in the 1962 code which prohibits serving Negroes and whites in a -- in a station restaurant, that's still in the code.

Justice William J. Brennan: Was that first enacted in 1962, Mrs. Motley?

Ms Constance Baker Motley: No, sir.

In 1906 I believe, we checked that and the -- you know, it gives the history of the legislation in the code under the statute and it indicates that it was first enacted in 1906, that particular statute.

Justice Tom C. Clark: Well, it was reenacted to those non-extended, at large?

Ms Constance Baker Motley: No, it wasn't.

Justice Byron R. White: Were there -- how long is the Negroes had been admitted at all to the places like this drug store?

Ms Constance Baker Motley: I think right after the suit and -- in the --

Justice Byron R. White: No, I mean to the drug store to -- not to the lunch counter or anything but just to the drug store proper (Voice Overlap) --

Ms Constance Baker Motley: Well, I suppose since the drug store was open, I'm not certain to that.

I think that in all of these situations, the Negroes have always been permitted to buy at all of the counters except the eating counter.

Justice Byron R. White: And there never was a state policy, the segregation in retail establishment generally?

Ms Constance Baker Motley: Well, what happened as a matter of fact is that the facilities in these department stores are segregated like the rest rooms and if they have a lunch counter, it was some time segregated or Negroes excluded all together, but they could buy at the merchandise counters generally without discrimination.

They might have had to wait until all the white customers were waited on, something like that, but the policy in these department stores and drug stores is to segregate only the eating.

This, again, was a part of the custom not to eat with Negroes and as --

Justice Byron R. White: I take it as no specific evidence in the record of any causal connection between the -- the exclusion and the -- and the state policy or custom?

Ms Constance Baker Motley: Yes.

The owner said, "All stores do the same thing."

When we asked him -- oh, when he was asked, "Did you refuse to serve these petitioners because they were Negroes?"

He first said no, and then he said, "Well, all everybody does the same thing," which to me says, this is a custom that what I'm doing is what everybody does.

Justice Byron R. White: But that's the -- that's the extent of the evidence in that regard.

Ms Constance Baker Motley: Yes and of course the other evidence is what this Court can take judicial notice of and that's all of these statutes of South Carolina.

Justice William J. Brennan: Mrs. Motley, of this desegregation of Eckerds, is that the only one that has been desegregated at the lunch counters there

?I think you've told us that presently that lunch counters desegregated.

Ms Constance Baker Motley: I can ask the state, maybe they know of other stores that have been desegregated.

Ms Constance Baker Motley: They have been.

Justice William J. Brennan: Generally in Columbia?

Ms Constance Baker Motley: Yes, sir. Lunch counters.

Justice Tom C. Clark: Was this since 1960?

Ms Constance Baker Motley: Yes, sir.

They limited the lunch counter, as he says not restaurants per se.

I'd like to save the remaining time for rebuttal.

Chief Justice Earl Warren: Mr. Robinson.

Rebuttal of David W. Robinson Ii

Mr. David W. Robinson Ii: Mr. Chief Justice, may it please the Court.

I'm replying in behalf of the City of Columbia in both Numbers 9 and 10 and would request that you consider all of my remarks addressed to both cases except when I specify otherwise.

I would first like to direct the Court's attention to the problems of vagueness and the convictions on the merits in these cases.

It's our position that these cases are not defective for those reasons, for three reasons.

First that petitioners failed to properly raise and present the question of whether they were guilty of trespass at all before the state Supreme Court.

Secondly, that they had actual notice of the owner's policy before they enter these stores, therefore, were guilty under the statutes and thirdly, that the question of whether a construction of refusal to leave after entry, whether that such a construction would be vague was never presented at all to the state Supreme Court.

Justice Potter Stewart: As – how does your third point differ from the first one?

Mr. David W. Robinson Ii: My first point is that -- is that they didn't properly brief and argued whether they were guilty of anything.

The -- the third point is that they didn't raise a question of the constitutionality of the construction that was rendered by the state court.

In connection with the first point, our state Supreme Court has rules that most appellate courts have regarding the exceptions and questions presented which are designed to focus for the Court what the question involved each.

The questions and the exceptions in these cases simply said that the state failed to prove of a prima facie case and to produce a corpus delicti.

There was no spelling out what the error of the trial court was.

In their briefs, which we have attached as an -- as an appendix to our brief, in the Barr case, the petitioners have fully argued the question of state action, but when it came to the question of a conviction on the merits, they simply said that the argument on the question one, which was a state action argument, would simply take care of question two, which was the question whether they're guilty of anything and our Supreme Court refused to raise the question.

They said that under our rules, they have improperly raised it and wouldn't consider.

Now, in the Bouie case --

Justice Potter Stewart: The matter -- as a matter of South Carolina law, has this statute, I' talking now about 16-386, which begins by saying every entry upon the lands of another where any horse, mule, cow, hog or any other livestock is pastured.

Has that been consistently construed to apply the -- the places like drug stores?

Mr. David W. Robinson Ii: There are no cases --

Justice Potter Stewart: Presumably there aren't many horses or cows or --

Mr. David W. Robinson Ii: There were no cases involving drug stores until the Charleston versus Mitchell decision, which was decided by this Court a few days before these cases were decided.

Justice Potter Stewart: -- after these convictions?

Mr. David W. Robinson Ii: After these convictions, that's correct.

Now, there is language in an old 1926 decision, which indicates that a refusal to leave after notice would be a misdemeanor, but that's purely dictum.

That case didn't involve a drugstore.

It didn't involve a refusal to anything.

It was simply a comment by the Court in refusal to leave.

It was simply a court comment that it would be a misdemeanor.

There are no other decisions on it and of course, we --.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: It had been applied mostly in rural area -- in rural type cases, involving farmland.

Quite often, you get the question of where there's been a shooting on -- with question of retrieve as to whether the trespasser had a duty to get off the premises when requested to do so.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: That's correct, that's correct, that's correct.

In the Bouie case, coming back to our point number one, the petitioners did brief fully the question of whether or not Bouie was guilty of resisting arrest, and our Supreme Court reversed on that, but when it came to this matter of where he was guilty -- guilty of trespass again, they simply passed it over, and we submit that the question was not properly presented to our Court.

Now, if you conclude that it was, then it's our position that these people had actual notice before they entered these premises.

Our statute says in part every entry after notice from the owner prohibiting such entry shall be a misdemeanor.

In each of these cases, the petitioners testified they had been in these stores many times previously trading in the other departments.

One petitioner testified that he had bought food at the lunch counter to take out.

Also, these petitioners testified specifically that their purpose, their sole purpose in entering these stores was to be served food or not to buy food to take out or not to use the other departments, and the record as a whole show that their entry into these stores was a demonstration to protest the owner's policy of refusing to serve Negroes.

Justice Hugo L. Black: May I ask you just (Inaudible)

Mr. David W. Robinson Ii: Trespass after notice.

Justice Hugo L. Black: The notice was given to the trespasser?

Mr. David W. Robinson Ii: That's -- that's correct.

Justice Hugo L. Black: What difference does it make then by the time that the act, they knew they didn't want?

I thought the crime was being there or going in as to it's warned not to do so?

Mr. David W. Robinson Ii: Well, it seemed to me that the purpose of requiring a notice is to let him know that he is not warned.

If he already knows --

Justice Hugo L. Black: But the statute doesn't make that a crime, does it, either -- on that basis?

Mr. David W. Robinson Ii: Well but it--

Justice Hugo L. Black: If the crime is, and I would think those elements are necessary that he goes on it as he has been warned not to do so by the owner?

Mr. David W. Robinson Ii: Well, it's -- it's our position that by the owners maintaining of this policy, and by the fact that the petitioners knew of it, this notice had been brought home to them before they entered the premises.

Now, he had (Inaudible) that he --

Justice Hugo L. Black: You mean, his desire that in general, people not (Inaudible) there be to certain group that he might change his mind.

The statute, I must -- I must confess I'm impressed somewhat, by my home state statute like this, does make clearly a crime going on there if he has been warned not to do so.

Supposed he knew all along that they didn't want it but they didn't tell him not to.

Can you stretch that to make it a crime?

Mr. David W. Robinson Ii: Well, that's our position.

Justice Hugo L. Black: That's your argument.

Mr. David W. Robinson Ii: That's what our argument is --

Justice Hugo L. Black: That is the acute issue in that point.

Mr. David W. Robinson Ii: That point, that's correct, sir.

We feel it by his holding store out in this manner for sufficient length of time and these people admittedly know it, too and have testified.

They expected to be arrested, that they had no -- because that's our position.

Justice Potter Stewart: That's your position on the merits if you reach the merits?

Mr. David W. Robinson Ii: That's correct.

Justice Potter Stewart: But your preliminary position is --

Mr. David W. Robinson Ii: That's correct.

Justice Potter Stewart: -- that this was never raised (Inaudible).

Mr. David W. Robinson Ii: Right.

Now, if you conclude that it was raised and my interpretation of the statute is wrong, then you reach this constitutional question of vagueness as to whether this is a refusal to leave after which you must find to be proper entry is -- is unconstitutionally vague.

Justice William J. Brennan: On your -- on your first point, will that make it necessary for us to examine the briefs before your Supreme Court as we had to do in Wright versus Georgia, to decide whether in fact the question had been raised?

Mr. David W. Robinson Ii: We felt you should examine.

Justice William J. Brennan: We'll have to do the same thing?

Mr. David W. Robinson Ii: We think so and we have printed them as appendix in our brief so that you can do so?

Justice William J. Brennan: Yes.

Justice Hugo L. Black: May I ask you this question as to the law?

Mr. David W. Robinson Ii: Yes, sir.

Justice Hugo L. Black: Suppose your Supreme Court decided, considered that question even thought it was not raised, do they have the power to do so?

Mr. David W. Robinson Ii: They have the power.

No question about that.

This a Supreme Court rule which they 99% of time enforce, but as happened in the Bouie case, they have the power to look into it, because in Bouie, on the same exceptions, they did reverse the conviction for resisting arrest and the exceptions were just as vague, but it was argued in the brief and the Court had it before them.

Justice Hugo L. Black: Do you think that makes any difference on whether or not we should consider --

Mr. David W. Robinson Ii: Well --

Justice Hugo L. Black: -- that point even though they had chosen for somebody who's not made clear to refuse to pass on it, although they had (Inaudible) this or under the law.

Mr. David W. Robinson Ii: If -- if you're going to find error on the -- it's the part of the state court, we feel this should be taken in consideration in your decision as to whether to review it.

Now, coming to the question of vagueness, this was raised at all in the briefs, in the exceptions, in the questions, and in particular, we like to call your attention to the petitions for rehearings in our state court.

We have a typical procedure, whereby after the Supreme Court's decision, counsel can file a petition for rehearing.

These were filed in this case.

The rule, if I may read to you in part says, "The petition must be filed stating particular the point supposed to have been overlooked or misapprehended by the court."

Now these petitions were -- for rehearing, were not only filed of course after the decisions in these cases.

They were also filed after the decision in the Charleston against Mitchell, which I believe is pending before you now, in which our Court did so construe the statute to make it a trespass, to refuse to leave.

So the precise -- and counsel were the same in all cases.

So counsel had notice of this case and a petition -- the -- the points raised in the petitions for rehearing which are contained in the record make absolutely no reference to this question of vagueness.

And it's our position that this Court under your decisions is without jurisdiction to reverse for -- on a ground, which whereas was not raised at all, it would be highly improper to do so.

Justice Hugo L. Black: Am I right in (Inaudible) if that is the case, I just got a situation that if we did consider then the other case by the court below, happen to find this but refused to pass it on this because the court did not -- the Supreme Court of South Carolina did not pass on it because for some reasons it didn't want to.

It has an outstanding of decision against one and for the other, on precisely the same ground?

Mr. David W. Robinson Ii: I'm afraid I lost -- I lost Your Honor's question.

Justice Hugo L. Black: If you have a -- as I understand it, you say that there is another case in which your Court waives this rule?

Mr. David W. Robinson Ii: Which I -- well, that case is one of the cases -- it waived it as to the question of resisting arrest, but this was -- this question maybe I -- I -- I think I've been confused.

I have said in -- in my first point is it one properly raised.

Now, I think when you say a case doesn't prove or a state doesn't prove a prima facie case that covers the world.

So in a sense, it was raised and I think under those circumstances, our Court could under its rules go into the matter, but this question of vagueness was not raised at all.

Justice Hugo L. Black: Could they have considered it despite that fact?

Mr. David W. Robinson Ii: Well of course, I assume our Court can consider anything.

Justice Hugo L. Black: But could they have considered it when it was raised later?

Mr. David W. Robinson Ii: I believe -- during the petitions for rehearing, they could.

They could've granted a rehearing and considered them.

Justice Hugo L. Black: And may I ask if they present that question there?

Mr. David W. Robinson Ii: They did not mention it in the petition of rehearing.

Justice Hugo L. Black: Did they present it later on?

As I understand, it's never been presented.

Mr. David W. Robinson Ii: Never been presented until we --

Justice Hugo L. Black: Until we've got here.

Mr. David W. Robinson Ii: -- until we got here.

Justice Hugo L. Black: That is the question.

Mr. David W. Robinson Ii: That's it --

Justice Hugo L. Black: That's what I understand.

Mr. David W. Robinson Ii: That's it.

It was never presented.

I believed it first showed up in a petition for a writ of certiorari.

It was the first time that this came up.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: That -- it was really a companion and in this case, in the Barr case, they said, "We're not going to consider it because the exceptions don't comply with our rules."

In the Bouie case, they did comment in one sentence, I believe in the opinion, that in discussing the resisting arrest question, they said they're obviously guilty of trespass.

Now, whether there was -- their theory was -- was a theory I'm proposing that they had noticed before they went in, or whether it was refusal to enter, it's impossible to tell on the right.

In short, it's our position that under the decisions of this Court, it would be highly improper to -- to rule that the lower court is an error on a ground, which it never had the opportunity to conserve it.

And we submit that that basis of the case should be affirmed.

Chief Justice Earl Warren: (Inaudible) susceptible the interpretation that they must be informed more that the Court (Inaudible), would there be any evidence of any crime in this case pursuant to crime?

Mr. David W. Robinson Ii: If the Court concluded that they had actual notice, then of course they would've been forewarned.

Now, if the Court concluded that that actual notice didn't count.

Chief Justice Earl Warren: Didn't what?

Mr. David W. Robinson Ii: Did not count, I mean, that you couldn't consider that, then you would be faced with the question of whether refusal to leave was -- or that kind of construction was vague, but it's --

Chief Justice Earl Warren: Could there be any -- could there be any evidence of any kind of a crime that we -- if we can prove that you just pass?

Mr. David W. Robinson Ii: Well, they did refuse.

You mean that you -- you say that -- that you will not -- that the only way our statute can be construed is forewarning.

Chief Justice Earl Warren: Right.

Mr. David W. Robinson Ii: Well, the only evidence we have of that is their actual knowledge.

Now, short of that we have none.

Chief Justice Earl Warren: Alright, now we say -- if we were to say that that was not full, is there any evidence in this case at all that prove corpus delicti?

Mr. David W. Robinson Ii: I'm not sure I know what that means, Your Honor.

I (Inaudible)

Chief Justice Earl Warren: (Inaudible)

Mr. David W. Robinson Ii: Yes.

Chief Justice Earl Warren: Is there any -- is there any evidence on here?

Mr. David W. Robinson Ii: None, none.

Chief Justice Earl Warren: Then if we put that interpretation, it would not be issues that may be raised in the trial court that corpus delicti has not been proven --

Mr. David W. Robinson Ii: Not.

Chief Justice Earl Warren: -- (Inaudible) for us?

Mr. David W. Robinson Ii: Not, if they put another interpretation on the state statute.

Of course, they have since construed that statute and I believe their construction is binding on Your Honors.

Chief Justice Earl Warren: What?

Mr. David W. Robinson Ii: In, it's bind --I believe that the state court's construction of the statute that a refusal to leave does violate it if binding upon this Court and in the Charleston case, they did make that decision, which the Charleston case really was a companion case to this.

Justice Tom C. Clark: It's not here though.

Mr. David W. Robinson Ii: It's not.

I understand it's on the way, Your Honor.

I don't know but we're not involved.

It's not here, but you can only make that finding if -- if you were free to interpret the statute, is what I'm trying to say and it's my point that I believe the state court's decision is binding upon this Court as to what the statute meant.

Chief Justice Earl Warren: And that forces us within vagueness.

Mr. David W. Robinson Ii: That's correct and it's our point that that absolutely was not raised, and that the state court should have an opportunity to consider the question before it is held in error in that construction.

Justice Byron R. White: What was the -- what was the other case?

Mr. David W. Robinson Ii: The Charleston against Mitchell, 230 -- 123 S.E.2d 512.

Justice William J. Brennan: When was that decided?

Mr. David W. Robinson Ii: It was decided December 14th, one day before -- one day after Barr and about two months before Bouie.

They were all decided (Inaudible)

Justice Byron R. White: And what did -- what they hold in that case?

Mr. David W. Robinson Ii: The name of it?

Justice Byron R. White: No, what did they hold?

Mr. David W. Robinson Ii: They construed our state statute as making refusal to leave, after warning a crime of trespass.

Justice Byron R. White: And wouldn't you even think that's exactly what they meant in the Bouie?

Mr. David W. Robinson Ii: I think it's possible to conclude that, but the --the record -- the opinion themselves don't say so and if -- if I could--

Justice Byron R. White: But -- but they did say in the Charleston case which went to those alternatives, they were relying on?

Mr. David W. Robinson Ii: That's correct, that's correct, but the point was argued in brief.

I personally went and looked at the briefs and it was briefed and argued in the Charleston case.

They won't raise it.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: Let me say -- to start, there's no evidence in the record, the record itself, and our record indicates to the contrary.

One of these petitioners testified he had eaten in many public places.

Justice Arthur J. Goldberg: What?

Mr. David W. Robinson Ii: He testified he had eaten in many public places.

There was -- the stores themselves would be segregated in all other departments.

Now, in all frankness there was at the time on these cases, most of the lunch counters in Columbia were segregated.

It's my view this has nothing to do with the state.

The state is completely apart.

Let me say it first before I get in to it.

It's my belief that custom makes our law and that under our form of government, the wishes of the people through the vote and through our system determines the state law.

It is not vice versa.

We don't have a situation where the state tells the people what to do.

Under our form of government, we tell the state through our vote and through our choices and it's my belief that custom makes the law and many of these statutes on the book are still there, the -- the eight statutes and most of them -- I think couple on them this Court's held unconstitutional.

There's no question that -- that they're viable, but there are statutes.

Justice Arthur J. Goldberg: Did the custom (Inaudible)?

Mr. David W. Robinson Ii: I think custom proves, it wouldn't work, Your Honor.

I think it had a party.

If I could try to change the focus on these cases a little bit, as to what we're really talking about in the state action aspect of it.

These owners have taken their money and invested their money in a store.

They have -- they're in this business for profit.

They made a judgment that they can serve both races in all departments except the lunch counter and make a profit, but they have found that they cannot make a profit in that lunch counter if they serve both races and so they have chosen to serve the white race and exclude the Negro.

Now, this is -- this is the private owner's decision, no matter what else is said.

He wants profit.

Both of these owners I believe testified that personally he didn't care and I don't think many of them do.

It's strictly a profit motive involved in these things.

Now, the Negro comes along and he is protesting this judgment.

He's not interested in the profit either, but he has a racial point to make and he comes in to the store to protest this decision.

Now, the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: It's derived from the feelings of his customer.

It's --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: I think Your Honor's comment earlier was that, if you go all the way back, it was a source of slavery and a source of the -- the condition of the Negro when he was brought to this country.

He had none of the Western culture or civilization behind him.

His -- his manners, his morals, everything was different and he was -- he was a different person completely from a white person when he first came.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: I'm --well, I'm certainly it is.

There's no -- no question.

It comes from that whole background has started, but when --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: Well --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: I will -- I may have been too broad.

Let me answer you Your Honor this way.

I do not think that the slavery law created the segregation.

I think the condition of the Negro when he came to this country created it.

I think there is some difference.

I believe that he's -- the fact that he was so different in background, culture, morals, sanitation and everything is what accounted for this segregation, whereby the white people did not want to share their every -- all of their everyday lives with him.

Now, I don't -- I don't think that the slavery law is necessarily causing it.

Chief Justice Earl Warren: (Inaudible) consisting on that segregation on -- as effect?

Mr. David W. Robinson Ii: Our state is -- itself is more and more mannered.

Well, first of all let me say in this area, we think the state has never insisted.

Well, it's true that we may admit it -- let me rebut if I may some -- some comments, if the Court please.

We --one Negro went into Clemson this year, in addition to the one ordered in by the courts.

Two neighbors went into the University of South Carolina this year, in addition to the one ordered by the courts.

We are making progress.

Now, this thing will not change overnight, but --

Chief Justice Earl Warren: (Inaudible) by the court order?

Mr. David W. Robinson Ii: They did not, no sir.

Two of them is in the South -- South Carolina -- well, one in the university went in on the court order.

Two more went in.

In the sense, it was a court order in that it was a class action, but there was no specific proceeding brought for those -- those other two.

Same thing was true in Clemson.

It's true that was a class action decision on the books, but there were no separate precedent for that.

Charleston has been ordered, desegregated with respect to the state parks.

Let me add two, that there's a legislative committee going about the state now, holding hearings on the state parks and the unanimous settlement at these hearings has been to keep the parks open and to open them next year.

The Legislature will act on the matter next spring.

It is not foreclosed.

That's what I'm -- I would like this Court to know.

Chief Justice Earl Warren: (Inaudible)

Mr. David W. Robinson Ii: I don't know.

Chief Justice Earl Warren: (Inaudible) be segregated in August 21, 1962.

Mr. David W. Robinson Ii: There were some statements by various politicians, some that we will close, and I think the parks did actually close.

The court order didn't order them integrated until mid-September after the summer season and I think at that time, the parks were closed.

Now, the legislative committee, the problem has don't back -- has been back and the legislative has lapped and the -- this committee is going about the state and from all I have read, the parks are going to be open again next summer because the overwhelming -- someone has been to open by all -- all races to here.

Now, I just want -- don't want the Court to think that the matter -- isn't an end, that we're not state park business, we're not necessary.

Chief Justice Earl Warren: Well, how about some of the other -- some of the other laws that are required to (Inaudible)?

Mr. David W. Robinson Ii: The law itself --

Chief Justice Earl Warren: -- requires the segregation?

Mr. David W. Robinson Ii: I believe that law is still on the books.

Yes sir, I think this Ms. Motley is correct in her statement at all.

Chief Justice Earl Warren: For instance in changing that.

Mr. David W. Robinson Ii: There is usually segregation in, for instance in change, yes to me knowledge.

Chief Justice Earl Warren: We have a law (Inaudible)

Mr. David W. Robinson Ii: That -- that's correct and I believed it's followed.

Yes, sir I think --

Justice Potter Stewart: Do you know if any state where there's not segregation in penal institution?

Mr. David W. Robinson Ii: I'm not really qualified to say, Your Honor.

I don't want to --

Chief Justice Earl Warren: Do you know if any -- any others or a state law is required (Inaudible)?

Mr. David W. Robinson Ii: I -- I do not know.

I do not -- I just don't know.

I'm not really familiar with it.

Chief Justice Earl Warren: How about state Farriers, they required segregation.

Mr. David W. Robinson Ii: I don't believe we have any state Farriers left Your Honor but I'm not sure.

I can't think of any off hand.

Chief Justice Earl Warren: Are there any parks (Inaudible) that is required in 62?

How about any counter (Inaudible) restaurants is put into place?

Mr. David W. Robinson Ii: I believed that statute is on the books but I believe this Court has declared as un -- not necessarily, the statute but the purposeful that it stands of unconstitutional, we do have immigration in our carrier stations and statute is following them.

Justice Tom C. Clark: Do they have it in the restaurants?

Mr. David W. Robinson Ii: Most of the restaurants in Columbia are still segregated.

There are demonstrations taking place there now, which began about month so ago, up until that time, we have had none.

The lunch counters, most of which were the big chain stores like Eckerds is a chain store, did desegregate over year and a half ago.

The Taylor Street Pharmacy and the Barr case went out of business.

They shutdown lunch counter altogether and put up vending machines, which served coffee and so on.

They no longer have a lunch counter.

Coming back if I may to the point where these demonstrators or petitioners entered the store in protest of the management's policy.

They asked to be served a cup of coffee on one hand.

The management persisted in his policy of serving only one race.

That is a discriminatory act.

At that point, the discrimination has occurred.

Now, we respectfully submit that there has been absolutely no state action to that point.

In fact, the state is not in the picture.

It's simply a private individual who refuses service.

Now, the problem comes when these -- these people are asked to leave and really the management pulls out another right altogether when he asked these people to leave.

He pulls out a property right and that is the right to determine the people on his premises.

Now, it can be argued that the reason he asked them to leave was because they were Negroes, but I submit to you the real reason he asked them to leave was because he wasn't going to serve, which is the act of discrimination earlier.

In other words, it's like a -- a boy who wants to buy cigarettes and the owner refuses to sell it to him because he's too young.

And then the boy stands there, well the owner finally says, "Leave the premises."

He's not saying leave because the boy is too young for cigarettes, he's saying leave because he's not on the business with him anymore.

It's the same as the owner requesting any unwanted customer to leave and this is the property and at this point --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: No, no.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David W. Robinson Ii: That's -- but -- but the decision to refuse service it -- and he could seat them until doomsday and we've got to constitutional problem before the court.

The real problem comes when because he's not going to refuse to -- because he's not going to feed him, he then says leave and that is -- he's -- he's telling to leave like he would any unwanted customer and he's really in a -- in a different standing at that time.

Now when -- when the Negro refuses, he's -- he's now a trespasser as to that owner and under the law of our state, the owner has a choice of either using self help which he can do in our state or of calling the police and in these cases, the owner chose to call the police and we get a constitutional question.

Let me ask you now, what is the state's interest in those trespassers?

Chief Justice Earl Warren: Let me point out to you something (Inaudible) the police came into the (Inaudible), but only having the state to impose the Deputy Sheriff in the store (Inaudible) and then comes the manager, (Inaudible), he said that the police came and (Inaudible) states action before these people into the store?

Mr. David W. Robinson Ii: I don't believe it's state action of constitutional, no, if I may explain.

Chief Justice Earl Warren: (Inaudible)

Mr. David W. Robinson Ii: No, sir I don't think so.

There have been prior demonstrations in the store.

The evidence shows that.

The Bouie case, which was Eckerds, took place on a Monday and Simon Bouie testified -- now there was -- the police testified that Simon Bouie, when arrested clapped his hands and commented, "I wonder how many they'll get tomorrow" and that tomorrow was a Taylor Street Pharmacy case.

Now, how the police found out for sure that they were coming to the Taylor Street Pharmacy, I don't know, but the police notified the manager who had had a demonstration in his store the week before and knew what it amounted to and it was simply a question of the police being there anytime knowing when they would come.

I don't believe that alone, it puts the -- the state into the picture.

It would mean simply that if you know a crime is going to be committed, you got to let it be committed and not have an officer there to prevent it.

Chief Justice Earl Warren: How does the state knows that the crime has committed?

Mr. David W. Robinson Ii: Because of the past history of what happened on Monday --

Chief Justice Earl Warren: At that particular store --

Mr. David W. Robinson Ii: In another store.

Chief Justice Earl Warren: In another store.

Mr. David W. Robinson Ii: And an earlier case in this store.

Chief Justice Earl Warren: Did they presume?

Did they presume that that is to be the rule in every store and (Inaudible) any store?

Bouie and every store and that if any Negroes go to any store that (Inaudible)?

Mr. David W. Robinson Ii: No, sir.

I think that this manager in the Taylor Street case had made it clear, what his preferences were and these were demonstration, Your Honor.

I think this Court can take judicial notice of --

Chief Justice Earl Warren: I presume the manager said the police came and informed him of the demonstration, and we were working as a group.

Mr. David W. Robinson Ii: I think that -- that -- what he means there is he told -- he didn't ask the police to arrest these people.

We don't -- we can't say -- the record won't sustain it.

What he told the police is, "I want them out."

And they were working to a group in the sense that he and the police had agreed that after he told him to leave, if they did not leave, the police would then arrest them.

I think that is that fact.

Chief Justice Earl Warren: This is all -- this is all before the police has ever came (Voice Overlap) --

Mr. David W. Robinson Ii: That's correct, but both the police and the management had had experience with these demonstration.

Chief Justice Earl Warren: And were working as a group to prevent them from coming in and demand their constitutional right?

Mr. David W. Robinson Ii: I think that's -- they were working as a group to remove them from the premises if they refuse to leave when requested.

I don't think there's any question about it, but I think the decision, and as I would like to explain, the decision to -- to exclude was not that of the police.

The decision itself was made by the proprietor to refuse them to come in.

Now, he turns to the police.

Under our law, he could've told the police to get out and he could have used self-help to run these people off, but he chose the police.

Now, the police came, and I think it's interesting to see -- it's important to see what the state's interest in a trespasser is.

One of the state's interest is this property right and it's true that property can be regulated and it's true that public property can be more regulated.

What the primary interest of the state and a trespasser we submit is keeping the peace, because if the owner goes to self-help, a breach of the peace will occur, at least a breach in the layman sense is going to be bias and the state's interest in enforcing a trespass law, is to prevent the necessity for the owner having to go to self- help and to keep the peace and those interests have nothing to do with racial discrimination.

And we submit that when the state comes in, in these cases, the discrimination has occurred and they are simply enforcing the criminal law, which itself is color blind and applies to all in removing these people from the premises.

If you hold otherwise, the effect is going to be, it seems to me to say that the Fourteenth Amendment prohibits -- permits one to violate the criminal law of the state without being prosecuted if at the time he's violating that law he is being racially discriminated against by another private individual, which we submit has never been the law until now.

Justice Hugo L. Black: (Inaudible)

Mr. David W. Robinson Ii: Yes sir, excuse me.

Justice Hugo L. Black: (Inaudible) you are -- you say that the -- the law of South Carolina at the time this occurred, but then a restaurant to serve people or did not.

Mr. David W. Robinson Ii: It did --

Justice Hugo L. Black: I'm not talking about legally or unconstitutional, was that alone --

Mr. David W. Robinson Ii: No, sir.

Justice Hugo L. Black: -- on the books?

Mr. David W. Robinson Ii: No, sir.

Justice Hugo L. Black: At that time?

Mr. David W. Robinson Ii: No, sir.

Justice Hugo L. Black: That required -- made it a criminal offense or imposed any kind of duty on this restaurant owner who refused from serving these people?

Mr. David W. Robinson Ii: No, Your Honor.

The only law on the books that is even in the same field is this statute talking about carriers, railway terminals, restaurants.

There is a statute cited in the footnote in the petitioner's brief, which deals with restaurants in public carrier facilities.

There is no statute on the books in South Carolina with regard to private eating establishment.

Justice Hugo L. Black: You -- is it, could it arguably be made that the owner couldn't be required to try to distinguish between a restaurant that was in -- part of the carrier that others was not?

In other words, how did he know that he wasn't violating that law if he let them into?

Mr. David W. Robinson Ii: Well --

Justice Hugo L. Black: And I presume that if the law did bar it, state law, you would say he is (Inaudible)

Mr. David W. Robinson Ii: Oh, certainly, if the law itself would unconstitutional -- I mean (Voice Overlap) --

Justice Hugo L. Black: But even if it's unconstitutional which is on the book?

Mr. David W. Robinson Ii: Well, that the law itself -- in the law, I haven't -- I frankly haven't examined it, but from the title of it, I'm sure that it's limited to eating facilities and place, and determine, for carriers.

It had nothing to do with lunch counters in private stores I believe.

Now, I'd be frank with Your Honor, I have not reviewed that statute.

I felt it was completely irrelevant to this case.

If there was no way to tell from the statute where it applied, it would be probably unconstitutional and vague too, but there were no -- there were no ordinances, there were no statutes other than that one that applied.

Justice Hugo L. Black: But what you said in Peterson that -- that I recall it?

We would not try to get in to the middle ages of the person who know whether he was prompted by the law or was not and I presume that by the fact conversely I may say the future go, but -- about the middle ages, but if you did have a statute there, which on it face made it illegal or crime to serve white and colored people together in some kinds of restaurants, do you think it would be a -- an unfair about following or (Inaudible) to say that that was enough to come to it?

Mr. David W. Robinson Ii: My answer would be that in Peterson, your -- your ordinance was clearly and applicable to the restaurant in question and here, I believe the statute is not and it seems to me that -- that your finding should only be such where it's clear, that the owner was subject to the statute and had no choice.

Justice Hugo L. Black: A lawyer could read it of course and to say that it doesn't cover.

Mr. David W. Robinson Ii: That's the problem -- I can't argue with that, Your Honor.

Justice Tom C. Clark: I understand that they had admitted that they didn't carry this particular (Inaudible)

Mr. David W. Robinson Ii: I believe they did.

Justice Tom C. Clark: It says the customs of these other massive statutes created a custom among the people that caused this restaurant owner to hesitate to not to serve, is that right?

Mr. David W. Robinson Ii: I believe that's what they said.

Justice Tom C. Clark: Well, in the long and -- the long and short that the people has (Inaudible) that it holding was, is as long as the state had law, which forbad letting them to be together in places, would you say the same present -- particularly at the same time?

As long as it did that, we wouldn't go and look to see whether the owner did it because he thought he had to or because he wanted to.

Mr. David W. Robinson Ii: That's correct.

Justice Hugo L. Black: And you say that this statute such that we should not pass in that same kind of responsibility on the state under writ.

Mr. David W. Robinson Ii: That's correct.

Yes, sir.

That's our position.

Let me, if I may in fact suggest another distinction that has been that -- that has been suggested for Shelley.

It's our position that Shelley does not control your decision in this case and that it is distinguishable on a little bit different ground than has been suggested had you done.

It is our view that the question of what -- what is state action and what is not is determined by -- determined by whether or not the state makes the effective decision to discriminate.

Now in the Shelley case, the Negro had taken title to his property.

He had legal title to the land in question.

No private individual by rightful conduct could deprive him of that title.

That title was vested in the state law and no one could take it away from him except the state and the state was faced with a question of taking that Negro's property away from him because he was a Negro and enforcing a covenant or not enforcing a covenant and letting the Negro keep his property and when the state decided to take the course which was racially discriminatory, it was an effective part of the decision to discriminate.

Now in this case, the decision to discriminate was made by the private proprietor himself.

The state, we submit, had no part in that decision.

The state, but -- neither is a state enforcing that decision because the proprietor had the right through his own self-help to remove these people, because the state's interest in keeping the peace with such that it intervened to remove these people, thus, we submit make it an effective part of the decision.

In other words that if the owner had had no right to self-help, then, we may have a situation where the state is becoming an effective part of the decision in moving them out, but where the owner has that right and the state's own interest is solely out of keeping the peace, we submit the state is not a party to the discriminatory decision and this we will submit --

Chief Justice Earl Warren: (Inaudible) if the owner of the property sell more than he had more than he owned?

Mr. David W. Robinson Ii: He couldn't convey legal title more than he owned, I don't believe that.

Chief Justice Earl Warren: Now, he -- he had a limitation of his right and the limitation of this covenant.

Mr. David W. Robinson Ii: Well, it was only valid if sustained by the state court that that covenant was only valid if the state sustained them and led its way in depriving this Negro of his property, which his neighbors couldn't come in forcibly and take his title.

It had to be done by the state.

Our situation, the proprietor can under the previous decisions of this Court refuse that service and can under state law evict this trespasser by self-help.

We submit the state's participation in solely that to keep the peace, to keep the party from falling into a fight.

Get him out of the restaurant, and the state is not a party to the discriminatory decision.

I think there is a difference.

That's all suggestion of a difference, you might consider in addition to those, which were urged on you this morning.

Justice Hugo L. Black: Whose contract was violated in the Shelley v. Kraemer?

And when was the contract made?

Mr. David W. Robinson Ii: I believe that the contract involved prior owners was made by prior owners of the property in question.

Of course, it was a contractual.

Justice Hugo L. Black: What has -- what has happened in the meantime, during the four years period?

Mr. David W. Robinson Ii: I believe the property had changed hands several times as I recall, Your Honor.

Justice Hugo L. Black: Was anything in those new deeds over the years that -- that contained this covenant?

Mr. David W. Robinson Ii: I don't recall in the record indicating any -- anything on that either way.

Justice Hugo L. Black: But you had there whether it's significant or not?

While it's an old contract made many years before (Inaudible), it did and I assume you did at that time, it could (Inaudible), what should be done in 40 years here?

Mr. David W. Robinson Ii: That's precisely correct.

Justice Hugo L. Black: And determining what could be done to a land with somebody else's home.

It may not be significant, but it's tied into a pretty significant part of this country's history in regards to the ownership of land.

Justice Tom C. Clark: As a matter of fact, the owner, the seller across to here, had the right to refuse to sell, does he not?

Mr. David W. Robinson Ii: Yes, sir and this is some of --.

Justice Tom C. Clark: He elected to sell the contract to the old covenant.

Mr. David W. Robinson Ii: This -- this is -- this is our position that we in this case, the proprietor has got the right to refuse to serve.

It's -- that is where -- that's our case is what we submit here.

That's right.

In conclusion, it's -- it's our position that -- that there has been no state participation in the decision.

The state's interest is solely that of the peace and if you hold of that interest itself is --is prohibited state action, then I believe you're -- you're turning these proprietors loose on a self-help situation.

They are in the middle.

They are in this business for profit.

I think that's quite often overlooked and they are bound by the wishes of the public, by the customers and of course, no decree of this Court will change that view overnight.

The -- the -- the proprietor himself quite frequently has no -- doesn't care, but he's in this thing to make money.

That is the problem he had.

We thank you for your time.

Featured:

Wright v. Georgia - Oral Argument

Tue, 25 Sep 2012 22:37:00 +0000

Case:

Wright v. Georgia

Media File:

68_19621107-argument

Related Transcript:

68_19621107-argument

Transcript:

Argument of James M. Nabrit, Iii

Chief Justice Earl Warren: Number 68, Nathaniel Wright, et al., Petitioners, versus Georgia.

Mr. Nabrit.

Mr. James M. Nabrit, Iii: Mr. Chief Justice, may it please the Court.

This case is on somewhat unlikely six cases which have preceded it this week and that here, arrest have been made for conduct on city property, city park property, managed by a city department but it is similar to those other six cases.

And that here again, the police are engaged in enforcing segregation customs as if they were an extension of or part of the law.

This case is before the Court on writ of certiorari to the Supreme Court of Georgia brought by six young Negro men from Savannah, who were convicted of the crime of unlawful assembly under Section 26-5301 of Georgia Code, that statute which appears on page 2 of our brief punishes any two or more person who assemble and this is the key language, assemble for the purpose of disturbing the public peace or committing any unlawful act and fails to disperse on the command of peace officers, etcetera.

The petitioners were charged under an accusation filed substantially in the statutory language for assembling at Daffin Park in Savannah, Georgia for the purpose of disturbing the public peace.

No reference was made in the accusation to the second clause relating to committing any unlawful act.

And petitioners were convicted in the City Court of Savannah by a jury and sentenced to fines or to imprisonment in default of payment of the fines.

On appeal, their convictions were affirmed by the Supreme Court of Georgia.

In the courts below and here, we contend the petitioners have asserted due process claims that they were convicted without evidence of their guilt and convicted under a vague statute which denied them due process.

I think it's important to look at the facts in some detail because of the no evidence claim.

The four witnesses testified at the trial in the state court.

Two of them were -- only two of them were witnesses to the incident which led to the arrest.

They were the two arresting officers.

The other two people who have testified were police sergeant who came upon the scene after the arrest had been made and the head of the city park department who wasn't there at all.

It had no contact with the petitioners whether a witness to the incident.

He didn't know about it until after.

So that the facts I'm giving you, the arresting officers' version of what transpired and I submit that it demonstrates completely that the petitioners are guilty of no criminal acts of any kind.

Now, on January 23rd, 1961 at about two o'clock in the afternoon, police officers Thompson and Hillers were on duty in Daffin Park which is a 50-acre recreational park which as I have said is managed and operated by the City of Savannah.

They were in their currently --

Justice Hugo L. Black: This is owned and operated by the City of Savannah?

Mr. James M. Nabrit, Iii: I understand that that is the fact, Your Honor, and that there's no dispute about that.

The testimony of the park manager at page -- beginning at the bottom of page 42, indicates that he is the superintendent of the recreational department of the city and as superintendent, he is overall the pick playgrounds in the city and later on in his testimony, he lists them and mentions the Daffin Park.

There's no explicit statement about ownership but it's never been contested.

And I'm sure that the city attorneys will confirm that.

Now, where officers Thompson and Hillers were approached by a person who was identified only in the record as a white lady, and she is, according to Officer Thompson's testimony supposed have told them that there were colored people playing basketball in the park.

And Officer Thompson made it clear that as soon as he heard this, he pres -- he and his fellow officer preceded immediately to the basketball court.

He said, “I did not ask this white lady how old these people were.

As soon as I found out these were colored people, I immediately went there.”

And when Officers Thompson and Hillers got to the basketball court, they found the six petitioners playing basketball.

Both officers agreed that that was all it was going on.

Officer Hillers' testimony at page 50 says, “When I arrived, the defendants were playing basketball.

They were not necessarily creating any disorder.

They were just shooting at the goal.

That's all they were doing.

They weren't disturbing anything.”

And Officer Thompson's testimony at page 41 is the same.

He said that at the middle of the page, “I've observed the conduct of these people when they were on the basketball court and they were doing nothing besides playing basketball.”

He goes on to say, they were normally playing basketball and no children around.

Justice Hugo L. Black: There is what?

Mr. James M. Nabrit, Iii: There were no children around.

In the earlier point in his testimony, Mr. Justice Black, he had mentioned that there were schools in the neighborhood.

That the schools let out at about 2:30 in the afternoon and that at that time, the children usually came to this area to play but that this was about two o'clock.

Justice Hugo L. Black: Did you say that claim that basketball it was against the rule of the city to play basketball in the park?

Mr. James M. Nabrit, Iii: The -- at per se, no, sir.

No, sir.

This facility was obviously designed for playing basketball.

Justice Hugo L. Black: There's no claim by the city that it was not available for and use for playing basketball, is it not?

Mr. James M. Nabrit, Iii: No.

That is correct.

The city in its brief in this Court makes an argument about a park rule or a claimed argument that this facility was for children and not for adults.

This was something that was never relied upon by the arresting officer.

Again on page 41, the officer expressly disclaimed any reliance on this.

At the end of that first paragraph -- the first paragraph which starts on the page, Officer Thompson said, “I have never made previous arrests in Daffin Park because people played basketball there.

I don't have any knowledge from myself that any certain age group is limited to any particular basketball court.

I don't know the rules of the City Recreational Department.”

Officer Thompson gave --

Chief Justice Earl Warren: Were any rules presented to the Court in this case, any written rules?

Mr. James M. Nabrit, Iii: No, Your Honor.

There were no written rules.

There was some testimony by the park superintendent as to certain preferences and priorities that he had in his own mind.

I submit that these were very vaguely defined and in part contradictory but the important thing is that there is no reason at all to think that the petitioners had any notice of what was in the park superintendent's mind or any reason to -- or an opportunity to know about it.

The --

Justice Hugo L. Black: Is there any finding of fact?

Mr. James M. Nabrit, Iii: Your Honor, there's a general finding of guilty.

Justice Hugo L. Black: That the persons like these, I'm not talking about colors but persons to play basketball in the park was prohibited by the city and applied to everybody in the same way.

Mr. James M. Nabrit, Iii: Well, there is no indication to that of anything of that kind.

Justice Hugo L. Black: Any fact, no finding to that effect.

Mr. James M. Nabrit, Iii: There is only a general finding of guilty by the jury.

There are no court findings in the record.

Justice Hugo L. Black: Anything in the charge to the jury?

Mr. James M. Nabrit, Iii: The charge -- no, sir.

The charge to the jury contained no discussion of the evidence, no definition of the offense beyond a reading of the statute to the jury and a statement to them that these police officers were peace officers within the meaning of the statute.

That was the only explanation of the statute given to the jury.

Now, turning again to the scene when the officers arrived, they proceeded immediately upon arriving to order these petitioners to leave the basketball court.

At this point, one petitioner asked the officer who, as Officer Thompson, who ordered him to come out here and what does authority well to come out here and order them all, and Officer Thompson responded that he didn't need any authority, he didn't need any orders.

And another petitioner began to write down the officer's badge numbers and when they didn't leave after a few moments, they were all placed under arrest.

Now, Officer Thompson --

Justice John M. Harlan: Is there any physical resistance from the officer?

Mr. James M. Nabrit, Iii: No, sir.

No indication of that at all.

In fact, the State attempts to make something of the fact that these -- I don't quite understand how this helps the State's case but they attempt to argue something from the fact that the petitioners were cooperative with the officers and got in his car without any arguing and when they were placed under arrest.

The -- when the -- Officer Thompson testified at the trial, he stated in language that is clear as day on page 41, that he had a racial reason for this arrest.

Right in the middle of the page there, beginning of that paragraph he said, “I arrested these people for playing basketball in Daffin Park.

One reason was because they were Negroes.”

And everything about his conduct confirms that that was -- he's consistent with that reason.

And that, he said that he immediately went to the scene when he found out that colored people were playing in the park.

And there is additional testimony in the record that this park was one which it customarily been used only by white people.

That the City of Savannah establishes its parks in colored and white neighborhood as such.

That if the park superintendent testified that it was customary to use this park separately for the different races at page 45.

Now, Officer Thompson also mentioned another reason which is if it means anything related to race but is really completely unsubstantiated, he said that he may -- he said at another point on page 40 that the purpose of asking them to leave was to keep them trouble which appeared to him might start and he referred to the fact that there were five or six cars driving around the park with white people in it.

At another place on cross-examination, he acknowledged that these cars were on a driveway which passed the court, basketball courts, and that this was not unusual traffic for the time of the day.

Curios thing about the testimony is that there's nothing at all -- at all to give us any information about the conduct, the demeanor of these people within the cars, there's nothing to even indicate that they observed the petitioners, that the petitioners observed them.

There's no indication that they slowed down, that they drove by repeatedly.

There's nothing at all to make -- to connect this up.

And as a justification of substantiation the officers expressed for their fears of trouble might start.

There was no one else around.

There was no one else present on the -- in the area at all.

Justice Hugo L. Black: Did the charge contain anything based on such an assumption that that was an issue?

Mr. James M. Nabrit, Iii: The charge of the jury or the accusation?

Justice Hugo L. Black: Yes, the charge to the jury.

Mr. James M. Nabrit, Iii: The charge to the jury, Your Honor, which appears.

Justice Hugo L. Black: I just read it.

And I --

Mr. James M. Nabrit, Iii: I don't think so.

Justice Hugo L. Black: You seem to submit it on the fact that they were there and the officer ordered them to leave and they had to leave.

Mr. James M. Nabrit, Iii: Well, that's right.

That's how I view it, Your Honor.

The -- but in any event, the -- this was one of the things expressed by the officer during the trial.

Beyond this, there is none.

Beyond this is completely unsubstantiated fear of trouble.

And his positive statement that his other reason was because they were Negroes, that is the State's proof.

Justice Hugo L. Black: The statute is broad enough to cover what was shown to be done here, is it not?

Because it said, assemble for purpose of disturbing public peace or for committing any unlawful act must moved on and ordered by a judge, justice, sheriff, constable, court and not any other people.

Mr. James M. Nabrit, Iii: I don't know if Your Honor misread that on that.

It's unlawful act.

Justice Hugo L. Black: I'm reading it -- I'm reading it from page 62.

Mr. James M. Nabrit, Iii: It's for committing any unlawful act.

Justice Hugo L. Black: It says here any lawful act probably has a strength as it appears in the Court --

Mr. James M. Nabrit, Iii: You're reading from the judge's charge to the jury.

Justice Hugo L. Black: Page 63.

Mr. James M. Nabrit, Iii: That is a misquotation of the statute as it appears in the Code.

Justice Hugo L. Black: Then it has --

Mr. James M. Nabrit, Iii: Whether that represents what he read to the jury or not, Your Honor, I don't know.

We have only the court report or certificates.

Justice Hugo L. Black: It happened to be under the statute -- under the statute, they assemble for the purpose of disturbing the public peace or committing any unlawful act.

Mr. James M. Nabrit, Iii: That's correct.

The correct statute appears to be -- to my brief.

Justice Hugo L. Black: But what did he charge to do would be the unlawful act?

Mr. James M. Nabrit, Iii: The -- well, I don't believe that he charged them anything and I point out again as I attempted too early that the accusation itself never relied on that part of the statute committing any unlawful act.

This is something which the court below also observed in its opinion when it said the only thing involved with the phrase ‘disturbing the public peace' or ‘purpose of disturbing a public peace'.

In answer to Your Honor, the original question I'm at who ever this statute covered this conduct.

I state that this statute is probably so vague and indefinite that it could cover almost any type of lawful conduct.

This statute has been authoritatively construed by the Georgia Court of Appeals to go to cover acts which I consider beyond the common law meaning of this type -- to go beyond the common law concept of unlawful assembly and the only appellant decision construing this statute in a prosecution order, State against Sanders.

This statute was applied to sit-in demonstrators on facts substantially the same as those in two of the cases in Garner against Louisiana.

These were people who have not been ordered out of a store by any proprietor.

And people who were there in sufferance of the proprietor who were ordered out by police officer.

And in that opinion, it seems to me evident that the Court took this statute beyond any common law concept of disturbing a peace and applied it through the area of liberty protected by Due Process Clause.

Justice Tom C. Clark: You mean as I understand -- are you saying that this statute which is a fairly common statute, isn't it this type on its face is vague?

Mr. James M. Nabrit, Iii: I'm arguing.

Justice Tom C. Clark: Or you're saying that there wasn't evidence to warrant a conviction under the statute.

Mr. James M. Nabrit, Iii: I'm arguing -- I'm making both of those arguments and a third argument which I haven't express yet that the statute didn't give them fair warning, their particular acts were prohibited.

Justice Tom C. Clark: What was argued in the Georgia Court as the federal basis for relief in the Supreme Court?

Mr. James M. Nabrit, Iii: Yes, sir.

Justice Tom C. Clark: Would you -- in the course of your argument, would you point out which of these was directed to the Georgia Supreme Court?

Mr. James M. Nabrit, Iii: Your Honor has perhaps observed that the Georgia Supreme Court's opinion does not at all discuss the facts.

Justice Tom C. Clark: That is correct.

Mr. James M. Nabrit, Iii: And this is a curious thing that might attract the attention of the Court.

It is our contention that the no evidence issue, the vagueness -- and the vagueness of the statute in all of the applications of that term were properly argued and preserved at every stage of the proceedings in the state court.

The vague -- due process vagueness question was first raised in a demurrer.

It was again raised in a motion for a new trial as it was the claim that there was no evidence upon which the defendants could be convicted.

The assignments of error contended that the Court did err in overruling that motion for new trial which embodied the no evidence claim and a due process vagueness claim.

The --

Justice Tom C. Clark: Was there no evidence claim buttressed on the federal constitution?

Mr. James M. Nabrit, Iii: The no evidence claim -- I think it's inherently a federal issue Your Honor that it appears at page 17 of the record.

This is the -- there were six identical motions for new trial.

This is the first one and paragraph one says that the verdict is contrary to evidence and without evidence to support.

There was no particular reference at that point for the Due Process Clause but I believe that Thompson against the City of Louisville stands for the proposition that the conviction without evidence is inherently a due process matter.

Now, the States --

Justice Tom C. Clark: Was it the State's proposition that an allegation of this type or a complaint of this type is sufficient to direct the attention of the Court to the federal question involved?

Mr. James M. Nabrit, Iii: Well, I don't believe that Thompson indicates anything on that one way or another.

However, I submit that this Court -- this Georgia Supreme Court's attention wasn't directed to the problem which we're attempted to raise here.

I'll try to tell you why.

The basis upon which the Georgia Supreme Court determined currently not to consider the evidence was a theory that the petitioners, the defendants there, had impliedly abandoned their claim that the -- there was error in overruling the motion for new trial by their brief in the Georgia Supreme Court.

We -- when the record and the petition for certiorari were filed here certified copies of all of those briefs were deposited with the clerk here so that they're available for the Court to inspect.

Now, we submit that that brief defines what will have of these petitioners and the court below.

While it did not say in the section labeled argument, while there was no subsection saying, “We are now arguing our motion for new trial”, nevertheless did argue these due process issues.

In that, it did argue the facts of the case.

It did argue that the petitioners who were convicted for innocent acts.

It did argue that the officer's conduct was arbitrary and capricious.

There was a long quote from the language in the Yick Wo case about arbitrary application of statutes.

And I might point out that when the Court decided Thompson against Louisville, it cited in support of the notion -- in support of the holding that conviction without evidence was a denial of due process.

One of the cases that was cited was Yick Wo.

Justice John M. Harlan: Accounts have been said at the time the Supreme -- the state court had written.

Mr. James M. Nabrit, Iii: I am inclined to think that it was.

I don't know that the respective dates on hand Your Honor but I know that the date of decision in the State Supreme Court was November a year ago.

Justice John M. Harlan: November 1961.

Mr. James M. Nabrit, Iii: Yes.

I have no knowledge as to when the briefs are filed.

The copies are deposited with the clerk and they very well indicate that.

Now, I'd like to reserve the --

Justice Potter Stewart: Mr. Thompson this is cited in the brief?

Mr. James M. Nabrit, Iii: No, it was not Your Honor.

I believe I'd like to reserve the balance of my time.

Chief Justice Earl Warren: You may.

Mr. Garfunkel.

Argument of Sylvan A. Garfunkel

Mr. Sylvan A. Garfunkel: Mr. Chief Justice and Associate Justices.

I should like to state at the beginning that the City of Georgia and we are not city attorneys; we're the District Attorney's Office.

They call us Solicitor Generals and I'm Chief Assistant Solicitor General in the circuit which is Savannah.

We admit that this was a city operated park.

We further admit that it would be unconstitutional to practice segregation in such a park.

We further admit and feel that if this statute was being used in a manner to preserve segregation in this park as a centrifuge to preserve segregation, then under the facts in this case, this case should be reversed and sent back and the defendants acquitted.

However, we ask the Court to look at the record in this case and study the facts that were developed.

As I heard on the news yesterday --

Chief Justice Earl Warren: Are those issues without those issues with that -- those issues be before us to determine?

Mr. Sylvan A. Garfunkel: Yes, sir.

That's what I was coming to now.

Chief Justice Earl Warren: Yes.

Mr. Sylvan A. Garfunkel: As I heard the arguments yesterday, the Court several term referred to the question of what was the policy.

And as Mr. Nabrit referred to the park superintendent having testified in the development of this case on cross-examination of the -- would understood that the park was being made that these people were arrested because they were Negroes.

It was, therefore, we put the park superintendent on the stand to outline for the jury and the court below, and the Court of Appeals, and when the case came to this Court for this Court to understand the policy of the park playgrounds in Savannah.

And I therefore would like to refer to the Court to page 42 of the record which is the testimony of the playground superintendent, in which he outlined the way the parks were setup in Savannah.

He said, “We tried to put them in areas, wide areas, and in colored areas, although, we have several which are now mixed areas park extensions, and wells park because in certain areas the -- and they play together.”

He says, “That has occurred from time to time, that colored children would play in the Daffin Park area and in the park extension area but no action had been taken because it is legal, it is allowed, and nobody has said anything about it.

“That is in the middle of page 43 of the -- of the record.

Justice William O. Douglas: As Mr. Hagan.

Mr. Sylvan A. Garfunkel: This is Mr. Hagan, the park superintendent, Your Honor.

He said then further on the bottom of the page the playground areas, in further explaining, the playground areas are basically for young children, say 15 to 16 and under along that age group.

We give priorities to the playground to the younger children over the grownups.

It made no difference as to whether they were white or colored.

Anytime that we requested anyone to do something and they refuse, we would ask the police to stop -- it says stop and it's a misprint should be step.

If we would ask them to leave when they did not, we would ask the police to step in.

We have other reports of colored children who have played on the park extension but they were never arrested or told to leave.

He further -- he referred earlier at the course that they had played in the Daffin Park area and not been arrested.

The facts in this case showed that these defendants were grown men, the youngest of which was 23 years of age and the oldest of which was 32 years of age.

That they went upon this playground around 1:30 or 2:00 in the afternoon during a school day.At that time, they were dressed not for playing basketball, but dressed more for business purposes, that is they had all the hard shoes, they had on shirts, jackets, I think some of them might even had ties on them, I'm not sure of the police officer.

Well --

Chief Justice Earl Warren: Is that against the rule?

Mr. Sylvan A. Garfunkel: No, sir.

But it was to go into the question of the bonafide as we -- the purpose of the question of the intent.

That came into the intent because the defendants constantly said they were just merely there for the purpose of playing basketball.

And we said the intent was not to play basketball and although, they've denied this all the way down up to this Court, in their brief in this Court.

They say that perhaps it was not to play basketball but to make a profound nonverbal expression against segregation in public parks.

That's the way they put it so that in order to come into a question of free speech.

However, Mr. Hagan further along with his testimony, said that he further testified that if there were conflict between the younger people and the older people using the park facilities, the preference would be for the younger people to use them.

But the -- we have no objections to all the people using the facilities if there are no younger people present or if they are not -- or if they are not scheduled to be used by the younger people.

He said, and this is on further direct examination, “It has been accustomed to use the park separately for the different races but I couldn't say whether or not a permit would or would not be issued to a person of color if that person came to my office in the recreational department or requested a permit to play on the courts but I don't have the opinion that it would have been.

We have never refused one.

The request has never been made.”

In other words, he says if they came, we would grant them but nobody has ever come and asked and so I can't say that we have done it because nobody has requested it.

Justice John M. Harlan: What does the record shows to whether there were younger people who wanted to play basketball?

Mr. Sylvan A. Garfunkel: I'm trying to come to that right -- right now Your Honor.

The -- further, I would like to give -- to go on to Mr. Hagan's point because then I'll come back to the actual facts.

On school days and this was a school day, these courts and the playground area are at -- at Daffin Park are available for only certain age groups and they are only used at that time of day by the schools in that vicinity.

It is more or less left available for them.

That is the way we have our recreation set up.

In other words, at this time, this park, this playground, was reserved -- I think the evidence shows that there were two schools right across the street, was reserved for the use of these schools.

And he further said that all during the day, these people came from the various schools to play not just during recess but they had physical education activities in which they would come out and play on these playgrounds.

And that all during the day, this particular moment, they might not be there.

They would be -- momentarily they might come in the next five minutes and a policeman knew definitely that the school would be out at 2:30, and at that time, he knew the children would be coming across to play on the playground.

And that this was -- and this policeman so testified in Court that he knew these children were coming.

Justice Hugo L. Black: Was there any issue of this kind submitted to the jury?

Mr. Sylvan A. Garfunkel: Yes, sir.

This was all evidence that went before the jury.

Justice Hugo L. Black: I'm not talking about evidence.

Did the Court charge the jury on that the issue which you were discussing?

Mr. Sylvan A. Garfunkel: Mr. Justice Black, in the Georgia procedure, we have what is known and colloquially as what as known as the Dumb Act.

And that is that the judge is not able to comment on the evidence.

He cannot comment one way or the other on the evidence.

He merely charges the jury on the law.

Justice Hugo L. Black: But he said -- he said, “I have not charged you fully on the law”, but then he charged on the law with reference to some rule that they had that these people had violated.

Mr. Sylvan A. Garfunkel: Well the rule know what they had violated with --

Justice Hugo L. Black: On practice on precedent.

Mr. Sylvan A. Garfunkel: They had violated -- no.

what he charged them was that they had violated the order of the police officer.

Justice Hugo L. Black: Orders of the police officer but is it the law as you understand it in Georgia that a man's charge during the defense of during accepting, it's unlawful and the police officer director orders him to leave that when tried they do not submit any issue to him except whether he had to move when an officer told him.

Mr. Sylvan A. Garfunkel: Is it your -- is the general verdict, it is only a general verdict.

There's no --

Justice Hugo L. Black: I understand the general verdict but does the State have to prove its case?

Mr. Sylvan A. Garfunkel: The State attempt to prove its case --

Justice Hugo L. Black: Yes, but not of its case what you've been arguing to us here that these people were violating the rule because they were playing at the time when children should play?

Mr. Sylvan A. Garfunkel: No, the Court did not go into detail as to whether it violated the rule.

Justice Hugo L. Black: But he mentioned it, didn't he?

Mr. Sylvan A. Garfunkel: No, he did not.

He mentioned in the -- only that they were charged with going on the purpose and this was the question of whether this was an intent to disturb the peace.

All of these were taken into consideration.

Justice Hugo L. Black: But maybe it doesn't affect your argument saying here but as far as the charge is concerned, nothing like this was even pointed out in the charge.

Mr. Sylvan A. Garfunkel: Of the trial judge.

Justice Hugo L. Black: If you are supposed to be charge, I suppose, but the law is what they had violated (Voice Overlap).

Mr. Sylvan A. Garfunkel: The usual trial -- the judges and the courts below of the Georgia courts.

Justice Hugo L. Black: He didn't charge him what would be -- on what they passed on as being lawful or unlawful or except that you say they disobeyed the policeman.

Mr. Sylvan A. Garfunkel: They were not charged with doing something unlawful Your Honor.

They were charged with going on the playgrounds for the purpose of disturbing the peace.

Justice Hugo L. Black: Disturbing the peace or there were some other unlawful acts?

Mr. Sylvan A. Garfunkel: No, sir.

No.

Justice Hugo L. Black: Alright, disturbing the peace.

Mr. Sylvan A. Garfunkel: Disturbing the peace, there was nothing --

Justice Hugo L. Black: Did he charge them on what would amount to disturbance of the peace?

Mr. Sylvan A. Garfunkel: Not in detail, Your Honor.

Justice Hugo L. Black: Did he charge him at all?

Mr. Sylvan A. Garfunkel: He charged them, and I'll have to get his charge sir.

Justice Hugo L. Black: But it wouldn't disturb the peace.

What if they were there not violating any rules and not violating any rule as he said it?

Mr. Sylvan A. Garfunkel: Not generic.

This is the key and this is the statute of the way we were arguing it to the Court.

The statute becomes violated not by disturbing the peace but by two or more people assembling for the purpose of disturbing the peace.

Not of the purpose that the peace has to be disturbed but assembling --

Justice Hugo L. Black: But if they weren't disturbed, they wouldn't assemble for the purpose of disturbing the peace, wouldn't they, if they assemble to do first of all, a lawful act on the park?

Mr. Sylvan A. Garfunkel: But it became unlawful when they refuse to obey the police officer's request to leave.

Justice Hugo L. Black: But then they finally get back to the fact.

You're saying that under your Georgia statute, the policeman has complete power and one of their contentions was I believe, that has vested them with arbitrary power.

He has complete power to determine whether they've already done something for the purpose of violating the peace.

Mr. Sylvan A. Garfunkel: So then it's up to the jury to so determine and in fact have to find --

Justice Hugo L. Black: If they have tried, what would be then?

Mr. Sylvan A. Garfunkel: If they thought that the policeman was correct.

Now the -- that question has not been raised very much but the recent case that is very interesting from the Court of Appeals in New York, People versus Galvin.

And in that case, one of those -- one of the million cases, Mr. (Inaudible) Galvin was a member of the bar of the State of New York and the reference is made under my brief.

I won't cite the citation.

And he had come out of arrest and he was standing on the sidewalk talking to some friends of his.

And a policeman came along and said, “Would you please move.”

And he says, “I don't have to move.

I'm on the public sidewalk.”

And the policeman arrested him for somewhat -- under somewhat the most statute in the State of New York.

This -- he was convicted.

This went all the way up to the Court of Appeals in New York and they were faced with somewhat to some of them because there, he says, he was probably on the sidewalk.

And the Court said that the policeman had a right to believe that they might block the sidewalk.

And as the policeman felt in his mind and he may bona fide made a request.

In his mind that there was at that chance, that refusing to obey the police officer at that time could then may very well be -- was a disturbance of the police peace for which the jury or the judge sitting as a jury could convict him.

And they affirmed his conviction.

And the record showed that there was no disorder that was all talked very friendly, there were no harsh words or anything else.

It was just a request made by a policeman.

Justice Hugo L. Black: I understand though.

I understand your citation of that case as a justification of what was done for that and maybe the way the jury was charged, that's what I think, the only thing submitted to them.

Did the policeman ordered him to go away and did they stay?

I see no other issues submitted except that and that case to which you refer maybe wholly irrelevant on that.

Mr. Sylvan A. Garfunkel: And that then we have the further question of the Supreme Court of Georgia construing its statute in which I think this Court held in Garner versus Louisiana, that it was up to the Court, Highest Court, to construe the meaning of its own statute and when it was violated.

The question that I see would be presented to this Court would be two; first, was the statute used as a veil to preserve segregation?

And second, was there any evidence whatsoever to justify the police officer to believe that the breach of the peace was eminent or might happen to cause him to ask and to leave?

Was he bona fide in asking them to leave?

Justice Arthur J. Goldberg: What the general -- what in this record would leave the police officer to believe that?

Mr. Sylvan A. Garfunkel: That's right.

Yes sir.

I'm glad, Mr. Justice Goldberg, you brought that up because there are several issues.

First that these children were there, whether they were coming and they expected them there, he testified, Officer Hillers testified and that is on the record or rather Officer Thompson, I believe --

Justice Arthur J. Goldberg: 41

Mr. Sylvan A. Garfunkel: Right.

Justice Arthur J. Goldberg: He said he made this arrest around two o'clock and the schools let at around 2:30 and it would have been at least 30 minutes before any children would have been in this particular area.

Mr. Sylvan A. Garfunkel: That is true.

But Your Honor at what point was it being necessary for him to tell them to leave this playground.

Under the rules of the playground commission, the playground was available for these school children all during the day.

Justice Arthur J. Goldberg: But that isn't what the superintendent said.

Precisely you read part of it, did he not also say on page 48 that, “That basketball court was not scheduled.

It would be compatible with our program for them to use it and we would not mind them using it.”

Then he further say on page 47 that, “I don't know whether or not we had a plan program arranged for the day that these arrests were made.”

Mr. Sylvan A. Garfunkel: But early above that Your Honor he said, when he was -- this was an answer to a hypothetical question.

And that this is the total answer.

If your plan program did not have the 23rd of January, 1961, set aside for any particular activity, would it have been permissible to use this basketball court in Daffin Park in the absence of children?

And his answer said, “Well, I can't very well answer that question because you have several questions in one.

First, I would like to say that normally we would not schedule anything for that time of the day because of the school's using the total area there,” so that at that time, it was reserved according to the first part of his testimony.

Then in going to try and help the -- answering this hypothetical question, he said, “If we had not had something scheduled at that time of the day, then we would have granted information.”

But at that time the total area was reserved for the school children.

Now --

Chief Justice Earl Warren: Who's -- whose witness was this man?

Mr. Sylvan A. Garfunkel: This man was the State's witness when the defense started to develop the fact that they were arrested solely because of the fact that they were Negroes.

Chief Justice Earl Warren: Aren't you bound by his cross-examination?

Mr. Sylvan A. Garfunkel: Yes, sir.

But this -- this was the all answer.

This -- to what Mr. Justice Goldberg asked me was.

He said don't give me the quote of the last part.

And this was the first part of the answer to the same question that had been asked.

In other words, this answer goes on for almost half of page.

And he said at the first that, “at that time of day, this playground was reserved for the schools.”

Then in going along further, they said, “You have to ask him several questions in one if they have not been reserved.”

He said, “If all that basketball court was not scheduled, it would be compatible with our program for them to use it, and we would not mind them using it.

And if there was a permanent issue, there would be no objections as to race, creed, or color.

In other words, that is the last part of the answer.

Chief Justice Earl Warren: And then -- and then he also said that he didn't know whether it was schedule -- anything scheduled or not, didn't he?

Mr. Sylvan A. Garfunkel: He says, “We never know when they are coming in one part.

That is the parochial schools use it during recess and lunch breaks and also for sport.

As also the Lutherans schools and the public schools bring their students out there by bus in various times during school hours all day long.

We never know when they are coming and they use Kent Park the same way.”

And I might add now Kent Park is a park area in the colored section.

And I think what the interpretation of his answer is that he personally doesn't know if the schools are going to bring somebody around there at ten o'clock, at twelve o'clock, or one o'clock.

But as far as the playground as far as the playground department is concerned, those playgrounds are exclusively for the use of the schools during those hours or whenever they want to use it.

Justice Arthur J. Goldberg: But this was not invalid in any regulation known to anybody, is that correct general?

Because as I read his testimony on page 46, he says there is no regulation for playing on a court when it is not in use and there is no one around.

Mr. Sylvan A. Garfunkel: That is correct sir.

There was no printed regulation and there was no -- and what we state this, Mr. Justice Goldberg, that the going or merely going upon the park grounds and playing the basketball is not criminal.

And if they had walked up, the policeman had walked up to him and said, “I am arresting you.

You are -- and we'll let you argue with the misdemeanor” is a basic unfairness in such a statute because obviously no one would know that he has violated or was violating something.

But it becomes -- the fairness in this is that it does not become a misdemeanor until he is asked to leave and refuses to leave and asked to leave by a peace officer who is a policeman wearing a -- a police officer wearing a uniform.

Justice Arthur J. Goldberg: So it's your contention that substance is, there being no regulation against the use when it is not being used by anyone else.

There being no children evident in the vicinities since they were not out of school until 2:30.

Then it becomes a disturbance of the peace, that the group of men are there playing using an empty court, it becomes a disturbance of the peace if you do not obey a police officer or an officer when he says, “While they're here legally and properly and not against any regulation, I tell you now to move on.”

Is that disturbance of the peace?

Mr. Sylvan A. Garfunkel: The police officer didn't actually tell them that while you are here legally and properly --

Justice Arthur J. Goldberg: But I mean the --

Mr. Sylvan A. Garfunkel: Because the --

Justice Arthur J. Goldberg: -- the superintendent said that they were there illegally and --

Mr. Sylvan A. Garfunkel: No, I think the superintendent said if they hadn't been scheduled but at that time they just played there, they would not have been allowed to play.

Justice Arthur J. Goldberg: But the -- didn't we both agree a moment ago that there is no regulation for playing on a court when it is not in use and there's no one around?

Mr. Sylvan A. Garfunkel: Well, there's no printed regulation but there's a regulation of the park.

I mean that's the way they regulate the parks.

If he want -- we will put it if that's the way the park superintendent regulates the park.

Now, if you -- if they had printed, if you're saying are there printed regulations and posted and all of that, I would say, no, but there is this regulation in the sense that that is the way the parks are run.

Justice Arthur J. Goldberg: But here then would you define what constituted the disturbance of the peace under these circumstances.

Mr. Sylvan A. Garfunkel: Yes, sir.

The disturbance of the peace out of these circumstances, Your Honor, was that they were had gone there, we feel, and to think the record shows because they went there that to what they thought was to test segregation.

The police officer said, “I --

Justice Arthur J. Goldberg: Is that illegal?

Mr. Sylvan A. Garfunkel: No, sir.

It's not illegal.

But the police officer said on other occasions, “I have seen colored children in Daffin Park and I have not arrested them because I -- but in these circumstances I did.”

Now, I think what we are faced with is, the police officer was exercising a question of judgment.

What did he -- did he bonafidely feel that there could be a disturbance of the peace.

Now, not that they were disturbing the peace but by their actions caused others to disturb the peace and --

Justice John M. Harlan: Mr. Garfunkel, could I ask this question?

Mr. Sylvan A. Garfunkel: Yes, sir.

Justice John M. Harlan: The basis of the statute you mean to say should be taken mainly that the defense is this being a proper question for his argument, what do you do with the statement that the -- it seems to be understood that the arresting officer so said that one consideration would let the command whether this man was a (Inaudible).

Mr. Sylvan A. Garfunkel: Yes, sir.

I --

Justice John M. Harlan: Is that consideration?

Mr. Sylvan A. Garfunkel: That is the -- if that was the overriding consideration for the men's arrest, I would say that this case should be reversed.

Justice John M. Harlan: And you don't get to any question of the sufficiency of the evidence or anything absolutely --

Mr. Sylvan A. Garfunkel: If I'm going -- the question as to --

Justice John M. Harlan: I wish you'd deal with that point.

Mr. Sylvan A. Garfunkel: Yes, sir.

The question present wouldn't in the -- by in the briefs.

The question presented by the petitioner and the way the question is presented by the respondent expressly states that because in -- in our brief, we have put the question in this manner and we feel that the evidence shows it.

Whether the conviction of petitions for unlawful assembly denied them due process of law under the Fourteenth Amendment when they were convicted on evidence which showed that they were grown Negro men, who took over a playground in a predominantly white neighborhood, at the time when the playground was reserved for and was to be used by school children, and they refused to leave when requested by the police.

Now, the reason he said he asked them to leave was because he expected the children.

Now, they say that children -- he said he knew the children will be there by 2:30.

He knew they were going to be there by 2:30.

They could have come earlier.

He asked them to leave.

Now, here we are in a predominantly white area --

Justice Hugo L. Black: What does that have to do that?

Mr. Sylvan A. Garfunkel: Your Honor, because they asked the question of --

Justice Hugo L. Black: (Voice Overlap) a classification of this.

Mr. Sylvan A. Garfunkel: Yes.

He said that they asked on cross-examination.

It was one of the reasons you arrested them because they were Negro.

And he said partly, one of the reasons was but the overriding reason that --

Justice Hugo L. Black: But -- why should you include in your question then unless it was based on color, the base that it was in a predominantly white neighborhood?

Mr. Sylvan A. Garfunkel: Because the evidence showed it was in a predominantly white area --

Justice Hugo L. Black: Alright.

Mr. Sylvan A. Garfunkel: Because it was part of the thing that he was felt -- he felt --

Justice Hugo L. Black: If you don't get -- it shows here that your law is alright if you provide that their parks are located in a predominantly white neighborhood, people can be excluded on that kind of their color?

Mr. Sylvan A. Garfunkel: No, sir.

Justice Hugo L. Black: But what does that have to do --

Mr. Sylvan A. Garfunkel: We would -- because the question was asked the police officer.

And we said -- and that was on cross-examination.

If this had been white adult man, they would still have been asked to leave.

But the fact that they were Negro added to the fear of the police officer, that here they were on a playground at that time was reserved for these children.

And the park superintendent says, “We keep them separate as to groups because it's not good park policy to have grown people on a playground which is reserved for children.”

He says, “We don't want it.”

And that is in the record.

Now, here with these people in -- who if they had been adult white men would still have been requested to leave?

But the question on cross-examination was asked said, “Well what's part of the reason, was it read this as partly.”

Well of course in the policeman's eyes, it's a fact I can't deny it, that the fact that they had been therefore to -- were asked to leave that there was a further chance of a disturbance of the peace because of the fact that they were Negro.

That was merely -- that is not the overriding consideration.

Justice Hugo L. Black: What is -- do you think that would have been efficient ground to exclude them?

Mr. Sylvan A. Garfunkel: Which one sir?

Justice Hugo L. Black: The one that they were colored and just part within a predominant --

Mr. Sylvan A. Garfunkel: No, sir.

No, sir.

That would not have been sufficient and if that was the overriding reason, I would say this case should be reversed.

But the overriding reason had not -- color had nothing to do.

Justice Hugo L. Black: Suppose that's one of the reasons to say --

Mr. Sylvan A. Garfunkel: That now -- that is --

Justice Hugo L. Black: Does that make any difference?

Mr. Sylvan A. Garfunkel: We feel that if the fact that one of the reasons that the police officer says, if there is a --

Justice Hugo L. Black: (Voice Overlap)

Mr. Sylvan A. Garfunkel: Yes.

If there is a legitimate reason, reverse it.

If there is a legitimate reason for the police officer to ask them to leave without regard to color, the fact that color might incidentally be part should not say that you would not be guilty.

For instance, suppose white adult men went on the playground and they ask him to leave and this case came up on the record of the same type that they went there and played the same way.

Then, it would be fact that these people were white not would that mean that they should be acquitted when colored in the same category would be -- would be convicted with color from the same category would be convicted -- would be acquitted.

Chief Justice Earl Warren: If these people were -- had been white people, would you have put in your question as you read it to us the fact that this was in a predominantly white neighbor?

Mr. Sylvan A. Garfunkel: No, sir.

I would not.

The only reason I mention that was because in the record it shows on cross-examination to the -- in our answer to one of the defense attorney's lawyer -- lawyers that -- one of the defense attorneys, was one of the reasons you asked that you arrested them because they were Negro or why -- “did you arrest them because they were Negro?”

And in response to that question, he said, “Yes”, and that was what we put on the question because it was -- it had been -- it had been put into the case by the defense counsel.

Chief Justice Earl Warren: Why do you say that the predominant reason for the arrest was other than -- than because they were Negroes?

Mr. Sylvan A. Garfunkel: Because the facts that the State proved showed that colored children had played in that park on other times and never been arrested.

The te -- undisputed testimony of the park superintendent was that there was -- that they had a right to play and it was legal.

That the park superintendent was aware of the fact that colored children had played in that park and not been arrested.

The arresting officer himself testified that he had seen colored children playing in that park and they had not been arrested.

So that in this instance, I would now say one swallow wouldn't make a summer.

One arrest of these people does not show quite a program of such segregation but there's this feeling that this would be a legitimate area of inquiry by this Court and by any of the high appellant courts.

We, the State showed in its -- by putting this that this was not the reason because if it were the reason -- if this were the true reason, then it will also have been applicable to all of the other instances and they should have been arrested to show that.

Chief Justice Earl Warren: Then to the extent that -- that he was motivated by the fact that they were Negroes, the arrest would be illegal.

Mr. Sylvan A. Garfunkel: If that was the sole -- if that was the proper overriding reason.

By that I mean if that was his motivating reason.

Chief Justice Earl Warren: Now you -- you say the other is the overriding reason.

I understood Mr. Nabrit to say that one of these officers testified that they didn't know anything about the rules, they didn't know had any rules and they know what they were, and that he didn't, in effect, that he didn't arrest them because of the violation of the rules.

Mr. Sylvan A. Garfunkel: He arrested them.

He said because in --

Chief Justice Earl Warren: Now was there -- is that true?

Mr. Sylvan A. Garfunkel: That is correct in this respect that he didn't know about the rules of the park but he did know of the facts that the children would be there.

He knew that everyday, he arrives this street and he knew that everyday these children came out and played in the park during recess as he put it which was probably during their physical education or --

Chief Justice Earl Warren: But he didn't know there were any rules against anybody being there.

Mr. Sylvan A. Garfunkel: No, sir.

He knew that that park was reserved for those children.

Chief Justice Earl Warren: Where did he say it?

Mr. Sylvan A. Garfunkel: He says that that “I knew that within half an hour in the --

Chief Justice Earl Warren: Within --

Mr. Sylvan A. Garfunkel: Officer Hillers or Officer Thompson.

“Under ordinary circumstances, I would not arrest boys playing basketball on a public park.

I made this arrest around 2:00 and the school is that around 2:30 and I would have been at least 30 minutes before the children.”

Well, that was in cross-examination but the children from the schools -- it's page 40, middle of the page, “the children from the schools would have been out there shortly after that.

The purpose of asking them to leave was to keep down trouble which looked to me like it might start”, and up to top.

“There's a school nearby this basketball court.

It is located at Washington Avenue in Bee Road, I mean, at Washington Avenue in Waters which is just across the street.

There's another school on 44th Street.

There are two schools nearby.

I believe that they are both Drama Schools.

I patrol that area and the children from these schools play there.

They come there everyday, I believe.

I believe they come there after -- afternoon when they get out of school and I believe they come there during recess.”

Chief Justice Earl Warren: But he also says, “I don't have any knowledge to myself, if any certain age group is limited to any particular basketball court, I don't know the rules of the City Recreation District.

Mr. Sylvan A. Garfunkel: That's right.

That's right, sir.

Chief Justice Earl Warren: And still he -- he arrested them presumably for a violation of those rules plus the fact that they were Negroes.

Mr. Sylvan A. Garfunkel: No.

He arrested them Your Honor for them failing to leave when he made this request.

Chief Justice Earl Warren: Well, but if they weren't doing anything illegal, if he had no knowledge of them violating any rules, then he have the right as a police officer just to move them along.

Mr. Sylvan A. Garfunkel: That is the -- well that is the main issue as we see in this case.

Chief Justice Earl Warren: Well, does he have that right as a police officer?

Mr. Sylvan A. Garfunkel: We feel as a police officer, he has the right to ascertain from the facts that he can tell from what's happening to determine whether he should make a request to leave.

That it's a question of judgment that there might be a question whether if you or I or someone else was there whether we think that we should have asked them to leave.

But when the police officer acting on the best available evidence the way he observes it, makes this request to leave.

That if there is any evidence whatsoever to sustain him to show that this was a bona fide request that he was trying to keep down good order in the parks.

That then that should be obeyed and that he would fairly to obey it, you're doing it as your peril where you might be right and you might be wrong.

In other words, you say, “I did leave and I was right” just like some types of answers, go ahead and violate that law, it's unconstitutional.

You violated at your peril and I think that when --

Chief Justice Earl Warren: That's true.

What if -- if these people were doing nothing out of the way which he -- which he said.

He said that they were just playing -- they're just playing there and doing nothing else and if that is true.

And if it's true that he had no knowledge of the violation of any rules of the park, what is there in this case to indicate that these people were doing something unlawful for which they could be moved along by a police officer without an order?

Mr. Sylvan A. Garfunkel: We were not charging them we're doing something unlawful, Your Honor.

We were charging them with going upon the parks for the purpose of disturbing the peace and in that --

Chief Justice Earl Warren: It was a public park.

Mr. Sylvan A. Garfunkel: That is correct, sir.

Chief Justice Earl Warren: Didn't they -- you admitted that they had the right to go there?

Mr. Sylvan A. Garfunkel: The -- they have to --

Chief Justice Earl Warren: Didn't you?

I thought your opening statement was that they had the right to go to that park.

Mr. Sylvan A. Garfunkel: We said they have -- if the -- if this arrest was used for the purpose of preserving segregation in the park, we say that it should be reversed.

We further state --

Chief Justice Earl Warren: Well, you mean that -- that although, you admit that that you don't admit that a Negro had a right to go on that court?

Mr. Sylvan A. Garfunkel: No.

I -- the Negro had a right to go on that court but not for the purpose which they went on.

In other words, they went on to see if what will happen.

They went on to see if they can play.

Chief Justice Earl Warren: Well, I thought --

Mr. Sylvan A. Garfunkel: And as they -- at the time of day, what is that sir?

Chief Justice Earl Warren: I thought you also told us that you made no point of that, that they had a right to go there because it was legal under the rules of the park where Negroes or anybody could go in that park.

Mr. Sylvan A. Garfunkel: No, sir.

I said that -- no, sir.

I said that was the -- they have -- it was -- I admit that if there's no -- there's no park segregation but you do not have a right to go on to the park when the park is reserved for others and you're requested to leave.

And we see the purpose is when they went on to this playground for the purpose of disturbing the peace not by their actions but by the reaction that they could get from the people around there.

That if they had actually gone upon that park to play basketball, they would have acted in a different manner.

That these were grown man, 23 to 32 years of age and they went on with the purpose of seeing not of their actions but the reaction and part of the -- part of the disturbance of the peace as we understand in our brief.

In our brief to the Supreme Court of Georgia, we have dealt very extensively with that and that was made a part of this record.

And part --

Chief Justice Earl Warren: But Mr. Schneider, I -- I must come back to this -- this statement.

“I observed the conduct of these people when they were on the basketball court and they were doing nothing besides playing basketball.

They were just normally playing basketball and none of the children from the schools were there at that particular time.”

Now, what was it -- are you going to tell us that -- that because someone else driving around that park might get excited and might do something unconstitutional that these people can be put in jail --

Mr. Sylvan A. Garfunkel: But these, that --

Chief Justice Earl Warren: -- for not moving along and --

Mr. Sylvan A. Garfunkel: The unconstitutionality was not because at this time, this park was a well-known public playground that people riding around and we presume new that those children were coming because they'd come there everyday during school hours, and now here were these men who had come on this park at this time when these children were generally there and they took it over.

And we say that this was a reaction --

Chief Justice Earl Warren: They took it over?

Mr. Sylvan A. Garfunkel: Well, they took over the playground.

There was nobody else.

The play -- certainly the school teachers or the children would not want to go on a playground.

They would not -- not -- might want to go there but you -- you would not want them to go on the playground.

Chief Justice Earl Warren: Is that all there was on the playground just a basketball park?

Mr. Sylvan A. Garfunkel: No, there's the -- the record does not show it but I can state that there's swing and slides, there's a playground area.

That's a very --

Chief Justice Earl Warren: -- rather large park.

Mr. Sylvan A. Garfunkel: It's a very large -- it's a very -- the -- it's a large park but the playground area is small.

The playground area is at one end of the park.

The rest of the park is devoted for other purposes.

And the playground area is immediately across the street from these schools.

Chief Justice Earl Warren: Very well.

Justice Hugo L. Black: Suppose you'd had a statute enjoined stating precisely what you've said here.

There was the overall consideration for making it illegal for these people to stay there.

In other words, you had a statute which said that if Georgia wants to -- wants to regulate the park and regulates it this way, where men go on the park, played and they are colored, and they are there the time when they should not be there, that's not what you've argued here as to what had happened, the -- they shall be committing an offense.

Mr. Sylvan A. Garfunkel: No, sir.

Justice Hugo L. Black: Or they can be convicted of a defense.

Mr. Sylvan A. Garfunkel: No.

Such a statute would certainly be unconstitutional because of the fact that it was -- part of it was --

Justice Hugo L. Black: The Court had embraced it.

Mr. Sylvan A. Garfunkel: The Court embraced the fact that they were colored.

Justice Hugo L. Black: Well, what was the reasons that this man gave for excluding these men for not one being it was color and if we didn't have to try to determine which was the overriding ground for the statute, if it was a statute, why would we have to decide when it's in this -- brought up in this neighborhood statute.

Mr. Sylvan A. Garfunkel: It -- the statute -- the question of the colored with what as if we're going into what is in the mind of the police officer as to why he asked them to leave.

He said --

Justice Hugo L. Black: He went in good and said he arrest them because they were colored.

Mr. Sylvan A. Garfunkel: No.

He said first originally, “I arrested them because I was afraid of what might happen.

Children were expected on the playground within a certain -- by 2:30.”

Justice Hugo L. Black: And you also use the word he arrested them because they're colored, weren't they?

Mr. Sylvan A. Garfunkel: The police officer on cross-examination.

Justice Hugo L. Black: But whatever it was --

Mr. Sylvan A. Garfunkel: Yes.

Came back on cross-examination and said, i was one of the reasons or it was the reason that you arrested him because they were colored, he said, “well part”.

But that was not the reason that he yield.

Justice Hugo L. Black: I suppose that Georgia statute said partly because we don't -- do not want the people to play --

Mr. Sylvan A. Garfunkel: Statute would be unconstitutional.

Justice Hugo L. Black: It would be unconstitutional.

Mr. Sylvan A. Garfunkel: That's right.

Justice Hugo L. Black: Well, why wouldn't it be it if they try to do the same thing with other statutes?

Mr. Sylvan A. Garfunkel: But then the State of Georgia is not that is why we went into the other --

Justice Hugo L. Black: But you have to extend --

Mr. Sylvan A. Garfunkel: Yes.

That is why we -- yes.

Yes.

But I'm talking about that that is though in the record honestly, Your Honor.

So that is why we went in to the other issues to show that under similar circumstances where there were children who were colored, they were not asked to leave or not arrested.

That they -- because of the fact that to show that the reason for the arrest was not override -- primarily because they were colored, the reason for the arrest was because they were grown men.

If they had been children and they would not have been arrested.

Justice Hugo L. Black: Of course, if this were to be used as a device for the purpose of keeping colored men off, you'd agree that you can't do it.

Mr. Sylvan A. Garfunkel: That is exactly what I said at the beginning of my argument.

Justice Hugo L. Black: Any more than you could disfranchise people by the grand --

Mr. Sylvan A. Garfunkel: That is exactly what I've said so that we were trying to show to the Court and to the jury by the testimony of the police officer that in other circumstances, colored children had been allowed to play on this playground, had not been arrested.

So that this would differentiate and show that color was not and at the same police officer said that he had seen colored children playing out on this playground and had not arrested and ask them to move.

But he said, “But this was different.

These were grown men and this playground at that time was designed, was set aside, and I knew the children were coming.”

Justice Hugo L. Black: Well suppose they only applied it to grown men when they were colored.

He said, “These were colored and they were grown men.”

Mr. Sylvan A. Garfunkel: Then I think if the defense would have shown that that had been abused for a purpose that they were only applied to colored grown men, I think it would have been a valid defense and they should have been acquitted.

I would like to call the Court's attention to the fact that no evidence was introduced by the defendants.

The only witnesses were witnesses by the State.

Justice Hugo L. Black: Why did they need to introduce and show the reason for the arrest when the man who made the arrest gave the reason?

Mr. Sylvan A. Garfunkel: Well, you go to the fact that, Your Honor, puts the question to me if they just arrested -- didn't arrest any white people or white men.

I might say that nobody has been arrested, no colored man has been arrested, or no colored children had been arrested under this statute, and we have had no further difficulty on this question.

This is the sole arrest that was made.

Colored children had played on the parks and grown colored men had played on the parks during the afternoons after school hours.

I don't know if they play in Daffin Park so much because it's -- as I say, it's further away from the colored area, but they do play quite extensively in park extension which is in the middle of the mixed area.

And every afternoon, they're out there playing.

Justice Hugo L. Black: In your view that if we find -- if we will have to find whether this was the overriding purpose and this is what you call the overriding purpose, Georgia has the right to do it.

Mr. Sylvan A. Garfunkel: I would say that the jury had a right to find the man guilty because of the fact that he was -- the overriding purpose was not -- whether the statute was not being used as a -- as a cloak to preserve segregation and it was not being used as a cloak to serve -- to preserve segregation, then we feel that it should be affirmed.

Justice Hugo L. Black: What was the actual reason the officer gave to these petitioners?

Mr. Sylvan A. Garfunkel: The petitioners did not actually ask it.

The petitioners -- he went up to the petitioners and said, asked them to leave but they said, “By what authority do you get here”, in a very sarcastic manner.

And that was all.

They did not ask why.

I think if they had asked why they would be entitled to be given a reason.

But the evidence of the officer says, he said, “By what reason?”

he said, “Well I -- by what authority” and then he said, “Well, I'm going to have to ask you to leave and if you don't leave,” he says, and they just piled into his police car that he had -- that there were seven of them, he had to ask them to get out and wait until the cruiser because it couldn't carry them all.

He said they look like -- the testimony of the officer said, “They look like they were waiting to be arrested.”

Chief Justice Earl Warren: Well, has somebody asked you to get out of the public park whether he's a police officer or not?

What would be your question?

Wouldn't you be likely to ask him for what reason or by what authority he was ordering you off?

Mr. Sylvan A. Garfunkel: I think that would be by what authority, but he said he put it in the way of what authority because the police -- he put it -- he did not -- he put it by what authority but he did not ask the question why are you asking me to leave or why are you asking us to leave?

They were merely -- supposedly we said they're ready to be arrested the way from the -- the way the police officer said.

They went on that park ground.

They played when a police officer came up and ask them to leave.

And he says if they don't leave, they said, “By what authority?”

and then he says, “I'm going to have to arrest you” and says, they just piled right in there and that is in the record.

The police officer it looked like to him.

Chief Justice Earl Warren: The fact that they went along with him peaceably after he arrested them --

Mr. Sylvan A. Garfunkel: No, not a question of --

Chief Justice Earl Warren: -- could be taken as evidence against the --

Mr. Sylvan A. Garfunkel: No.

Not a question that they went along peaceably, Your Honor.

But that they practically anticipated it.

That's the point I'm getting at.

Chief Justice Earl Warren: Very well.

Justice Hugo L. Black: Does your state permit arrests by the policeman where a man gets peacefully out of place without getting him arrested?

Mr. Sylvan A. Garfunkel: Our state -- I think the police officers in uniform and the police officer has a right to arrest a man for -- for committing an offense in his presence.

Of course, this became an offense when he asked to leave and they didn't.

Justice Hugo L. Black: Without telling him why?

Mr. Sylvan A. Garfunkel: It doesn't state whether you have to tell the man why at that time.

I mean, it was perfectly obvious what was going on.

I think if you were to be the man and say, “I'm going to arrest you”, the man will say, “Well what's my arrest?”

He would tell him what I think the normal person would ordinarily say “Why are you arresting?”

I think if I were some policeman say, he was going to arrest me the first question I'd ask him was why and I wouldn't probably say by what authority because I think this authority is uniform.

Justice Hugo L. Black: He might choose other words.

Mr. Sylvan A. Garfunkel: Yes.

But I think authority means --

Justice Hugo L. Black: Now, let's suppose one of the first basic rules to that arrest here that you arrest a man, you got to tell him why, by what authority you got, wouldn't he have the right to resist it if he didn't?

Mr. Sylvan A. Garfunkel: If he is questioning the arrest, if he is questioning and suppose, and I'm talking about the questioning the reasons for the arrest.

Now, if a man in -- if I were in plain clothes and I were a detective and I said to a man, “You're under arrest.”

He might want to know by what authority that I have to arrest him.

But he was a man in his uniform and the record shows that he was in his own uniform as a police officer.

Now he says, “I'm going to have to ask you to leave.”

And they say, “By what authority do you come out here to tell us such.”

Then he said, if he has said, “Why” and the police officer said, “Well, there are going to be children out here on this playground in a few minutes, and we're asking you to leave to let them come out here.”

I think it would have been a legitimate question for why and I think the policeman ultimate them a duty to tell them why.

But they didn't go that far.

As soon as he said, “I'm going to have to arrest you”, they immediately piled into the car.

And that was why he said that they -- they anticipated all of these.

Justice Hugo L. Black: His answer didn't encourage them to think that he was anxious to let them know why he was arresting them.

Mr. Sylvan A. Garfunkel: I think Your Honor that the record will show that most of the - the record shows most of the sarcasm or all the sarcasm was on the part of the defendants.

There's no record and thing to show that the policeman did not act in a polite or courteous manner to these men.

Justice Hugo L. Black: It's in there that they didn't act politely?

Mr. Sylvan A. Garfunkel: Yes, sir.

Justice Hugo L. Black: When?

Mr. Sylvan A. Garfunkel: He says that that “One of them sarcastically asked me.”

Justice Hugo L. Black: Sarcastically.

Mr. Sylvan A. Garfunkel: Yes, sir.

Justice Hugo L. Black: You mean by the inflection of the voice?

Mr. Sylvan A. Garfunkel: I don't know exactly what I mean.

All I know is that that's what the witness testified to Your Honor.

On that point, that the witness was given.

It's his opinion.

One of them said sarcastically.

Chief Justice Earl Warren: But later he said they were in there peacefully, just playing basketball and doing nothing else, and it would be somewhat irritating wouldn't it to be thrown off of the --

Mr. Sylvan A. Garfunkel: But Your Honor --

Chief Justice Earl Warren: -- basketball court or out of the park.

Mr. Sylvan A. Garfunkel: -- let's see, it is the reaction that hurts that the -- to come to such order.

It would hurt me a lot of things to be thrown out of anyway too.

But it's the reaction that's call.

For instance, let's use another example because I see it's very hard to realize that what we are saying is not their actions but it's the reaction that arises from their actions.

Let us take this.

I'm Jewish.

I'm a member of the Orthodox faith.

Now, there's a big difference between the Conservatives and the Orthodox.

The main difference isn't seen mixed seating -- in Orthodox you have separate seating and Conservative you mixed seating.

And I'll just say we have an Orthodox synagogue and they're having services on Saturday and a member of the synagogue is one of the things they should have mixed seating.

So on a Saturday morning, he comes dressed with his wife and they go down and sit in the middle of the synagogue peaceably without doing anything, asking for -- for prayer here, and want to engage in prayers in there.

They're not doing anything unlawful.

They're not disturbing the peace per se.

But I believe that you would have a tremendous reaction in a truly Orthodox synagogue by these people so sitting in the section reserved exclusively for men.

Chief Justice Earl Warren: But do you think if a man -- do you think if an Irish policeman came in there and said, “Get out of here.”

Mr. Sylvan A. Garfunkel: I think --

Chief Justice Earl Warren: Do you think that they wouldn't have a right to say, “By what authority do you do this?”

Mr. Sylvan A. Garfunkel: I think if they asked, “By what authority”, well I think -- by what authority they ask to come in, and I think if he said, “By the authority of my uniform”, I think they would be required to go.

Justice William O. Douglas: But you've overlooked one other --

Mr. Sylvan A. Garfunkel: Yes, sir.

Justice William O. Douglas: -- crucial fact here is that the State has sent somebody to prison or fine somebody --

Mr. Sylvan A. Garfunkel: Fine somebody.

The fines where you would notice were $100 well, six of them -- five of them were $125 for the six and it was a reason for that.

I mean there was no intent to -- to make a big case.

It was just a question of whether they were -- had actually violated the --

Chief Justice Earl Warren: But if they don't have $100, they go to jail?

Mr. Sylvan A. Garfunkel: I think -- if they don't the $100, they would have to go to jail, wouldn't they?

Thank you.

Chief Justice Earl Warren: Assistant General, very well.

Mr. Nabrit.

Rebuttal of James M. Nabrit, Iii

Mr. James M. Nabrit, Iii: May it please the Court.

These were the first Negroes to play on this basketball court.

There was some evidence that the young children had fished in Daffin Park.

But all the witnesses agreed these were the first -- no colored children had played basketball here.

As I understand the State's argument it is that Negro is welcome in this park and has the right to play there, but he doesn't have a right to come there for the purpose of finding out if there so.

In any event, this is a segregated park to me where the only Negroes -- segregated basketball court where they only Negroes who go there get arrested.

People against Galvin, a New York case was mentioned and that case involved no constitutional issue state or federal.

This is direction of a state law.

Now, this argument that com -- the State makes that there was a purpose to commit a breach of the peace is an intent to prove a state of mind.

It's an attempt to prove a state of mind in a case where there's no admission of such a purpose and where there are no circumstances from which you could infer such a purpose.

The circumstances of the State points to are, one, the fact that these are Negroes in a white neighborhood, and two, a claim that this playground was reserved.

Now, if the -- if you accept the State's case as a strong case that maybe somehow this area was reserved for children, you still can't get an inference of an intent to commit a crime without making an unconstitutionally impermissible use of the statute to permit someone to be punished where he didn't know.

They had no opportunity to know of this rule, that he was breaking the rule.

There were no signs around that this was reserved for children.

This -- there's nothing in this case, in Mr. Hagan's testimony remotely rising through the dignity of a rule or regulation.

The best you can get is that he had a personal preference, department preference unexpressed to anyone until the trial for children to use the basketball court.

And there are some -- in his testimony about of it being reserved for the use of the schools he says they are more or less left available for them.

But there's no reason I think that the petitioners had any opportunity to know this.

So the statute would be doubly vague.

Indeed, this is very reminiscent of the problem in Niemotko against Maryland where the petitioners before this Court were convicted of disorderly conduct for holding a religious meeting in a public park where the -- there was no -- and the only claim of disorderly conduct was that they were there without a permit and there was no ordinance requiring that there'd be a permit, if -- and indeed no standards for the grant of a permit but the facts are somewhat analogous.

Now, there is a contention that because children were going to be at this park in half an hour, perhaps this is a circumstance from which you can infer a breach of the peace.

There's no evidence to indicate that the petitioners knew the children would be there in a half an hour.

When they asked the officer by what authority -- I think I will read that testimony.

One of the -- I don't know which one it was, this is Thompson testifying.

Justice John M. Harlan: What page?

Mr. James M. Nabrit, Iii: Middle of page 40.

He says, “One of the -- I don't know which one it was, came up and asked me, who gave me orders to come out there and by what authority I came out there.

And I told them that I didn't need any orders to come out there.”

You can translate that testimony about you can imagine what that officer really said.

The -- but his own version of it is that he didn't -- he told that this -- he didn't need any orders to come out there and order them off.

Well the point of this is that the --

Justice Arthur J. Goldberg: Imagine what the officer said, can we also imagine that these fellows came out in the park to test the segregation questioned in the park and prepared to take the consequences of that if there might be some trouble if they did?

Would that be a fair inference from this record?

Mr. James M. Nabrit, Iii: I -- I think my argument is the same whichever way you look at that, Your Honor.

I think that we can assume that a Negro going on to a customarily white basketball court in Savannah, Georgia is engaging in nonconformance conduct --

Justice Arthur J. Goldberg: Which might create some problems?

Mr. James M. Nabrit, Iii: That's right.

But to me, that doesn't --

Justice Arthur J. Goldberg: But you'd he had the right to do it.

And that he would be protected and he has the right not arrested for exercise, is that what you said?

Mr. James M. Nabrit, Iii: That's right.

Now -- and to finish that, that the officers never connected.

They're orders that lead to this problem of -- that the park was for children or to the half hour period.

Actually, half hour is a pretty good period to engage in a basketball game especially when you get up around 30 years old.

I respectfully submit that the judgment below should be reversed.

Featured:

Shuttlesworth v. Birmingham - Oral Argument

Tue, 25 Sep 2012 22:36:57 +0000

Case:

Shuttlesworth v. Birmingham

Media File:

67_19621106-argument

Related Transcript:

67_19621106-argument

Transcript:

Argument of Constance Baker Motley

Chief Justice Earl Warren: Number 67, F. L. Shuttlesworth et al.

Petitioners, versus City of Birmingham.

Ms. Motley, you may proceed with your argument.

Ms Constance Baker Motley: Mr. Chief Justice, and may it please the Court.

In this case, the petitioners are two Negro ministers here on the grant of certiorari by this Court to review their convictions by the Alabama State Courts on a charge of inciting, aiding or abetting for violation of the trespass after warning ordinance which we have just discussed as a basis of the convictions of these students in the preceding case.

Now, the ordinance in this case also appears on page 2 of our brief.

It is a very strong ordinance which reads, “it shall be unlawful for any person to incite or aid or abet in the violation of any law or city ordinance or any provision of state law, the violation of which is a misdemeanor.”

Now, the records on which the state seeks to sustain these convictions, contained only the testimony of a Birmingham City detective, and this detective did not himself personally witness any of the facts to which he testified on this trial.

He was present in the Recorder's Court when these petitioners in this case were on trial and he testified in the Circuit Court on the new trial as to what he heard other witnesses say in the lower court.

Now, the entire testimony in the record in this case is very brief.

The first petitioner is Reverend Shuttlesworth.

Now, the testimony as to what Reverend Shuttlesworth did, the detective said, was that Gober and Davis, petitioners of the preceding case, testified that they took part in the sit-in demonstrations on March 31st, 1960.

And that they went to Reverend Shuttlesworth's house the preceding evening and discussed sit-in demonstrations.

Reverend Shuttlesworth was present, his wife was present, and several others students were present and the second petitioner in this case, Reverend Billups was present.

At this discussion, somebody prepared a list.

Now, who prepared it or what the list was, the record does not show.

The only other thing the record shows is that Reverend Shuttlesworth asked for volunteers and at one point said or announced, that he would get them out of jail.

Now, on that testimony, Reverend Shuttlesworth has been sentenced to 180 days at hard labor and a fine of $100.

Now, the testimony as to Reverend Billups, the other defendant -- or the other petitioner in this case, Davis one of the students in the preceding case reportedly testified that Reverend Billups picked him up on the campus of Daniel Payne College which Davis attends and drove him to Reverend Shuttlesworth's house and that Reverend Billups was present during the discussion.

What Reverend Billups said does not appear in the record at all.

From the record, it appears and he said, absolutely nothing and on that evidence, Reverend Billups has been sentenced to 30 days at hard labor plus a $25 fine.

Now we say first, that these convictions must be reversed because the record is devoid of any evidence to support a conviction that these petitioners urge the violation of any valid law of the City of Birmingham.

What they were urging was a sit-in demonstration.

Now, in order for this Court to find that what they were urging was a violation of some valid law of the City of Birmingham, it seems to me that this Court would have to find that a sit-in per se, as the court below finds, is a violation of law.

Now, as the prior decisions of this Court show, a sit-in per se is not an unlawful activity.

In the Garner case and in many state court cases, these convictions have been reversed or the petitioners have not been convicted and their cases have been dismissed, so that to urge somebody to participate in a sit-in demonstration is not itself a violation of any valid law.

Justice Hugo L. Black: Why wouldn't it be in your judgment?

Ms Constance Baker Motley: Because all they're urging is a protest against, in this case state enforced segregation and I think we have a right to protest against state enforced segregation.

Justice Byron R. White: By opinion?

Ms Constance Baker Motley: Yes, this is a method of communication.

In this case, these people went in to this place and sat down in an orderly fashion.

There were only two involved.

They didn't carry placards into the place.

Their activity was of -- in protesting was appropriate to the circumstance.

Justice Hugo L. Black: Was it charged or proven that they went there, that they were urged to go there and stay after the owner and knowingly advised them to leave --

Ms Constance Baker Motley: No, they test --

Justice Hugo L. Black: -- was there any evidence to that effect?

Ms Constance Baker Motley: Not in this case.

Justice Hugo L. Black: That's this one you're arguing, isn't it?

Ms Constance Baker Motley: That's right.

The -- there was no evidence that Shuttlesworth urged them to stay there until they had been arrested and until they had been ordered to leave.

There is no testimony, that's we're saying.

Justice Hugo L. Black: Well, would it have been a violation of this ordinance not the one that conceded to be invalid, but the one which is the basis of the other prosecution, would there have been any violation of that ordinance to go in there and stay before they were invited, told to get out by the owner?

Would they have violated any law by going in there and staying until the owner told them to get out?

Would they have violated this city ordinance?

Ms Constance Baker Motley: Well, in the circumstance of that Gober case, I think we've shown that the owner ordered them out and I think that --

Justice Hugo L. Black: I'm not talking about Gober, I'm talking about this one.

Is there any evidence in this case show that Shuttlesworth and this other man urged them to go into the store and stay there even though the owner ordered them to get out?

Ms Constance Baker Motley: No sir.

Justice Byron R. White: There is -- except the urging -- whatever you mean by a sit-in?

Ms Constance Baker Motley: That's right.

Justice Hugo L. Black: Well, I don't suppose we could take judicial knowledge of this issue – that they got to stay there or they order them out if that --

Ms Constance Baker Motley: Well --

Justice Hugo L. Black: -- if that's a valid law.

Ms Constance Baker Motley: I think that's different.

I think that they were going in there in this manner to protest, that's true.

But there is no evidence in this case that Reverend Shuttlesworth said to them, stay there until such time as your ordered to get out or stay there until the police come along and arrest you.

There just isn't any evidence in this record to that effect.

Justice Hugo L. Black: In other words, you say that taking all their evidence as proof, they did not prove any evidence from which it could be found that he urged them to go and then break this law by staying after they were ordered to leave?

Ms Constance Baker Motley: That's right.

That's right, exactly.

Justice John M. Harlan: [Inaudible] considers state court could permissively draw from the evidence that Shuttlesworth told them, I will get you out of jail, get them out of jail?

Ms Constance Baker Motley: Yes, the state --

Justice John M. Harlan: That's the real question, isn't it?

Ms Constance Baker Motley: That's right.

The state court drew the inference from that that Shuttlesworth had said to stay there until you're arrested and even the Court had difficulty with that because if you read their opinion, they were quite aware of the fact that there was no evidence that Suttlesworth told them to stay there until the police came.

What they actually said -- it's at the bottom of page 44, the second paragraph in the bottom.

There is no question of the restriction of any right of free speech or other simulated right derived from the Fourteenth Amendment since the appellant counseled the college students not merely to ask service in a restaurant but urged, convinced and arranged for them to remain on the premises presumably for an indefinite period of time.

And they used that word because there was no evidence in this record that Shuttlesworth said to stay there until you're asked to leave, stay there until the police came.

Justice John M. Harlan: But --

Ms Constance Baker Motley: They might have gone in and left after they were asked to leave as far as this record is concerned.

Justice John M. Harlan: What finding, if any, did the trial court make on that from that evidence, anything?

Ms Constance Baker Motley: This Court -- the trial court?

Justice John M. Harlan: Yes.

Isn't this the appellate court you --

Ms Constance Baker Motley: This is the --

Justice John M. Harlan: Oh, I beg your pardon?

Ms Constance Baker Motley: -- court of -- the Court of Appeals.

Justice John M. Harlan: Is it the Court of Appeals?

Now --

Ms Constance Baker Motley: Yes.

Justice John M. Harlan: Now, what was the trial court?

What did they find, if anything, on the significance to that portion, the federal or the state?

Ms Constance Baker Motley: Well, there was no opinion by the trial court in this case.

Justice Hugo L. Black: There was no jury, wasn't it?

Ms Constance Baker Motley: There was no jury.

No, but they were tried before the Court without a jury and convicted, found guilty and the sentence imposed.

Justice Hugo L. Black: No opinion of any kind, was there?

Ms Constance Baker Motley: No, I don't believe there was sir.

Unknown Speaker: [Inaudible] in the trial court.

Ms Constance Baker Motley: No, none at the trial court level.

The only opinion is the Court of Appeals' opinion in the said case.

Justice Hugo L. Black: This is what's I'm asking, the trial court.

Chief Justice Earl Warren: If we should reverse the Gober case, could this stand under any circumstances?

Ms Constance Baker Motley: I didn't get the --

Chief Justice Earl Warren: If we were to reverse the Gober case, could this case stand under any circumstances?

Ms Constance Baker Motley: No sir.

Chief Justice Earl Warren: Because it's merely aiding and abetting?

Ms Constance Baker Motley: Yes, they were charged with aiding and abetting, yes.

Chief Justice Earl Warren: Yes.

Ms Constance Baker Motley: This -- the violation of the trespass after warning.

Now, this Court should find that the Gober convictions are invalid, I should think that these convictions would automatically fall.

Chief Justice Earl Warren: Have to fall.

Justice John M. Harlan: Was that necessarily follow, do that necessarily follow?

Ms Constance Baker Motley: If this Court should free Gober and --

Justice John M. Harlan: Yes.

Ms Constance Baker Motley: Yes, I think because all they were charged with was urging or inciting and aiding and abetting Gober to commit a crime and if he is found not to have committed any crime, I should think that their conviction would fall.

Justice John M. Harlan: Well, wouldn't -- then on what ground did the Gober case was reversed supposing in the Gober case it was reversed on the ground that the evidence wasn't sufficient?

Ms Constance Baker Motley: Evidence wasn't sufficient to?

Justice John M. Harlan: To permit the conviction of Gober.

Does conviction under your aiding and abetting statute, this statute we're concern with here, depend upon proof that the substantive crime which was inciting --

Ms Constance Baker Motley: Otherwise -- is that what you mean now.

Justice John M. Harlan: -- was committed?

Ms Constance Baker Motley: No sir.

I think that -- it's correct that in a -- under statute like this, you don't have to prove that a --

Justice John M. Harlan: You don't have to prove it.

Ms Constance Baker Motley: -- substantive crime was actually committed.

But you have --

Justice John M. Harlan: Yes.

Ms Constance Baker Motley: -- but if you can show that they urged the violation of a valid law, they're still guilty whether that act was actually committed or not, yes.

Justice John M. Harlan: Therefore, you have to qualify your statement wouldn't you that -- under all circumstances reversed it in Gober would result in a reversal here would depend on the ground, wouldn't it?

Ms Constance Baker Motley: Yes.

Yes, I see what you mean now.

That's true.

Justice Byron R. White: Would the [Inaudible]

Ms Constance Baker Motley: The actual -- if the actual crime had not been committed, he could still be convicted of a crime of inciting a violation of a valid law.

Justice Byron R. White: [Inaudible]

Ms Constance Baker Motley: That's right.

He could have been convicted of this section in this case, but we say that his conviction is invalid because there is no evidence that he urged a violation of any valid law.

All it shows is that they discussed a sit-in.

Now, a sit-in means the cause that you go in but it doesn't necessarily mean you stay there until you're asked to leave.

And it doesn't necessarily say, you stay there until the police are called because these sit-ins have taken various forms as the history of the sit-in show, some of them have gone in and some have left when they were asked to leave and they were not arrested.

Justice Byron R. White: Well, I suppose there's some question about anybody's ability to incite a violation of this trespass law in the faith of a municipal ordinance requiring segregation.

Ms Constance Baker Motley: Yes.

I think that what happened here was the segregation ordinance.

It must be considered as we ask this Court to consider it and considering this conviction that what was really behind it was the segregation ordinance.

We ask the Court in this case also to take judicial notice about segregation ordinance in considering what was behind the situation.

Justice William J. Brennan: Now here, was there any reference at all about (Inaudible) --

Ms Constance Baker Motley: No, no.

In this trial, there was not Your Honor.

We only ask the Court to take judicial notice of a law that the court of the state could have just --

Justice William J. Brennan: How about on appeal?

Ms Constance Baker Motley: Pardon me?

Justice William J. Brennan: How about in the brief on appeal?

Ms Constance Baker Motley: No, I don't believe they raised that on the appeal on this case, but this Court now judicially know certainly from the preceding case that this ordinance is in the background of this situation.

And what Shuttlesworth was urging if he's urging anything which was a law of the City of Birmingham, a violation of, it was this invalid city ordinance requiring racial segregation and certainly, the law -- even this ordinance doesn't say, you may be convicted for urging a violation of an invalid law.

Justice William J. Brennan: Mrs. Motley, from what said in the Court of Appeals at page 44 of its opinion, would it not appear that they sustained the conviction solely on the incite language of the ordinance?

Ms Constance Baker Motley: Yes, it appears --

Justice William J. Brennan: So that any aiding and abetting is out, isn't it?

Ms Constance Baker Motley: Well, they said that our brief talked only about aiding and abetting and forgot about incite.

Justice William J. Brennan: Yes.

Ms Constance Baker Motley: Now, I don't know whether we can say they --

Justice William J. Brennan: Well, its --

Ms Constance Baker Motley: -- rest on it solely on that or not.

Justice William J. Brennan: It's not the clearest in the world but it does look as though the court said in any event we can sustain this on the incite --

Ms Constance Baker Motley: Inciting, yes.

Justice William J. Brennan: -- without reference to aid or abetting.

Ms Constance Baker Motley: Yes.

They said that we just talked about aiding and abetting and we forgot all about inciting and certainly, there was inciting here to violate a city ordinance, and this is -- they found.

And then they -- as I say, they went on to hold a sit-in per se an illegal activity.

And this is a basis on which these people were convicted just by finding that if you go and sit in a place and even if you leave, in other words, before you're asked or you don't intend to go in there to stay until the police, nevertheless that's a form of trespass, they say after warning just to go in a place and sit down.

Justice John M. Harlan: Can I ask you one question before you sit down?

Ms Constance Baker Motley: Yes sir.

Justice John M. Harlan: Assuming and I'm not suggesting, so assuming however that one concluded that the evidence was sufficient as to Shuttlesworth, could Billups be held on the evidence of -- is being having taken students over to Shuttlesworth's premises plus his presence there as an aider and abetter of Shuttlesworth's incitement either under the provisions of the abetting provisions of this statute or under some general accessory of law that maybe in your state?

Ms Constance Baker Motley: I would say no, because there's nothing in this record to show that Billups did anything at all except take this man there and sit there.

I don't see how a man could be convicted for a crime and if you read Gober's or Davis' testimony, his testimony in the preceding case was that he asked Reverend Billups to drive them over there when he saw Reverend Billups on their campus.

Of course, that's not in this record, it's in the preceding record.

But I don't think that this man Billups could be held guilty of a crime because he sat in on this discussion where the record shows that he said absolutely nothing.

Justice John M. Harlan: Do you have a general accessory statute in Alabama?

Ms Constance Baker Motley: Well, I don't really --

Justice John M. Harlan: This is Alabama, isn't it?

Ms Constance Baker Motley: I understand they do have a general ordinance --

Justice John M. Harlan: Can you give me the citation to it?

Ms Constance Baker Motley: We don't have the citations to that Your Honor.

Justice John M. Harlan: I'll check it.

Ms Constance Baker Motley: I'd like to save the remainder of my time for the rebuttal.

Chief Justice Earl Warren: You may.

Mr. Davis.

Argument of Watts E. Davis

Mr. Watts E. Davis: May it please the Court.

I believe one of your justices just asked the question of whether or not without the use of the word “incite,” the petitioners would have still been involved under the aiding and abetting language and I have cited in my brief, the case of Davis versus State, 36 Alabama, well of course its cited, which -- and this is on page 11 if you have my brief.

The words, aid and abet comprehend all the systems rendered by actual words of encouragement or support and then went on to say, nor is it necessary to show prearrangement to do the specific wrong complained of and I also cite the case [Inaudible] versus State stating aiding and abetting and comprehend all the assistance rendered by acts or words of encouragement.

And then also, the participation in a crime in the community of purposes -- that perpetrators need not be proved by direct or positive testimony but may be inferred from circumstantial evidence and that's Parsons versus State all of which are set out on page 12 of respondent's brief.

But actually, I don't think there's any special significance in the use of the word “incite” except it might clarify to some extent, but the state courts in construing its own statute have said that the actual word of encouragement are sufficient under aiding and abetting alone without even referring to the use of the language incite was [Inaudible] --

Justice William J. Brennan: [Inaudible] facing this only on this opinion of the Court of Appeals and that's (Voice Overlap) --

Mr. Watts E. Davis: I think I can explain that to his Honor --

Justice William J. Brennan: -- before this Court.

Mr. Watts E. Davis: I think I can explain that.

Justice William J. Brennan: I see.

Mr. Watts E. Davis: There -- that brief which you don't have and I have read what the great -- let's say, well they never proved that these students went out anywhere and committed any crime.

Now, how can you aid and abet somebody when you haven't established they committed a crime?

I pointed out in my brief that they were overlooking and used the word incite and -- because they used the word incite is convenient in this case because -- and you don't need the Court decisions to read the -- that end, that word encouragement, are aiding and abetting.

So our ordinance simply spells out that inciting is one of the alternate modes of offending the ordinance.

Justice William J. Brennan: Well, then you read the opinion as saying that the conviction can rest on the language aid or abet?

Mr. Watts E. Davis: Oh, yes sir.

Yes sir.

Incite actually is nothing in our opinion but they had gone on this level that they have to aid and abet somebody to do a crime.

Justice Hugo L. Black: Crime?

Mr. Watts E. Davis: And they'd made it more of convenient well on offense.

And it made it more convenient to say well, let's use the word incite, that's a clear word and you'll overlook it and I pointed out that they were overlooking the inciting part.

Because I think incite give the flavor of the thing.

At least it warrants you that you don't have to have a combination of this thing result in some actual offense later on.

If I get out here and hold a meeting and I said, I don't want you people, get out here and I want you to go about this plan of robbery or intimidation and incite the other.

And I may do my best to influence them, but my powers in persuasion are not always very successful and they may change their mind, but the point is I -- I am inciting and the court in its decision under the state statute said that I'm also aiding and abetting, but they tried to go on the theory that to aid and abet should had to have the actual commission of the crime.

As I pointed out in brief, many cases called it even the common law, that's what in the facts and our position is simply that we have codified one in effect was common law.

Justice Arthur J. Goldberg: Mr. Davis, where in this record or was there any evidence, any evidence that Reverend Shuttlesworth incited or aided and abetted anybody to do anything [Inaudible] sit-in? I don't take it your contention here, that a sit-in as such is illegal under the law of Birmingham.

Mr. Watts E. Davis: Well, I say this that the Appellate Court in Alabama said that they sit down, they used the word sit down as contrast to sit-in.

It was comparable to sit down strikes and that evidently the connotation that we used here, you see these things were discussed in a meeting, they would just -- sit down was used all through the trial and no one ever objected to it.

Everyone understood the use of the word, the Court reasoned that it was comparable to the Fansteel case wherein you had your sit down strikes.

Justice Arthur J. Goldberg: But the charge here was a violation of Section 1436?

Mr. Watts E. Davis: A trespass after --

Justice Arthur J. Goldberg: The trespass after warning.

Mr. Watts E. Davis: -- warning and the Court in this instance construed that to include a sit down and the question really is I assume what is a sit down, what did – prime out to that question, the question is, did the Court have the right to assume if you were to sit down was and in this case, it did.

Justice Hugo L. Black: Suppose they had done precisely what's the Court of Appeals said, gone there and sat it down for an indefinite time and nothing had happened, would they have violated your law?

Mr. Watts E. Davis: I don't think the Court of Appeals was as comprehensive in its language that it might have been.

Justice Hugo L. Black: Well, it -- I suppose --

Mr. Watts E. Davis: I think it assumes that the parties in interest of this thing knew that there was warning involved it also.

Justice Hugo L. Black: All I'm saying -- asking is that whether this is crime or a quasi crime, it has to be proved in the Court, but the charge is that they incited them to violate this section.

Mr. Watts E. Davis: City ordinance or statute.

Justice Hugo L. Black: And you would agree that that meant that they violated nothing unless they were ordered to get out and refused to go out.

Mr. Watts E. Davis: That's right.

They -- you have to incite them to violate some city ordinance.

Justice Hugo L. Black: And they'd have to incite them to violate the whole thing which was to go in, not merely to go in but stay there after they were invited to leave.

Now, I have grave doubts myself in finding in the evidence that was given anything on which as Mr. Justice Harlan said, of course they could draw an inference.

It was to incite to violation of the law, that would be one thing, but I find it difficult to say because they had merely invited them to go there and stay even for a long time.

That that's enough, (Voice Overlap) --

Mr. Watts E. Davis: I agree with you Your Honor.

Justice Hugo L. Black: -- which I think a criminal or quasi-criminal activity have to be established to convict them (Inaudible).

Mr. Watts E. Davis: Well I agree with you, just suggesting when they go there and remain for long time would not be sufficient.

The essential element is, whether or not he had contemplated when they went there, they were only told to leave when he -- first, he asked for volunteers, well of course just to go there and sit and leave when they were told, then they didn't require volunteers.

Justice Hugo L. Black: [Inaudible]

Mr. Watts E. Davis: But he assured them he would get them out of jail.

Justice Hugo L. Black: [Inaudible] -- would the burden of proof that he -- you have to prove a crime by evidence if -- you can't just guess.

Mr. Watts E. Davis: I go along --

Justice Hugo L. Black: And --

Mr. Watts E. Davis: -- with Your Honor completely, yes sir.

Justice Hugo L. Black: And of course, that here, they said go there.

Well, I can well imagine that much could be accomplished in a way, they [Inaudible] merely by going there and staying and then leaving.

Mr. Watts E. Davis: I would -- perhaps be one of the first to concede that this is not the strongest case I would like to have.

The question is -- the question here is whether or not the rule are set out in Thompson versus City of Louisville and as affirmed in Garner versus State of Louisiana is still in effect whether we have any evidence.

Justice Hugo L. Black: Well, it did.

I don't --

Mr. Watts E. Davis: Any evidence, whatever.

Justice Hugo L. Black: I must say that I understood that to mean, I had little to do with it, I understood that means that they must have some evidence from which it can be inferred, the man is guilty of each essential element of the crime.

Here, an essential element of the crime is to stay there as it conceded after they warned to leave. He didn't tell them to do that.

I would find it difficult myself to draw an inference from this evidence but that's what he told them to do, that's a basic conviction of a crime (Inaudible).

Mr. Watts E. Davis: Well, one thing is --

Justice Hugo L. Black: And talking at his home.

Mr. Watts E. Davis: Yes.

Well, I appreciate Your Honor's proper law on that and it's not an easy one and I don't think that it is, but we do have this situation, do we know what a sit-down demonstration is?

They cite more review articles that deal with them as a thing of common experience.

It was a fact of life in Birmingham when these things came up to trial -- at the trial, at the Circuit Court level.

They were an established fact of life.

When I asked to our superiors if they discussed sit downs, abet was the earlier evidence, he said, yes.

I said did -- do you know of your own knowledge that they in fact, these people are attending his meeting participated in the sit downs, yes.

I know of my own personal knowledge, yhey did.

Now, where is any question --

Justice Hugo L. Black: But the fact --

Mr. Watts E. Davis: -- what a sit down is.

Justice Hugo L. Black: The fact that they -- the fact that they went there and assuming if they went there and went further than they had -- language to do and were guilty of violating it.

You can't take that back, that is to show that when he told them this, he'd included something that you wouldn't (Voice Overlap) --

Mr. Watts E. Davis: Well, I think if he (Voice Overlap) something else --

Justice Hugo L. Black: -- without it.

Mr. Watts E. Davis: Yes sir.

I don't know of this other statements.

Justice William O. Douglas: I don't see why you make these concessions counsel because if this ordinance requires a separation to races in restaurant is valid, that whether they stay a minute or whether they stay ten minutes or whether they stay until there's a fight --

Mr. Watts E. Davis: Well, we don't, we've never conceded the ordinance was valid Mr. Justice Douglas.

And in fact, that brings me up to a point that --

Chief Justice Earl Warren: Mr. Davis, I was just wondering if the Court according to your theory could not take judicial notice of the provisions of an ordinance of Birmingham which specifically stated a crime, how can it take judicial notice of the fact that the term sit-in contains the elements of a public offense?

Mr. Watts E. Davis: I don't think it's the question of judicial notice Mr. Chief Justice.

Chief Justice Earl Warren: Well, what is -- how does it acquire, how to acquire knowledge in the (Voice Overlap) --

Mr. Watts E. Davis: In the first place -- first place, these petitioners passed up -- well, or at their insistence, they had no jury.

Chief Justice Earl Warren: Beg pardon?

Mr. Watts E. Davis: They had no jury, it was their choice and they elected not to have a jury to try the case so the Court sits as a jury.

If we had 12 men sitting there, and I think the two are the same in this situation where they elect to let the court act as jury.

He is charged by law, juror has to use his common experiences, his common sense, his common knowledge of affairs.

And he finds that as a matter of common experience not because he judicially knows something.

That -- I think judicial knowledge and things we know as a matter of common experience as jurors are two different things.

Chief Justice Earl Warren: You mean that a juror would be used -- would be expected to use his common sense --

Mr. Watts E. Davis: Yes sir.

Chief Justice Earl Warren: -- [Inaudible] such things but the judge would not?

Mr. Watts E. Davis: He is admonished -- I didn't say that.

Chief Justice Earl Warren: No, but the inference is there.

Mr. Watts E. Davis: Well, I didn't say that to you.[Attempt to Laughter]

I said simply this, a court judicially knows certain things, it may not know at all as is [Inaudible] [Laughter]

But jurors --

Justice Hugo L. Black: We don't concede that.

Mr. Watts E. Davis: This is purely argument.

Jurors are charged by the Court.

Gentlemen should be able to use your common experiences.

Those things you know are common facts in life.

That's why they picked 12 of them.

Together, a mass of human experiences and this thing was widely known, it's been sensationalized throughout our publications and I think outside of that as well.

But it was not something --

Justice Hugo L. Black: I know -- may I see Mr. Davis in that connection that I know -- I'm not an expert on it but I would think there are some sit-ins where they sit there until they're directed out and then they get out –-

Mr. Watts E. Davis: This rule, a little more stubborn.

Justice Hugo L. Black: Well, I say this -- they might have been when they got there.

Mr. Watts E. Davis: Yes sir.

Justice Hugo L. Black: But merely telling a man to go and --

Mr. Watts E. Davis: Well, I think this may answer that question and please, I don't want to go -- I want to save some time after the Solicitor General, 15 minutes if I may.

He assured them he would get them out of jail.

Now admittedly they didn't breach the peace.

Justice Hugo L. Black: Yes, but there was a --

Mr. Watts E. Davis: They claim that and we claim that.

Justice Hugo L. Black: There was an ordinance there, though where they could be put in jail whether they violated it or not.

Mr. Watts E. Davis: Not the petitioners.

No, the restaurant operator, the restaurant operator is the one that goes to jail under this restaurant ordinance that they bring up here in this Court.

Chief Justice Earl Warren: Couldn't anyone who aided and abetted him go to jail?

Mr. Watts E. Davis: I'm sure so, yes sir.

Chief Justice Earl Warren: Well, wouldn't these people be aiding and abetting him?

Mr. Watts E. Davis: No sir.

The ordinance doesn't say that.

The ordinance puts a burden on a restaurant operator for that petitions and inferences.

And then they were shown whether he had the petitions or inferences.

That isn't in the record even if we're going to try to find it in the record.

That is not in the record.

Justice Hugo L. Black: No, I was --

Mr. Watts E. Davis: Yes.

Justice Hugo L. Black: I was limited to the precise evidence that's in the record in a criminal case on the question of sufficiency.

Mr. Watts E. Davis: I'm lost a moment here.

Justice Hugo L. Black: Well, I -- you would too of course.

I say -- what I mean is that I agree with you that we should limit consideration of whether there's enough evidence here to the actual evidence as given in the case.

Mr. Watts E. Davis: Yes sir.

But I think there are reasonable inferences we may draw and one is this if they were not going to breach the peach, what were they're going to jail for.

If the operator of the restaurant was the one involved in not putting up the separate doors and the petitions and so forth, certainly they weren't going to jail for his people.

Then what did -- what did Reverend Shuttlesworth have in mind when he assure them he would get them out of jail.

They discussed --

Chief Justice Earl Warren: Well, we've had -- we've had some case is here, the Garner case and the Louisville case and other cases where they did put him in jail whether there wasn't any evidence of any kind against them.

Mr. Watts E. Davis: Well, I have to say this --

Chief Justice Earl Warren: I didn't say that under those circumstances something to that kind could happen.

Mr. Watts E. Davis: I agree with His Honor in this.

This may not have been the only conclusion reachable under the facts, but the question is whether the Court acting as a jury had any evidence before it, could it -- could it act upon any thing it had to find that he was inciting them to go or remain on the premises of another.

Justice John M. Harlan: Oh, [Inaudible] the rule and that is that we think that judge the constitutional permissibility of the inferences.

This isn't a question for us, it should -- as it might be if we were sitting under the state appellate court and reviewing the evidence.

Mr. Watts E. Davis: Yes sir.

Justice John M. Harlan: Was that the nature of the state questionnaire, I didn't – Well, I suppose an issue of the statement.

Justice Arthur J. Goldberg: Mr. Davis, [Inaudible] that the total evidence in your case, is why Reverend Shuttlesworth asked for volunteers to just stay and sit down [Inaudible].

Then the following day, they made some [Inaudible] and would get them out of jail, is that a [Inaudible]?

Mr. Watts E. Davis: There were a little bit more to it because there's --

Justice Arthur J. Goldberg: [Inaudible] of it anymore or the record's pretty careful as to [Inaudible]?

Mr. Watts E. Davis: You are on 30 and 31 I believe.

Justice Arthur J. Goldberg: [Inaudible] I don't want to take your time now, but that's all you did --

Mr. Watts E. Davis: Of course -- of course, we started out with the statements made by Gober and made by Davis on another occasion.

It describes the fact that Reverend Billups came out to school and then he rode with him and with several other people there to Shuttlesworth (Inaudible).

Justice Arthur J. Goldberg: [Inaudible] Reverend Shuttlesworth that what he did [Inaudible]

Mr. Watts E. Davis: Well, he discussed, yes.

He did -- he participated in the discussion and asked for volunteers and assured them he'd get them out of jail, that was it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Watts E. Davis: So, that that --

Justice Arthur J. Goldberg: [Inaudible] and he would get them out of jail.

Mr. Watts E. Davis: That was [Inaudible] --

Justice Arthur J. Goldberg: And afterwards, --

Mr. Watts E. Davis: Yes sir.

Justice Arthur J. Goldberg: [Inaudible

Mr. Watts E. Davis: That's right sir.

Justice Arthur J. Goldberg: [Inaudible] that was another issue to [Inaudible]

Mr. Watts E. Davis: That's right, that's correct.

Justice John M. Harlan: What do you say about Billups?

Mr. Watts E. Davis: If I may take the liberty, counsel for petitioners, they didn't refer to the other record, some record in -- evidence to the carried six over the meeting, this one, he carried one.

One or six, I don't think it makes any difference.

But nevertheless, he was out to school and carried a student to the meeting.

He sat there.

He did not take a stand to negative his position.

But at least there were some evidence there that he was part and parcel of the scheme, they were both fraternities of the same -- of the minister [Inaudible]

Justice John M. Harlan: Is it permissible under Alabama law for a court to draw an inference in the failure that if the defendant take a stand -- take a stand in a criminal case?

Mr. Watts E. Davis: If -- it must not be commented upon to the jury but whether he commented or not, there is no evidence to negative.

That's the only point I make, not that he did negative that there is nothing to make.

And the Court in the Appellate Court opinion said, there's nothing -- have no choice but assume he was part and partial but he didn't get up leave.

There was no evidence of that.

There was no evidence that he recuse himself in any way from any responsibility.

But he did take someone there, he did remain there and these things were discussed in his presence.

I don't know whether it's a fact-finding of group of people gathering one person maybe standing over here just to count his own money, but I think they generally assumed he is part of the operation unless he takes the stand that it was of some strong defense.

Thank you.

Chief Justice Earl Warren: Ms. Motley, do you have any --

Rebuttal of Constance Baker Motley

Ms Constance Baker Motley: I have nothing further Your Honor.

Chief Justice Earl Warren: Yes, very well.

Featured:

Gober v. City Of Birmingham - Oral Argument

Tue, 25 Sep 2012 22:36:54 +0000

Case:

Gober v. City Of Birmingham

Media File:

66_19621106-argument

Related Transcript:

66_19621106-argument

Transcript:

Argument of Constance Baker Motley

Chief Justice Earl Warren: Number 67, F.L. Shuttlesworth et al., Petitioner, versus City of Birmingham.

I beg your pardon.

This is Number 66, James Gober et al. versus City of Birmingham.

Mrs. Motley.

Ms Constance Baker Motley: Mr. Chief Justice and may it please the Court.

The petitioners in this case are 10 Negro students attending Daniel Payne College in Birmingham, Alabama.

They are here pursuant to Title 28, United States Code Section 1257, seeking a reversal of their convictions for trespass after warning by the Alabama Court.

Now, relying on the Due Process and Equal Protection Clauses of the Fourteenth Amendment, these petitioners repeatedly find the law and assert here that their convictions are constitutionally void because they are the product of state action manifestly prohibited by the Equal Protection Clause of the Fourteenth Amendment.

Now all 10 petitioners were arrested on March 31st, 1960 following sit-in demonstrations in five Birmingham department stores.

They at that time were seeking food service at a lunch counter limited to white persons.

Each petitioner was charged and convicted of violating Section 1436 of the Birmingham Code, a trespass after warning statute which appears on page 2 of our brief.

There are five trials in these cases, one, petitioner was tried and then it was stipulated that the testimony as to that one petitioner would apply to his companion.

You see, two petitioners went into each of these five stores.

And they were first tried in the Recorder's Court of the City of Birmingham and convicted and then appealed to the Circuit Court, their convictions were -- they affirmed and affirmed by the Court of Appeals of Alabama which is the only court that wrote an opinion and certiorari in the Supreme Court of the State was denied.

Now the significant facts in all of these cases are relatively the same.

The first important fact is that Birmingham has a city ordinance which makes it unlawful to serve Negroes and whites in the same room.

That ordinance appears on page 2 of our brief.

Now this ordinance is a part of a massive state policy of racial segregation, is set forth in our brief the Alabama segregation statutes.

All of the petitioners of course are Negroes.

For one successfully sought service in department stores where Negroes are welcomed and served at all counters except the lunch counter where this ordinance requires that there be racial segregation.

Now, in every one of these cases, the petitioners were asked to leave the counter by some representative of the store in the sense that they were told that they could not be served there or we have a counter for Negroes on the fourth floor, in the basement once you go there.

Or in some instances, the counter was closed after the Negroes appeared and were told this and didn't leave.

Now, the police arrived and the police arrived in some instances when the people were still eating and the police arrived and not pursuant to a call from any member of the store in any case.

And this -- that the record is absolutely clear on that that no employee in any one of the five stores called the police.

Moreover --

Justice Potter Stewart: Does the record show how the police got there?

Why they --

Ms Constance Baker Motley: Yes sir.

Justice Potter Stewart: -- why they came there?

Ms Constance Baker Motley: Yes.

And every case, the officer testified that he was directed to go there either by a superior officer or by a call over the radio in his car from police headquarters.

Justice Potter Stewart: It doesn't show the chain behind that.

Ms Constance Baker Motley: No, it doesn't.

But he testified that he was directed by a superior or a call from the police headquarters and every store employee testified that he or she did not call the police --

Justice Potter Stewart: There's no --

Ms Constance Baker Motley: -- and that was clear.

Justice Potter Stewart: No indication in any of the cases that the police were already there when (Voice Overlap) --

Ms Constance Baker Motley: No sir, I don't believe there's any indication to that effect.

Justice Hugo L. Black: Your case differs from the other then and that as I understand it, if the restaurant owner could not have chosen to serve --

Ms Constance Baker Motley: Yes, I would say --

Justice Hugo L. Black: -- without making himself a violator of the city law?

Ms Constance Baker Motley: Oh, I would say in this case like -- unlike the others, we have the ordinance which was clearly in the record I think or the Court certainly was required to take judicial notice of it but I want to make it clear that even if they were not an ordinance in this case, the rest of the petitioners and their conviction in this matter in these circumstances would still violate the Equal Protection Clause if this --

Justice Hugo L. Black: I understand that's your argument but --

Ms Constance Baker Motley: Yes.

Justice Hugo L. Black: -- certainly in this case, you have a city law which he would've violate -- would've violated had they served this.

Ms Constance Baker Motley: That's right sir.

Justice Hugo L. Black: And they could not make a choice of their own free will but that's if -- if there'd been the other way without subjecting in there the prosecution and conviction for --

Ms Constance Baker Motley: Yes sir.

Justice Hugo L. Black: -- of this ordinance.

Ms Constance Baker Motley: Yes sir.

Justice Byron R. White: (Inaudible) of law by the -- (Inaudible) that's the constitution?

Ms Constance Baker Motley: Yes sir, on page 24 of the record, the representative from Kress' Department Store was on the stand and he was asked what the petitioners have been told.

Answer, on page 24, he told them, “It would be against the law to serve them there”.

Then petitioners counsel asked him about this ordinance which I've just referred to and there was an objection by the respondent -- by the lawyer for the city and the judge sustained that, he said he didn't think the witness -- his knowledge of the law was material or anything like that and the counsel for the defendants here said, “This is the whole theory of our case”.

And the Court would not permit him to develop that theory of the case.

He said that, “We want to show”, as he says at the bottom, “It is our theory of this case, it is one, they simply on the city segregation ordinance”.

Justice Byron R. White: Oh, I assume the -- I assume that such an ordinance would be unconstitutional.

Ms Constance Baker Motley: Oh, certainly.

Justice Byron R. White: And a -- but and a -- is there anything -- is there -- there is some evidence in the record that this wasn't a dead letter of ordinance, it was just a -- hadn't been cleared from the books (Inaudible) but that it really had some teeth in it that it was a meaningful ordinance in this context at this time?

Ms Constance Baker Motley: Well, as I say that the Court was not -- have been to develop it but I think this case shows -- this record shows that this ordinance was what was being enforced because each police officer came in to the store and on the stand he was asked, “What did you see unusual as you came in to the store?”

And each one replied, “I saw two Negroes sitting on the couch”, and for him that was enough.

Justice Byron R. White: Isn't -- this didn't have specific reference to the ordinance now --

Ms Constance Baker Motley: No, he didn't refer to -- specifically to an ordinance but in one case, he said, “I arrested them under the authority of the City of Birmingham”.

But the police officer, he -- in most instances he spoke to no one as he came in.

In one case he said, “Mrs. Evans gave me the complaint”.

The petitioner said, they never saw Mrs. Evans until that -- she got to court, the Recorder's Court so that the testimony in each case says that the police officers went in and did not speak to any employee of the store --

Justice Byron R. White: It doesn't simply get a reference to the ordinance as being a factor in the storeowner's decisions in any of the cases --

Ms Constance Baker Motley: Well, what I just read --

Justice Byron R. White: Except that it's against the law.

Ms Constance Baker Motley: That's right.

Justice Byron R. White: But that's just in one case.

Ms Constance Baker Motley: That's right.

Justice Byron R. White: And there's nothing I gather in the other cases.

Ms Constance Baker Motley: Well, in the other cases, I think the Court made it clear to the lawyer, he wasn't (Inaudible) -- have that testimony.

Justice Byron R. White: He was -- yes.

Ms Constance Baker Motley: And then in another place, the lawyer for the petitioners wanted to bring out that these people would have been served if it hadn't been for the ordinance and the Court cuts that off.

Justice William J. Brennan: What page is that Mr. Motley?

Ms Constance Baker Motley: Yes sir.

It's -- one on page 67 and one on page 168.

The Court said at this point in the middle of that page, “Is there any question before the Court now?”

And Mr. Hall, the lawyer for petitioner said, “If Your Honor pleases, we have asked Mr. Sterling (ph) about new various policy.”

The Court - “That is not competent”.

And then he took an exception.

Justice Byron R. White: What did the Alabama -- what did the appellate court say about that --

Ms Constance Baker Motley: The appellate --

Justice Byron R. White: -- its evidentiary ruling?

Ms Constance Baker Motley: Pardon me?

Justice Byron R. White: What did the appellate court say about this evidentiary ruling?

Ms Constance Baker Motley: He -- they didn't say anything about that specific ruling.

They ignored all the evidence of the State policy -- the State ordinance.

And said, the owner here was exercising his right to choose his own customers.

As to the ordinance, they said it has not been pleaded and therefore they wouldn't pass on that but there is a statute in Alabama which requires the Court to take judicial notice of an ordinance.

Justice William J. Brennan: But the Alabama Supreme Court ruled they didn't have to.

Ms Constance Baker Motley: The Court of Appeals of Alabama.

Justice William J. Brennan: Court of Appeals, yes.

Ms Constance Baker Motley: Well, they said that it should have been pleaded that we should have by some pleading set forth that ordinance.

Well of course, I don't believe that's true because number one, you could take judicial notice of it, and number two, the petitioner said my whole defense is there.

And certainly, that was before the Court when it reviewed the case.

Justice Hugo L. Black: How is the State in a position despite all that?

How was the State in a position to say that this is voluntary action of an owner when he'd be a criminal under that state law if he did?

Ms Constance Baker Motley: Well, of course they're not and I -- the Court in making its decision just ignored all of the evidence here that the police came in, that the storeowner did not call the police that even after the police arrived, the storeowners did not request the arrest.

And the officer was asked in every case, “Was an arrest requested?”

So it's clear I think that the State was acting in this case to enforce a state policy regardless of what the owner's policy might have been.

Chief Justice Earl Warren: In the absence of an or -- of the ordinance, would we have the Garner case here?

Is this Garner?

Ms Constance Baker Motley: Yes.

I think that here, the -- as far as the free speech -- are you saying or the donor with respect to no evidence.

Chief Justice Earl Warren: No evidence.

Ms Constance Baker Motley: Well, I think that in each of these cases, the petitioners were asked to leave the store by some representative of the store and in that sense, this evidence that they were asked to leave.

Chief Justice Earl Warren: I see.

Ms Constance Baker Motley: Now, as to the Garner case, what we say with reference to that is that this situation is like the opinion of Mr. Justice Harlan in Garner that here, the storeowners were apparently willing to endure this controversy.

They did not call the police.

When the police came, they didn't ask if they'd be arrested.

And so these petitioners were there demonstrating against the state's policy of enforcing segregation and they demonstrated in this manner by sitting themselves at the counter, quietly asking for service like anyone else who as white does.

And the owner apparently was willing to, as I say, endure this kind of controversy in this manner.

If he was not, he obviously would have called the police.

When the police arrived, he would have said I wanted them arrested.

And there's no question that they were peaceful.

There were only two in each store.

Justice Arthur J. Goldberg: Mrs. Motley, do I understand (Inaudible) to say that the (Inaudible) in the application?

Ms Constance Baker Motley: No sir.

There -- Gober was tried and his companion was Davis.

Davis was not separately tried.

The testimony as to Gober was stipulated as a testimony as to Davis.

Justice Arthur J. Goldberg: Not to other?

Ms Constance Baker Motley: No sir.

And then the next two came up.

They were in a different store.

One was tried, the testimony as to that -- defendant was stipulated as to his companion and so forth.

Justice Arthur J. Goldberg: Now with reference to the (Inaudible)?

Ms Constance Baker Motley: That's right.

After that, he didn't mention the ordinance again.

But as I say, there's a state statute which requires the courts to take judicial notice of ordinances in cities of a certain size of which Birmingham certainly is one.

Justice Arthur J. Goldberg: Yes but I understand that but there is no (Inaudible) by counsel.

Ms Constance Baker Motley: That's right.

Justice Arthur J. Goldberg: Or the defendant in the other case.

Ms Constance Baker Motley: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Ms Constance Baker Motley: Yes sir.

Justice William J. Brennan: And were these cases tried in sequence (Voice Overlap)?

Ms Constance Baker Motley: Yes, one after the other.

They were --

Justice William J. Brennan: Before the same judge?

Ms Constance Baker Motley: Before the same judge --

Justice William J. Brennan: Same counsel?

Ms Constance Baker Motley: Yes sir, same counsel.

Justice William J. Brennan: Same day?

Ms Constance Baker Motley: They were treated as a whole.

The motions were all identical --

Justice William J. Brennan: Filed all in the same day then?

Ms Constance Baker Motley: Yes, they were.

I believe they were.

And the sentencing was a joint sentencing for all of them.

They were treated as one case.

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

Justice John M. Harlan: On page 26 Mrs. Motley --

Ms Constance Baker Motley: Yes sir.

Justice John M. Harlan: Am I wrong in agreeing to the judge's ruling as overruling the objection to the inquiries to the segregation ordinances -- overruling (Inaudible)?

Ms Constance Baker Motley: I think that's some confusion in the record --

Justice John M. Harlan: (Inaudible)

Ms Constance Baker Motley: When --

Justice John M. Harlan: (Inaudible) three times now and it's the reason to my question.

Ms Constance Baker Motley: Yes, it's very --

Justice John M. Harlan: I advise that -- I want to object as to Mr. Davis' counsel to the State, I want to object to the records, to the segregation ordinance, this ordinance has nothing to do with the manner of segregation.

I think he'd need a trespass statute.

Ms Constance Baker Motley: That's right.

Justice John M. Harlan: And the Court -- wouldn't it apply equally to everybody and I take it that refers to the segregation ordain -- ordinance.

I overrule the objection.

Ms Constance Baker Motley: Yes, but then Mr. Harlan, on -- to ask about the ordinance and he then said that wasn't competent.

And I think that what he intended to say was that he was sustaining the objection of the city's -- city attorney to the introduction of any testimony concerning the ordinance.

It's very confusing.

I was not at the trial and the way I read it here this is what he was really doing.

Unknown Speaker: He didn't -- no objection, aren't they?

Ms Constance Baker Motley: Pardon me?

Unknown Speaker: He did not -- would've intended that?

Ms Constance Baker Motley: That's right.

He did not let him put in that evidence regarding the ordinance.

So what he was doing was sustaining the city's objection to the introduction of testimony regarding the effect of the ordinance.

Justice William J. Brennan: (Inaudible) confusing to me.

Mr. Hall thought he had an opening --

Ms Constance Baker Motley: Yes.

Justice William J. Brennan: -- and he promptly asked the question, “Are you aware of the ordinance?”

And the witness promptly answered, “I've heard of it”.

Ms Constance Baker Motley: Yes.

Justice William J. Brennan: And then Mr. Davis promptly objected again the judge sustaining objection.

What's confusing about that?

Ms Constance Baker Motley: Well, I think that what the Court was saying that he didn't want any testimony regarding that ordinance in this record.

That's the way I read it.

Justice William J. Brennan: Well, I wonder, can't it be read on the other way?

Justice John M. Harlan: Well, it could be certain if you read it to me, my objections is as to what the judge says as to what the ordinance (Inaudible) use the question of the law to distinguish what effect the ordinance had on the actions of the (Inaudible)?

Ms Constance Baker Motley: Yes, I think it's subject to that interpretation, yes.f

Unknown Speaker: (Inaudible)

Ms Constance Baker Motley: Yes.

Justice John M. Harlan: (Inaudible)

Justice Tom C. Clark: I thought the judge had said on the page before though, page 25, and the policy wouldn't be immaterial anyways if (Inaudible) -- was that the manager?

Ms Constance Baker Motley: Yes.

I think at that point he was talking about Kress' policy --

Justice Tom C. Clark: That was (Voice Overlap) --

Ms Constance Baker Motley: -- the man at the storeowner's policy.

Justice Tom C. Clark: But on the law, not on the policy.

He was judge -- yes, but that was referring to the ordinance rather than the policy of the manager if he said that manager's policy would not be material.

Ms Constance Baker Motley: Yes, they were talking about both I think at this point.

He said that the manager's policy was not material.

He also said that the ordinance was not.

As I understand the trial judge, he didn't want to hear that this is -- would serve these people notwithstanding the ordinance.

He didn't want to hear that either.

Justice Tom C. Clark: He was the manager, was he?

Ms Constance Baker Motley: Well, he was the president or vice president of the business, the person who --

Justice Tom C. Clark: He's the one that told them to leave the store.

Ms Constance Baker Motley: That's right.

I think I would like to save the remaining portion of my time for the rebuttal.

Justice Hugo L. Black: May I ask one question?

Ms Constance Baker Motley: Yes sir.

Justice Hugo L. Black: Does it show one of those that has now abandoned the old type of --

Ms Constance Baker Motley: Not that I know of sir.

Justice Hugo L. Black: It's not in that group.

Ms Constance Baker Motley: No sir.

Chief Justice Earl Warren: Mr. Davis.

Argument of Watts E. Davis

Mr. Watts E. Davis: May it please the Court.

First, if I might clarify one or two items that have just gotten into this matter, we've been discussing here the unusual circumstances of the Court's ruling and I think simply it was a slip of the tongue.

You'll notice Mr. Hall and the judge have been discussing this matter from page 24 through 26.

And I think the judge forgot the frame of the court -- the form of the question of the objection at this point.

It was simply going along with the thing and overruling.

When he says overrule, I think he means the “overrule” is a general approach to this thing that you're getting into the surrounding or -- irrelevant matters.

But another thing that I want to mention before I go into what I had in mind, addressing the Court on is the propositions that counsel has said apparently they were willing to tolerate this condition.

And I believe in briefs, they mentioned the proposition of economic give and take.

And I might throw this question out for an answer if they desire to answer it.

Why would the storeowners have turned out the lights if they want them to sit there and tolerate this?

Why did they ask them to leave if they were willing to tolerate this?

Why did they say we cannot serve you here if they're willing to tolerate it?

Justice Hugo L. Black: Well, he just said immediately before, he cannot serve them there.

He told them it would be against the law to serve them.

Mr. Watts E. Davis: I would like to go back to that page 24, Mr. Justice Black, and follow that if we may of the language, the comptroller, both Pizitz -- I believe his name is Mr. Gotlinger who was testifying at the time and this was cross-examination.

And Mr. Hall is asking Mr. Gotlinger, what some other person said?

What Mr. Pizitz, Dick Pizitz, the assistant -- I believe the assistant of the president.

He said, “What did he tell them?”

He told them, “They couldn't serve there and we had facilities in the basement to serve them”.

He told them that it would be against the law to serve them there.

He told them it would be against the law to serve them there.

What law did he have in mind, do you know?

Answer - I don't know.

Question - He didn't say it was against the (Inaudible) policy to serve them there and this is the key.

He used the term we cannot serve you here.

Question - And you assumed that he meant it that it was against the law?

I assumed that.

So all of these there is --

Justice Hugo L. Black: Mr. Davis.

Mr. Watts E. Davis: Yes sir.

Justice Hugo L. Black: Do you suppose that any merchant in Birmingham even if he hadn't been there as long as he possessed the store there.

He didn't know it was against the city law to serve white and colored together.

Mr. Watts E. Davis: Mr. Justice Black, it's my sincere thought on this matter that the ordinance never comes in to the thought process.

Justice Hugo L. Black: I understand that but is there --

Mr. Watts E. Davis: I can make a confession --

Justice Hugo L. Black: How can anybody think in Birmingham just live there and knows it but Mr. Pizitz's store all these years didn't know that it was against the law to serve them together.

That may be legal.

You may have a right to do it legally but how could anybody be assumed not to know it when it was on the books and that -- when its been the practice since time immemorial.

Mr. Watts E. Davis: Well, of course I'll say this, I believe there are some 40 odd years and I have never heard of it being enforced.

Justice Hugo L. Black: Well, you've only heard of it being enforced because it was obeyed.

Mr. Watts E. Davis: That's a possibility.

Justice Hugo L. Black: But certainly it's not obeyed, its just hadn't been (Voice Overlap) --

Mr. Watts E. Davis: But I think it was obeyed long before it became an ordinance.

Justice Hugo L. Black: The merchant wouldn't dare to break it even if he wanted to, wouldn't he?

Mr. Watts E. Davis: Well, I think it goes back to the question of which comes first, the chicken or the egg.Wasn't that the custom existing at the time the ordinance went into effect so there was no occasion for any change.

But I would say this to his honor and I'm a little bit ashamed to admit it, I was only with the city attorney's office a few months when this case came up.

I didn't know there was such an ordinance on that book and I didn't think there was and when Mr. Hall got into this question, he'd been shooting constitutional objections in every direction.

I thought this was another one of these generalized objections that segregation was an issue.

He had no city code on his hand.

He was citing it --

Justice Hugo L. Black: You hadn't been a merchant running a restaurant, merchants running a restaurant know who can they serve and who they can't.

Mr. Watts E. Davis: Well, let's get back if I may to the basic question that I think is basic in this question -- in this whole controversy.

First, what were the issues in this case?

We filed a complaint charging one thing that they trespassed after warning.

They concede that in each case the evidence shows --

Justice Hugo L. Black: Yes, but it (Voice Overlap) --

Mr. Watts E. Davis: -- that they didn't.

Justice Hugo L. Black: But they hadn't trespassed after warning.

They would've been -- if the man had not warned them, it could've been against the law from -- to go in there and sit there.

Mr. Watts E. Davis: Well, we have a void ordinance which we concede is void.

I've never known of the thing -- a case yet --

Justice Hugo L. Black: Well, the merchant --

Mr. Watts E. Davis: -- before (Inaudible) come in.

Justice Hugo L. Black: A merchant can't be put at the risk of having -- saying that maybe they'll hold it void for him to set up against the validation.

Mr. Watts E. Davis: I --

Justice Hugo L. Black: I personally do not see how in this case, it's possible to say for anybody to reach a conclusion in a matter of this importance that this merchant acted because he wanted to rather than because it was against the law.

As far as I'm concerned, I see no answer to that thing.

Mr. Watts E. Davis: Well, I think there is --

Justice Hugo L. Black: Now, I see a great difference.

I don't misunderstand it.

I see a great difference for myself when a merchant deciding he doesn't want to sell to somebody.

I don't care what the ground is.

Deciding he won't sell them and not sell them.

And having a law that tells him he can't sell them and then say, “Well, because of his own choice he didn't sell them”.

Mr. Watts E. Davis: Well, Mr. Justice Black, my answer to that is this.

You of course are familiar with the locality of Birmingham and --

Justice Hugo L. Black: (Voice Overlap)

Mr. Watts E. Davis: You know that there's an abundance of attorneys down in the City of Birmingham and notwithstanding this whole expression you can't fight City Hall.

You know that many of them down there do fight City Hall and if they wanted to for a moment --

Justice Hugo L. Black: Many of them fight City Hall on this issue?

Mr. Watts E. Davis: On this issue?

Justice Hugo L. Black: On this issue.

Mr. Watts E. Davis: No sir, but many others and if the merchant wanted to bring this thing ahead and see what their rights were, well I think it would've been very long ago.

But again, I think it goes back to the question that custom preceded the ordinance and the ordinance didn't bring on any occasion whereby they should change that custom but we concede that the ordinance was invalid --

Justice Tom C. Clark: Well, in any case --

Mr. Watts E. Davis: -- theres no issue on that.

Justice Tom C. Clark: In any case, you have the State putting a person in jail.

What was the sentence here?

Was it prison?

Mr. Watts E. Davis: Oh, 30 days --

Justice Tom C. Clark: (Voice Overlap)

Mr. Watts E. Davis: Yes.

Justice Tom C. Clark: Any -- can either case whether it's the proprietor doesn't like Negroes in his store or whether the city ordinance says that he shan't serve.

In either case you have a state putting a man in prison because he is a Negro shopping in a certain place, isn't that right?

Mr. Watts E. Davis: Well, no sir.

I don't think so.

He's put in jail because he trespassed after he was told he was not to remain there --

Justice Tom C. Clark: No, that's a matter as to (Voice Overlap) --

Mr. Watts E. Davis: -- which he actually admit, which (Voice Overlap).

Justice Tom C. Clark: (Inaudible) managed as to --

Mr. Watts E. Davis: But -- what the point is, and I don't think we have yet touched the basic point in that in the City of Birmingham's case.

Justice Tom C. Clark: Do you think a retail store is like a man's home.

Mr. Watts E. Davis: Very definitely.

I think there are some factual differences certainly.

But as far as the law and the powers out of the constitution are concerned, we think private property is private property whether it's in your home, whether it's in your office or whether it's in a small store or big store.

But the prime question that I think is of importance for this case is, what were the issues?

Justice William O. Douglas: I suppose if you're right on that then what you do would be to use the constitution to drive the wedges of segregation deep into all of our society.

Mr. Watts E. Davis: No sir.

I construe the constitution as a limitation of power and not some affirmative instrument to use to do positive things but a limitation upon the states not to give anybody --

Justice Tom C. Clark: (Voice Overlap)

Mr. Watts E. Davis: -- positive power.

Justice Tom C. Clark: But if you can use private property in this way and what you will do would be to use it to -- in a constitutional way to engraft segregation as the way it wanted.

Mr. Watts E. Davis: Well, some people use the word segregation, some use the expression of racial discrimination.

I prefer the (Voice Overlap) --

Justice Tom C. Clark: Constitutional Clause versus Equal Protection.

Mr. Watts E. Davis: Yes, I further think that racial discrimination of a different sense, racial choice or racial selectivity.

I know that an Irish man prefer Irish man or at least I've heard that, I'm not Irish.

I know there's a Chinese community in our hometown.

Justice Tom C. Clark: But you get a different problem when you go to a judge and say, “Put this man in jail because he violated my prejudice”.

Mr. Watts E. Davis: No sir.

No sir.

I don't think its prejudice.

It's a personal taste.

I'm told by responsible neighbors, they have segregation among themselves in our city.

You say -- some people have feeling, I think that the Negroes don't prosper in the South.

Well, I can assure this Court in my hometown they have beautiful residential districts and I feel right ashamed when I see some of their Cadillac's, new ones and I have a 10-year-old automobile.

That's the rule and not the exception to the rule that I make to this Court.

But the issue we're getting out here is how was this case tried out in the state court?

To me, it was just another lawsuit.

We filed a complaint saying, “Well, you didn't leave when you were asked to”.

Trespass after warning, a simple city ordinance.

They came along and they filed a motion to strike the complaint.

Supreme Court decided authority and two cases have been in this Court, one is (Inaudible) versus Birmingham and the other, Taylor versus Birmingham.

A motion to strike in this type of action which is a quasi civil action does not serve the purpose to attack the validity or the sufficiency of the complaint.

They don't say that it does.

They -- haven't taken an issue with that proposition.

The motion to strike went out the window whether they come along with the next, to set demurs in this case.

The Court of Appeals in Alabama said two things, first, they were all general and we have a code section, this issue must file a specific demurs specified forth in the complaint you're objecting to and not be general.

The Court of Appeals said every one of those were general.

In addition to that, they raised certain constitutional objections, they said, “As applied to this defendant, this press -- this ordinance does so and so and so”.

Well, the Court said, “That was a speaking demurrer because it required evidence”.

It didn't appear on his face how it was going to affect a particular defendant.

They took evidence.

That was a speaking demurrer.

They haven't denied that that was -- or claimed that that was an erroneous ruling.

So what do we normally come to than a plea of general issue?

There they trespassed after warning.

Isn't that the only question we had in the trial court?

We're charged they did, they say, “We didn't.”

Now they come along and say all but the city was negative state action.

Under what theory are we required to make it if anything?

They drew the boundary lines in this dispute.

They didn't file a form or any special plea.

They brought up nothing of that nature that the Court could adjudicate.

This Court in Hill versus Mendenhall, about -- in 88 U.S., announced the fundamental question of pleadings, pleadings apprise the party on the Court of the facts and issue, the Court that it may declare the law in the parties that they may know what to meet by their proof.

And here, we're sitting here with the general issue to how they say, “Well, you can take judicial notice”.

They're asking the lower court to act as counsel.

When they say that -- judicial notice is not a substitute for pleading if I may (Voice Overlap) --

Chief Justice Earl Warren: Do you require pleadings in a criminal case?

Mr. Watts E. Davis: Yes sir, but these are quasi civil.

Chief Justice Earl Warren: But do you say -- yes, but do require pleadings?

Mr. Watts E. Davis: Yes sir.

Chief Justice Earl Warren: What is -- what are the pleadings that you require?

Mr. Watts E. Davis: Pardon?

I think its quasi criminal but --

Chief Justice Earl Warren: I beg your pardon.

I didn't --

Mr. Watts E. Davis: Mr. Breckenridge was saying, this is case is quasi criminal and you asked the question what pleadings are required in criminal cases.

Chief Justice Earl Warren: Well, its criminal when you go to jail, isn't it?

A violation of the law --

Mr. Watts E. Davis: Not under the Alabama decisions interpreting these matters Your Honor.

Justice Hugo L. Black: You mean not under the labor legislative?

Mr. Watts E. Davis: Pardon sir?

Justice Hugo L. Black: You mean not under the labor legislative but these are cases, are they not, if a man can be sent to jail for prison for six months?

Mr. Watts E. Davis: Yes sir.

Justice Hugo L. Black: And fined how much?

Mr. Watts E. Davis: Yes sir.

A hundred dollars.

Justice Hugo L. Black: $100.

Mr. Watts E. Davis: $100 and 180 days.

Justice Hugo L. Black: Tried first in the city policeman.

Mr. Watts E. Davis: I don't contend that they're not penal.

They're punished.

Chief Justice Earl Warren: They're not criminal law you say?

Mr. Watts E. Davis: Under the Supreme Court decision in the State of Alabama, they are quasi criminal.

The rules of civil proceedings apply on appeal.

Your civil rules apply.

They must assign error and argue if the Court of Appeals is going to hear it on the Supreme Court.

Chief Justice Earl Warren: What effect does a plea of not guilty have?

What issues does it brace?

Mr. Watts E. Davis: The general issue is --

Chief Justice Earl Warren: In a case of --

Mr. Watts E. Davis: -- they didn't do it.

Chief Justice Earl Warren: In a case of this kind.

Mr. Watts E. Davis: They didn't do it.

Chief Justice Earl Warren: Well, they can enter, yes, but what issues can be raised under the plea of not guilty.

Mr. Watts E. Davis: Oh, the question that they didn't do the act complained of then the complaint --

Justice Hugo L. Black: What is that -- what is required as I understand it, it used to be was that the State or the city proved its case beyond a reasonable doubt every element in it.

One element if you were trying to trespass after warning would be rule beyond a reasonable doubt that the owner of his own choice not because he had a gun in his bag had directed the man to leave, so that would be an issue in the case, wouldn't it?

Mr. Watts E. Davis: If it were brought up by a plea or a defense what --

Justice Hugo L. Black: We are not guilty.

Mr. Watts E. Davis: Well --

Justice Hugo L. Black: Not guilty claims (Inaudible).

Mr. Watts E. Davis: If I may say this, Mr. Justice Black, I think you're going in -- to watch the defense to this trespass saying all we're involved is, it is proving that he did put the ordinance --

Justice Hugo L. Black: Yes.

Mr. Watts E. Davis: -- that says you must not do.

Justice Hugo L. Black: But the ordinance is based on the principle I suppose that he was ordered by the owner of his own choice with his own knowledge making up his own mind not to stay there, isn't it?

Mr. Watts E. Davis: Well, I would assume that someone wants to tell him --

Justice Hugo L. Black: Suppose they didn't do that?

Supposed you have to charge --

Mr. Watts E. Davis: Pardon?

Justice Hugo L. Black: -- if you believe from the evidence in this case on the plea of not guilty.

Do you believe from the evidence in this case that the owner did not himself do this because he wanted to do it but because there was a man standing behind him with a gun in his bag?

They asked to charge it then.

There was evidence to that effect, could you convict?

Mr. Watts E. Davis: I think once you prove the simple fact, he was told to leave the premises and didn't --

Justice Hugo L. Black: You could --

Mr. Watts E. Davis: -- the State has carried its burden and then the defense takes over.

Justice Hugo L. Black: You could convict even though the evidence showed beyond the shadow of a doubt that the man had a gun in his back when he did it that somebody telling him, “You've got to do this”?

Mr. Watts E. Davis: You have to tell him to get off the premises?

Justice Hugo L. Black: Yes.

Mr. Watts E. Davis: No sir that would not be a voluntary act.

Justice Hugo L. Black: Well, it's the same thing is it not, always been recognized if the law tells you that you can't do something.

Mr. Watts E. Davis: Well, you're assuming of course that they acted under this invalid law and I am assuming that --

Justice Hugo L. Black: I'm not assuming.

Mr. Watts E. Davis: (Inaudible) we hadn't filed a charge.

Justice Hugo L. Black: I'm assuming that the State has to show that they acted and they exercised their own judgment and their own choice in ordering him to get out.

And what you have here is that there's a law standing there, they have them in debate that if they don't order them to get out there, they'll go to jail themselves.

Mr. Watts E. Davis: Well, as I interpret Your Honor's question or statement, it looks like that the State in prosecuting any case, somebody shoot somebody else, they don't have to show that it -- they voluntarily did it, they're going to have to show that they were not insane that the State has got the negative ever defensive element.

Justice Hugo L. Black: But they get --

Mr. Watts E. Davis: But this is purely defensive I think what is on (Voice Overlap) --

Justice Hugo L. Black: That's true beyond a reasonable doubt in every allegation but that doesn't include that allegation I think to that ordinance.

Mr. Watts E. Davis: Oh, the allegation simply says that he failed to refuse after being warned (Voice Overlap) --

Justice Hugo L. Black: Well, it would certainly be a bad ordinance wouldn't it if it was based on the fact that the owner did that because the law told him to.

That would be a bad order, wouldn't it, void?

Mr. Watts E. Davis: Well, I think the ordinance is telling he's got to make that election as bad and void, yes sir.

Justice Hugo L. Black: That would be void?

Mr. Watts E. Davis: Yes sir.

And I think (Voice Overlap) --

Justice Hugo L. Black: I think that -- that's an essential element as that he did it himself, not because the State made it, I would think.

Mr. Watts E. Davis: Well, if that were the law that in every case and I'm not a prosecutor that you probably guess, I'm a land attorney --

Justice Hugo L. Black: Well, (Voice Overlap) --

Mr. Watts E. Davis: -- in the City of Birmingham.

But I don't think the law places any burden on the prosecution to come along in negative every possible defense it may creep into a situation.

As I see this, this is a defensive matter and you'll notice in the discussion plea, Mr. Hall and the Court -- Mr. Hall says first, “That if the had not gone in to Pizitz's store and Mrs. Pizitz have not told them to get out the store”, and that's on page 24 and 25.

He says, “We wouldn't be here”.

And the Court says, “Well, is there any (Inaudible) between you and the city on this?”

In other words if Pizitz hadn't told them to get out, well, they wouldn't have been prosecuted and he says, “I don't know”.

Then the Court says this, “In the issue in this thing whether they trespassed after warning”.

And he said, “I think so Mr. Hall”, the petition for counsel -- counsel for petitioners.

Then the Court says one other thing, “Well, isn't that issue, isn't that the thing that you mean?”

And what did he say, “It certainly is Your Honor”.

So how could we be more doubly sure of what we're trying in this case?

What the issues were?

How we were to fix the boundary lines of the dispute and not only by the pleadings but by the admission of the counsel himself that the boundary lines are -- is -- has there been a trespass committed?

Isn't that the issue?

Isn't that the thing which is the main --?

Justice Hugo L. Black: After warning.

Mr. Watts E. Davis: Pardon sir?

Justice Hugo L. Black: After warning.

Mr. Watts E. Davis: Yes sir.

Yes sir.

Justice Byron R. White: Well, is there a -- anything said (Inaudible)?

Are you saying that the rules of procedure applicable to this kind of a proceeding required the defendant to affirmatively -- to raise this sort of a defense based on the Constitution?

Mr. Watts E. Davis: Oh, very definitely, very definitely.

Justice Byron R. White: And that if he raised it in a proper form, are you saying that he had the burden of carrying that defense?

Mr. Watts E. Davis: Well, it's a matter that he had searched.

He has that burden of proceeding with it at least.

Justice Byron R. White: And what was the burden on the -- what degree of proof is the case subject to in this kind of a proceeding, beyond a reasonable doubt or is it just a preponderance of the evidence or what is it?

Mr. Watts E. Davis: It is beyond a reasonable doubt but may I say this at this point?

They have cited the Thompson versus Louisville case and of course the Garner case and we would like to join them in citing those two cases.

The rule that this Court enunciated and as I recall correctly in Garner was that the test is not the sufficiency of the evidence before the trial court but whether there was any evidence before the trial court.

They concede the evidence is positive in each case.

The employee of a store ordered them the premises.

So we have no issue there really.

Justice Byron R. White: Did the Court of Appeals get in considering the exclusion of the evidence that was excluded --

Mr. Watts E. Davis: No, it was not argued.

It's mentioned in the Court's opinion that they had five assignments of error which they must -- if they had to rely on them, assigned as error and argued.

The fifth, what it was, some question about evidence.

I believe it was in the evidence sufficed the prejudice, that's my recollection but it appears in each case, the assignment of errors.

But they didn't even argue that.

They didn't argue any question of evidence, whatever in the case.

They simply argued that demonstrations were -- that there were demonstrations, there were symbols of communications or symbols of something rather.

And if you know, the Court took off on one or two of those arguments.

But the only thing they argued before the Court of Appeals was the overruling of the -- and they didn't argue this, they've cited this error.

You're reeling a motion to strike complaint that emerged and they file this motion to exclude the evidence, a motion for new trial.

And that -- unless this motion excludes the evidence, may I say this, this question of state action gets into it.

If you'll notice, there are 8 grounds, grounds 2, 3, 4, 7, and 8 say this if I may point out to the Court and invite your attention to them.

I think on page 6 you'll find the first one in the Gober case (Inauidble).

In five of those grounds, they say it's not the policy of the City of Birmingham or the State of Alabama.

They say it's the policy of the customer and the usage of (Inaudible) or whatever particular department store was involved that has deprived them of their Fourteenth Amendment yearns.

The other three grounds, they don't attribute to fall through -- direct in accusing things as to anyone but that simply was a confirmation as I view it and what the simple issue was in the trial court in the first place, did they or didn't they trespass after somebody told them to get off the premises.

And we had no other question and they didn't bring that up until they got to this Court.

But the local counsel, there were five of them who were experts in this matter.

You will notice that motion to exclude the evidence five times of the eight grounds they assert.

It says it was the policy of the store or the policy custom in usage of the store, or the custom or the preponderant number of department stores in the City of Birmingham that deprived them of their rights.

So we were not arguing any constitutional issues in this thing.

But since they brought them up, I think right here, the local counsels directs them to the policy of the stores themselves as confessed with the State and the city.

It fairly -- clearly answers the question.

Chief Justice Earl Warren: Is your position that the federal questions were not adequately raised below?

Mr. Watts E. Davis: Not raised at all sir.

Well, adequately perhaps is a better way to put it but in the demurrers they were not properly raised in a motion to strike, that doesn't even lie and there had been two cases from Alabama for this Court, the (Inaudible) versus Birmingham and Taylor versus Birmingham where the petition for certiorari was denied that's involved.

And then after the evidence was taken now we went to issue on that several question.

After the evidence was there and they come along and filed a motion to exclude the evidence never suggesting that the evidence was sufficient in any way.

They simply say the evidence shows that these stores were exercising these policies.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Watts E. Davis: Well, I recall that in --

Justice Arthur J. Goldberg: Is that the motion (Inaudible)?

Mr. Watts E. Davis: Which ground?

Please sir, you --

Justice Arthur J. Goldberg: Well, look at page 12 of the record.

Mr. Watts E. Davis: Yes sir.

Justice Arthur J. Goldberg: And the judgment of the Court granted below (Inaudible) each defendants had the evidence in this case, the evidence to go on the specific there is -- this ruling, to overrule the objection and then on (Inaudible).

Is that properly raised the issue to (Inaudible) the case?

Mr. Watts E. Davis: I would not think so.

The case had already been tried at this point Your Honor.

Justice Arthur J. Goldberg: But you didn't try it yourself.

First, in the (Inaudible) pleadings been demurred and then (Inaudible) into evidence.

And was it to exclude evidence that (Inaudible) reference to constitutional issue?

Mr. Watts E. Davis: Constant reference, yes sir.

Yes sir, they were constantly referring to constitutional proposition but not once did they come in with a formal plea or a special plea as this Court has said in the Mendenhall -- Hill versus Mendenhall.

How would any lawyer know how to prepare a case if they were not to have pleadings?

Chief Justice Earl Warren: You consider -- you may finish that answer.

Mr. Watts E. Davis: Yes sir.

Chief Justice Earl Warren: Mr. Davis, you may continue your arguments.

Mr. Watts E. Davis: Thank you sir.

May it please the Court.

One other question which was injected into the controversy here and I say here because I respect to submit it was never injected under the controversy in the state courts.

Was this question a police action?

As I mentioned earlier in Alabama, you assigned to their appellate courts your errors that you wish the Court to consider.

Now the Supreme Court rules specifically state that if you don't assign them or don't argue them they won't consider those grounds.

But these acts considered -- are injected into the thing by appellate counsel and not by a local counsel in the state courts.

But it has been injected under the thing here which I don't think it's a proper forum for it without the Court having first had a chance to rule on it.

They bring up the question how the arrest were effectuated and brought about.

Again, I say that the plea was a simple general denial.

Had we known that this was one of the channels that they wanted to proceed on by the pleadings then we would have brought the police records to Court?

We could have mastered up the complaint records.

We could have looked for witnesses to say or to find out who made this report to the police.

The police didn't come there through some form of mesmerism.

Someone initiated this thing but it was not upon us to explain that situation under a simple general issue in this matter.

Chief Justice Earl Warren: Well, we've had a good many of these sit-in cases where the police did initiate it and we had to reverse it for that reason.

Mr. Watts E. Davis: Well, I think that would be the problem, right.

Chief Justice Earl Warren: So, it is a mesmerism, that's a (Voice Overlap) --

Mr. Watts E. Davis: I think that would be a proper action.

But I think this that we've got to try the case within the framework of the pleadings.

We can't shoot mugshot in every direction and hope one will hit here and one will hit there.

Going back to your Hill versus Mendenhall case, the fundamental principle of pleadings is to define the issue so the Court may declare the law and the parties may know what to meet by their proof and agreement.

But in any event, the petitioners themselves, elicited from the officers who were testifying that for us who's in possessed, when the arresting officer arrived, he or his superior is talking with people in the store presumably witnesses who had seen this thing, getting information and they directed the arresting officer to make the arrest.

They brought it out also that in Laughlin's, one of the officers through cross-examination, one of his superior officers have been told that two of these volunteers have been told to leave and refused.

So it -- there was a duty on him to make an arrest.

An ordinance had been violated.

And in the case of (Inaudible) they -- I think as they have brought it out in the trial court, Mrs. Evans, the (Inaudible) manager told the officer she had told the two boys to leave and they refused and that in his presence she told them.

So in the presence of the officer, the offense was committed.

But I say again and I hope the Court would adhere to its rulings.

It has adopted in the past that these matters which are not before a state court will not come up here for a first hearing.

In other words, not let them come here to try the case.

Chief Justice Earl Warren: Mr. Davis, may --

Mr. Watts E. Davis: Yes sir.

Chief Justice Earl Warren: May I ask if in your -- if in your brief, you have cited the statute which compels a special pleading in this case to raise these questions?

Mr. Watts E. Davis: Yes sir, its Title VII.

Chief Justice Earl Warren: It's in your brief is it?

Mr. Watts E. Davis: Yes sir.

Chief Justice Earl Warren: Well, if it's in your brief, that's all.

Mr. Watts E. Davis: And it relates to civil cases and I also spell out that these are quasi criminal cases that all your rules of evidence that which apply in civil cases apply in quasi criminal cases to appellate rules that apply into civil cases apply in quasi criminal cases.

It is a civil proceeding.

Now the Court of Alabama whether rightly or wrongly is held that an offense against the city ordinance does not rise for the dignity of a crime whether that is its philosophy in this matter, I don't know.

They don't go into it.

Chief Justice Earl Warren: This isn't an ordinance.

This is a state law, isn't it?

Mr. Watts E. Davis: Well, this is a city ordinance they were prosecuted on this.

Chief Justice Earl Warren: Oh yes, yes, I remember.

Mr. Watts E. Davis: City of Birmingham's ordinance.

Chief Justice Earl Warren: Yes.

Mr. Watts E. Davis: But in any event, this Court have said --

Justice Hugo L. Black: That may be the rule --

Mr. Watts E. Davis: (Voice Overlap)

Justice Hugo L. Black: -- to which you referred in your brief, I --

Mr. Watts E. Davis: Pardon sir?

Justice Hugo L. Black: You said there was rule in your brief about the --

Mr. Watts E. Davis: It's the code section in volume -- in Title VII.

Justice Hugo L. Black: Well, that is cited in your brief here?

Mr. Watts E. Davis: Yes sir, yes sir.

Justice Hugo L. Black: Well, if you don't know, that's alright, I'll find it.

Mr. Watts E. Davis: But it is Title VII and I think its 235, let's see -- Court of Alabama, 225.

I copied a portion of it on page 5 --

Justice Hugo L. Black: Page 5.

Mr. Watts E. Davis: Or at least I make a reference to it at that point.

I think it's in Shuttlesworth case perhaps it was that I copied part of it.

But --

Justice William O. Douglas: (Inaudible) the best way to present the evidence that he offers being (Inaudible) at the department store?

Mr. Watts E. Davis: He went into the policy of other stores, I recall and I think the Government suggested that is being tantamount to an attempted to show the city ordinance.

I made the objection that the policy of the other stores would not be involved.

He was going not in Birmingham where this case came up but into other areas and I think the courts there it was and perhaps erroneously I won't comment on it, that policy had nothing to do with it.

Unknown Speaker: (Inaudible)

Justice Hugo L. Black: It was suggested, wasn't it?

Mr. Watts E. Davis: I believe he said, aren't we trying -- a question here whether he violated this ordinance.

But I think they brought nothing before the Court in the nature of a formal plea to suggest these things.

Justice Hugo L. Black: May I ask you what kind of special plea would have been filed to raise the issue of that -- this man did not do this because of his own choice but because the law forced him to do it?

What kind of plea?

I -- probably it's been changed since I was there, that I do not recall.

Mr. Watts E. Davis: Well, it would just be a plea setting up affirmatively these defensive matters for that they exist in the City of Birmingham, an ordinance that define this Section so and so and that it was in compliance with this ordinance as the storeowner operate -- made this request to leave or direct them to leave.

And so we'll put it in issue.

Justice Hugo L. Black: You mean that the burden of proof would have been put in him on the Alabama law to prove that the man actually gave the order of his own choice?

Mr. Watts E. Davis: I don't conceive the choice is an issue.

The ordinance says, if a man tells you to get off his property, you must leave.

If you don't, you violate the ordinance.

If that's the ordinance as Your Honor is thinking of.

Justice Hugo L. Black: Well, what you are saying is that a man -- whether the man did it because the law compelled him to do it or whether he did it because he wanted to, it would be immaterial to prove any crime.

Mr. Watts E. Davis: What's the defensive matter, may I submit?

Justice Hugo L. Black: Defensive matter, that would be -- the burden would be put on him.

Mr. Watts E. Davis: That's right sir.

But he hasn't even put it in issue.

Irrespective of whose burden it is, it's not even an issue in this case.

Justice Hugo L. Black: Have you cited any cases to that effect with reference to (Voice Overlap) --

Mr. Watts E. Davis: I cite a case to this Court.

Justice Hugo L. Black: The defendant --

Mr. Watts E. Davis: I cited --

Justice Hugo L. Black: -- affirmatively proving on his part that which is an essential element of the crime if assuming it shows an essential element of the crime.

Mr. Watts E. Davis: Well, Your Honor perhaps I made this mistake.

I assume that it was not a question for the State.

To me, it's something to a plea of contributory negligence.

I assume this Your Honor on a theory (Voice Overlap) --

Justice Hugo L. Black: (Voice Overlap)

Mr. Watts E. Davis: -- an enemy.

Justice Hugo L. Black: You don't plea it contributory negligence down there to cases where the people had --

Mr. Watts E. Davis: No, what I'm -- speaking of the same general situation.

Justice Hugo L. Black: I suppose they'd be sent to jail for six months.

Mr. Watts E. Davis: No sir, but basically you have the affirmative matter and defensive matter.

You're the defendant in this thing --

Justice Hugo L. Black: I thought, our court there stopped very tenaciously to the idea that the business of Government whether it's a city or state to prove guilt beyond a reasonable doubt.

Mr. Watts E. Davis: Proved that he committed the act charged.

Justice Hugo L. Black: Beyond a reasonable doubt?

Mr. Watts E. Davis: Yes sir, yes sir.

Justice Hugo L. Black: Well, you wouldn't just have to prove that he shot somebody.

You'd have to prove he shot him with malice and deliberate -- deliberation and so forth.

He wouldn't have to plead any of that would he, as a defendant?

Mr. Watts E. Davis: Well, I don't know but I am --

Justice Hugo L. Black: (Inaudible)

Mr. Watts E. Davis: I don't know that I'm a 100%, the Court decided on that proposition though it's not exactly the question here.

Justice Hugo L. Black: What about an alibi, does he have to plead especially an alibi?

Mr. Watts E. Davis: No sir, because he pleads not guilty which means I didn't do it and if I can show that I was somewhere else at the time then certainly the jury can assume using his common experience as a common sense but if he was somewhere else he's sure didn't do it.

Justice Hugo L. Black: Well, what he means when pleading guilty -- not guilty here of course this might be a state problem but I'm just interest -- I have to confess my interest to it, what he is charging is, I'm not guilty of -- he may say, I'm not guilty of being there.I'm not guilty of staying there or you may say I'm not guilty of staying there after the defendant -- after the owner of the property because he wanted to, not -- it's not because the State made him, ordered me to leave.

Mr. Watts E. Davis: Well, our position is that he simply says, “I'm not guilty of what you say I did”.

Now we say he did on -- there were two elements to what we say he did.

Number one, he was on the premises, he was told to leave.

But number two, he refused to leave.

Justice Hugo L. Black: Supposed he'd been told to leave by a man who came in from the street.

Mr. Watts E. Davis: Well, they don't say that that was a fact.

They concede that --

Justice Hugo L. Black: Of course it was.

Mr. Watts E. Davis: -- before he did it.

Justice Hugo L. Black: Suppose it was.

Suppose it was.

Mr. Watts E. Davis: I think I mentioned in my brief that if that situation existed, I didn't feel like the ordinance had been violated.

But again --

Justice Hugo L. Black: You think the ordinance had been violated?

Mr. Watts E. Davis: I would not think so and I mentioned that in my brief.

Justice Hugo L. Black: Oh, you weren't -- oh, I thought you were.

Mr. Watts E. Davis: Yes sir.

I said that in my brief.

I didn't think it can be violated but they make no such contention in this case.

Chief Justice Earl Warren: Mr. Davis, you cite your Alabama Code 1940, Title VII, Section 225 and you quote as follows - “The defendant may plead more pleas than one without unnecessary repetitions.

And if he does, not rely solely on a denial of the various cause of action.

It must plead especially the matter of defense”.

Now that sounds to me more like a civil proceeding than a criminal proceeding --

Mr. Watts E. Davis: Well --

Chief Justice Earl Warren: Does this specifically apply to criminal cases?

Mr. Watts E. Davis: It is -- we might suppose that that particular Code Section applies by its own language to civil cases.

Chief Justice Earl Warren: To civil cases?

Mr. Watts E. Davis: Yes sir.

In our brief, we have developed its application to this case.

Chief Justice Earl Warren: Well, what -- is there any case that holds that this are -- these civil rules apply to criminal cases?

Mr. Watts E. Davis: Rules of evidence.

We don't have a whole field of law on --

Chief Justice Earl Warren: Is there any one case that you cite?

Mr. Watts E. Davis: Not -- no sir.

No sir.

But under even criminal law if you wanted to come in and say the defendant was insane, you would put it in a plea of insanity.

But If you want to plea there was an involuntary act where he's charged with perhaps murder, you want to show this involuntary act.

You'd have to show something.

You admittedly did it, it's more like a confession and avoidance, really.

You admit you did the act that say you did what?

And then we avoid the act even in criminal law.

Justice Hugo L. Black: Well, have you have a --

Mr. Watts E. Davis: That this happens to fall in a civil case.

Justice Hugo L. Black: The elements of first degree murder down there are (Inaudible) -- premeditated killing with malice aforethought.

Mr. Watts E. Davis: That's right sir.

Justice Hugo L. Black: Do you mean that --

Mr. Watts E. Davis: It's presumed from the homicide --

Justice Hugo L. Black: That he does -- well, I'm not talking about what's the inference they could find from evidence that it was done with malice aforethought but do you mean that the burden is on the defendant to show the didn't do it with malice aforethought?

Mr. Watts E. Davis: Of course, the burden is on him, yes sir.

Well, I'd say this is a presumption.

When I throw a weapon and I fired it to the man, they don't have to go beyond that and say, “Oh, but in his heart, his heart was black, he intended to do it”, while the evidence speaks for itself but if I want to show that somebody dropped me with something or has turned me into a pinch of insanity through some process, I would come along and set that up as a defense but certainly the State isn't going to say that all of these various defenses didn't happen --

Justice Hugo L. Black: But all of these --

Mr. Watts E. Davis: -- because they would never their case.

Justice Hugo L. Black: If it's a question -- of course, it maybe too far from this but if -- but I have as to the -- if it's a question of showing and it was done with deliberation and malice forgetting the words presumption, the Court always charges a jury, doesn't it?You must find from the evidence that he did it deliberately and with malice aforethought and find it beyond a reasonable doubt --

Mr. Watts E. Davis: I think that's (Inaudible) --

Justice Hugo L. Black: -- without regard to pleading.

Mr. Watts E. Davis: I think that's even in the indictment, yes sir.

So I think they have to -- they generally will show some motive involved with it.

Justice Hugo L. Black: My -- I would like to come back if I could to my question.

Assuming that you asked for those to file a special plea and assuming that the State's proof was sufficient to withstand the motion for instructed burden of not guilty, would it be permissible for the defendant in examining -- in putting on his testimony to offer the proof that he said he wanted to offer with reference to Mr. Pizitz's policy.

Mr. Watts E. Davis: Assuming that it was a proper form of plea or injected in to -- that in a proper issue, I think so.

Justice Hugo L. Black: I mean, assuming that he did not raise it by plea at all --

Mr. Watts E. Davis: Yes sir, assuming (Voice Overlap) --

Justice Hugo L. Black: Just like in cases here.

Mr. Watts E. Davis: Yes sir.

Justice Hugo L. Black: And that he was supposed to raise it.

The law required him to raise it, you'll say.

And that your proof or the State's proof was sufficient to go to the jury, could he in rebutting your proof of trespass on this, I guess you would have to prove that it was a trespass, wouldn't you?

Mr. Watts E. Davis: Yes sir.

That he remained after he was warned to leave.

Justice Hugo L. Black: Now assuming that in common colloquy, we told that you met a prima facie proof in a civil action.

Mr. Watts E. Davis: Yes sir.

Justice Hugo L. Black: I suppose it's not any such thing as criminal action.

And you went -- you were able to go to the jury on that.

Could he request that prima facie proof by offering proof that you tendered as I understand it on page 25 that Mr. Pizitz will assume had no such policy of segregation and that he wanted these people here, indeed he has indicted them to come in.

Mr. Watts E. Davis: I think if he of course have put it in a form of a plea or any pleading as to it.

Justice Hugo L. Black: I mean suppose he didn't plead it.

Mr. Watts E. Davis: No sir.

Then I quoted to it.

Justice Hugo L. Black: The evidence wouldn't be admissible.

Mr. Watts E. Davis: I'm certain not in Alabama.

Justice Hugo L. Black: The judge didn't go off on that ground.

Mr. Watts E. Davis: I beg your pardon.

Justice Hugo L. Black: The judge didn't go off on that ground.

He said it was immaterial.

Mr. Watts E. Davis: Well, what he said was as I understood it, it was that the witness who was an employee of a store, his knowledge of the law was not competent really and later on he (Voice Overlap) material.

Justice Hugo L. Black: Mr. Pizitz's policies in the Court on 25, Mr. Pizitz's policy would not be material as I conceive this.

That's what he said.

Mr. Watts E. Davis: Well --

Justice Hugo L. Black: If that were true, it looks like to me that he would have said that you didn't plead this or the evidence is not admissible.

Mr. Watts E. Davis: Well, I think the Court was right in this particular instance where it was not made an issue and they had the right to drew up the boundary lines on this dispute.

They have (Inaudible) -- they had been in more of these cases than I have.

Justice Hugo L. Black: That wouldn't be meeting your burden of showing a trespass.

I wouldn't be trying to meet your burden -- I mean trying to counteract your burden, your proof.

Mr. Watts E. Davis: No sir.

We only had two elements to prove.

One, they were told to leave and two, they refused and the only burden on the State -- on the city.

Because they didn't file any plea -- they filed all sorts of other things, very extensive pleadings but elected to go to issue on the general denial.

Chief Justice Earl Warren: Where can we find any discussion in any cases of the Supreme Court of Alabama or in any textbooks on the requirement to file special pleas in criminal cases in your State?

Mr. Watts E. Davis: In criminal cases.

Chief Justice Earl Warren: In criminal cases, yes.

Mr. Watts E. Davis: Your Honor, we have in the code, forms of pleas to file any criminal cases.

I think they assume that --

Chief Justice Earl Warren: Well, why don't you cite them in your brief instead of citing this as a general language such as there is in 25 --

Mr. Watts E. Davis: Well, I stopped to the civil rules which we contend that this case comes under it and the Court of Appeals cited cases.

It's in the opinion of the lower court, (Inaudible) versus State, that --

Chief Justice Earl Warren: And that's the only time that such thing has been discussed in the history of Alabama?

Mr. Watts E. Davis: No sir.

I've cited two cases this morning where on appeal, your civil rules apply (Inaudible) versus State came to this Court on petition for certiorari.

Senator Glen Taylors case versus City of Birmingham came to this Court.

The petition for certiorari was denied.

But it said in all of those cases, these things follow civil rules in Alabama, civil rules.

They had another case before this one that came to this Court where the civil rules in the record that didn't get to certain questions (Inaudible) --

Chief Justice Earl Warren: And that is because you call it a quasi criminal --

Mr. Watts E. Davis: Well, I never have really liked the word quasi criminal, how much is quasi?

I don't --

Chief Justice Earl Warren: Well, that's what I was wondering because Justice Black was asking you about a first degree murder case and you said that there, there would have to be a special pleading.

So is that under the civil rules too?

Mr. Watts E. Davis: No sir, I'm sure not.

I think you cannot --

Chief Justice Earl Warren: What set of rules (Voice Overlap) --

Mr. Watts E. Davis: -- under said common law rule under the same rule enunciated by an earlier court hearing in Hill versus Mendenhall that -- the part of is that it would be applied in what the issues are. The courts got to know it.

Justice Hugo L. Black: Have you read the case of Leland versus Oregon.

Do you happen to read it in studying this case where we held up the question as to whether they could put the burden of proof on the man to prove insanity in the Court -- majority of the Court held that they could in an insanity because it had always been done but pointed to the fact that this Court have held that this Government -- Federal Government must prove every essential element of a crime.

Mr. Watts E. Davis: Well, I think we must prove every essential element of the fact.

Justice Hugo L. Black: You think that -- there's no -- is there a difference, maybe I haven't quite understood.

Is there a difference in your mind the pleadings required on an appeal from the Recorder's Court which this was, wasn't it?

Mr. Watts E. Davis: Yes sir, yes, Your Honor.

Justice Hugo L. Black: Is there a difference in your mind as to the pleadings a defendant is required to put in, in a case in the Recorder's Court where he's been convicted of a defense like this --

Mr. Watts E. Davis: Yes sir.

Justice Hugo L. Black: -- to the rules that apply if he was charged with a state crime or misdemeanor?

Mr. Watts E. Davis: I think generally, the same rule is applied but the courts have specifically stated that these cases are a quasi criminal case.

Justice Hugo L. Black: Well, I understand that because I (Voice Overlap) --

Mr. Watts E. Davis: I agree with you despite --

Justice Hugo L. Black: I don't know what that means.

Mr. Watts E. Davis: Yes sir.

I don't see but two basic differences in making a quasi criminal and not civil.

One is that in civil, of course, the motion exclude the evidence won't apply it, must be a motion for the affirmative charge.

There's another time at the time, it slipped through my mind but there's no real basic difference that I see in our pleadings down there.

Justice Hugo L. Black: I suppose that he has also proved that it was not a trespass to that.

Mr. Watts E. Davis: Well, they should approve either one or two things.

They weren't asked to leave or when they were asked, they did leave but they concede that those conditions existed and we met that burden of proof.

Justice Hugo L. Black: Well, wouldn't that be true with reference truth and that Mr. Pizitz did not want them to leave.

He was acting under state's requirement of law.

Mr. Watts E. Davis: Of course Mr. Pizitz himself didn't ask that somebody who was simply quoting him and saying what he assumed Mr. Pizitz meant in this thing.

Justice Hugo L. Black: Oh, what I mean, they offered to prove as I understand it (Voice Overlap) --

Mr. Watts E. Davis: But they had put in a plea of state action, certainly, they would have been able to come in and establish that.

Justice Hugo L. Black: Well, I mean just in meeting your burden.

Your burden must be proved that there was a trespass.

It was up to them to prove there wasn't a trespass.

That's what you say.

Mr. Watts E. Davis: In essence, yes sir.

Justice Hugo L. Black: Now, in trying to prove that there was not a trespass, it would have been appropriate for them to offer proof that Mr. Pizitz instead of ordering them out indeed wanted them to stay.

But -- and now read -- told them to go out because it was the State law.

Mr. Watts E. Davis: Well, I would've said that, it would've been a very good false value -- it had Mr. Pizitz up there and testified to that and prior to that it could have pleaded to that effect and let the Court know that that was an issue in this case as well as the question did they or were they in fact ever told to leave and did in fact leave after they were told to.

Those were the two issues that were there.

They could have put the other issues in and in fact, I think it would have been advised to bring Mr. Pizitz to say, “Well, I want them to sit at the lunch counter.

I'd like to have them here.”

But this confound the city ordinance which I know is invalid (Inaudible) but that isn't in this record.

Justice Hugo L. Black: Well of course, practically speaking, I suppose it would be from a -- was on a persuasive argument against construing the ordinance in such a way that the guilt or innocent could be determined in an unknown hidden motive which prompted the man to give the order, wouldn't it?

That is -- that couldn't be a very satisfactory way, was it?

I'm not saying that you haven't advocated that.

Mr. Watts E. Davis: No sir.

Justice Hugo L. Black: I'm just thinking about that as a rule of law.

Mr. Watts E. Davis: I -- I'm not completely clear on what His Honor had referenced to --

Justice Hugo L. Black: What I mean is this.

Suppose it does depend on -- so as you have to prove whether he did it for one reason or another.

The only way you could do that would be to prove someway of what was in his mind (Voice Overlap) --

Mr. Watts E. Davis: Proof of mental operation, a mental operation.

Justice Hugo L. Black: That would be a pretty difficult that --

Mr. Watts E. Davis: I think it would be.

Justice Hugo L. Black: Sometimes the law resorts to that but not unless it has to do, does it?

Mr. Watts E. Davis: Yes sir.

The mental operations, I think we'd get into a rather dangerous (Inaudible).

Chief Justice Earl Warren: Well, Mr. Davis, suppose you had a simple assault with a deadly weapon case and the State proved that the defendant used a wrench let's say and assaulted a person with it and then arrested.

That would incorporate all the things that are ordinarily necessary in order to prove an assault with deadly weapon, wouldn't it?

Mr. Watts E. Davis: Yes sir.

Chief Justice Earl Warren: Now, do -- if the -- suppose if the defendant wants to prove self-defense, is he obliged under your law to file a special pleading?

Mr. Watts E. Davis: Not in writing, it's my impression in the criminal side.

Chief Justice Earl Warren: Well, do these rules make a distinction between writing and orally?

Mr. Watts E. Davis: Well, the pleadings must be filed in writing exactly speaking --

Chief Justice Earl Warren: Well, why didn't you differentiate between them?

Mr. Watts E. Davis: I don't know on the criminal level that's why I went to some extent to point out these things were civil in my brief because I think that rule -- we've traveled pretty much on the common law in the criminal cases.

We simply prescribed the forms of pleas in criminal cases if you want to put them in issue.

Self-defense I think is just a matter of argument and of course it's -- it would -- I don't think it would even require a plea because the events means that he did it without some provocation.

In other words, its negative in its sense -- in itself, the self-defense.

Chief Justice Earl Warren: But don't you get right back the same thing here (Voice Overlap)?

Mr. Watts E. Davis: I don't think so.

Chief Justice Earl Warren: Will you prove that he was told to leave and he doesn't leave?

He says there was a reason other than a lawful reason as to why this man put me off his property?

Mr. Watts E. Davis: Well, I --

Chief Justice Earl Warren: Isn't that equivalent?

You said a little while back that it was equivalent criminal contributory negligence.

Well now, why isn't that just as much a plea under the general issue as self-defense?

Mr. Watts E. Davis: Your Honor, I can't answer your question in all of these fringed areas.

I will just answer -- I admit I can't.

Chief Justice Earl Warren: That's fine.

Justice Arthur J. Goldberg: Mr. Davis ask you this?

You refer to your ordinance which is in the record at page 58, would it not be a violation of your ordinance as agreed on its face or any of these defendants to have refused to leave after being warned by the police independently of what the storeowner said?

Mr. Watts E. Davis: I would not go that far personally sir.

Justice Arthur J. Goldberg: But doesn't the State -- doesn't the ordinance say that?

Mr. Watts E. Davis: It said that after being warned, I think we have to assume it comes in our Code out of the chapter heading of trespass and of course trespass assumes that there is a proprietary address and I don't know how we could assume that the police officer had any proprietary interest.

Justice Arthur J. Goldberg: Except the --

Mr. Watts E. Davis: Heading of trespass.

Justice Arthur J. Goldberg: Except the ordinance itself does not require the warning to be by the owner.

Mr. Watts E. Davis: I think by implication, you'd have to construe it that way and its context as a trespass ordinance.

Someone in possession or some agent, designee or a servant of the person in possession or at least Mr. Pizitz's greater -- must be greater than the customer who is directed to leave.

Justice Arthur J. Goldberg: In other words, what you're saying here is that the ordinance doesn't say so but it would have to be construed that way.

Mr. Watts E. Davis: I think he would have.

Justice Arthur J. Goldberg: But wasn't the complaint here based upon the ordinance and the complaint itself also didn't say anything about the owner.

So isn't the non-guilty plea then putting an issue -- all that was put in an issue by the complaint?You refer to the complaint?

The complaint also doesn't say who did the warning but just says after being warned not to do so.

Mr. Watts E. Davis: Well, that follow the language of the ordinance after --

Justice Arthur J. Goldberg: Yes.

Mr. Watts E. Davis: -- being warned.

Justice Arthur J. Goldberg: So from the standpoint of the pleadings going back to the point which we have been discussing, didn't the not guilty plea put an issue to everything that the complaint alleged.

Mr. Watts E. Davis: That's right sir, yes sir.

And if someone other than a person in authority had ordered them off, that would be an issue.

We must prove that they were warned and I think it goes without saying that a proprietary address must be involved in that person warning.

Justice Arthur J. Goldberg: Well, must you prove then that they were warned and in fact ordered off by the defendant and not by the State -- by the owner and not by the State?

Mr. Watts E. Davis: No sir.

I think the evidence showed that these were employees which they concede.

They have never denied that.

They don't raise the issue to some stranger or some policeman ordered them off the premises.

And I don't think the officers could order them off.

They took the reports after talking with the people there.

Chief Justice Earl Warren: Very well Mr. Davis.

Mr. Watts E. Davis: Thank you sir.

Chief Justice Earl Warren: Mrs. Motley.

Rebuttal of Constance Baker Motley

Ms Constance Baker Motley: Mr. Chief Justice, I think the controlling consideration is whether the court below or the highest court of the State which could have rendered an opinion or did render an opinion, considered and disposed of the constitutional issues which we are here presenting to this Court.

And on page 61 of the record, the Court in the last paragraph of its opinion says, “Counsel has argued among other matters, various faces of constitutional law particularly as affected by the Fourteenth Amendment of the Federal Constitution such as freedom of speech”, in regard to which counsel state, “What has become known as a sit-in is a different but well-understood symbol, meaningful method of communication”.

And the Court says, “Counsel has also referred to cases pertaining to restrictive covenants.

We consider such principles entirely inapplicable to the present case.”

And on page 60 of the record, they point out that they can consider in this type of proceeding because the civil rules govern on appeal, the matters raised and argued in the brief.

And so --

Chief Justice Earl Warren: Where does that appear on the -- on the page, was it --

Ms Constance Baker Motley: In brief for counsel -- in brief, counsel for appellant argues that the complaint is insufficient -- is insufficient and not setting forth -- I'm sorry, that's not it.

Here, it's on page 59.

Chief Justice Earl Warren: 59.

Ms Constance Baker Motley: This being an appeal from a conviction for violating a city ordinance.

It is quasi criminal in nature, and subject to rules governing civil appeals.

Accordingly, we will limit our review to errors assigned and argued in appellant's brief.

And of course, this is cited in number of Alabama cases.

Justice Hugo L. Black: Does that mean that in -- I think maybe it does that in criminal cases now, what they call criminal state cases, they're not required to file assignments of their own.

I'm sure that's true with capital cases.

Is that the distinction that this opinion is drawing?

Ms Constance Baker Motley: Well, I really --

Justice Hugo L. Black: (Voice Overlap)

Ms Constance Baker Motley: I really don't know.

Justice Hugo L. Black: -- this is appeal from the Recorder's Court, they're not required to assign error?

Ms Constance Baker Motley: Well, it appears if that's what they mean that all you have to do is to raise certain -- well, accordingly, we will limit our review to errors assigned so that errors were assigned --

Justice Hugo L. Black: And argued in the brief.

Ms Constance Baker Motley: -- and argued in appellant's brief.

Justice Byron R. White: As a matter of fact, (Inaudible)?

Ms Constance Baker Motley: That's right.

And these matters and particularly the Fourteenth Amendment questions was certainly assigned as error and argued in our brief and considered by the Court and disposed of by the Court.

Justice William J. Brennan: (Inaudible) that even if by (Inaudible) future points it makes.

And in fact the Supreme Court paid no attention in considering everything that should be raised in the pleadings (Inaudible) where we don't have the before us.

Ms Constance Baker Motley: That's right Your Honor.

Justice William J. Brennan: Procedural right of error.

Ms Constance Baker Motley: That's right Your Honor.

Justice William J. Brennan: But that was -- the Court said not to consider the -- there was no issues as to that (Inaudible).

Ms Constance Baker Motley: Yes, and on that point, we say you have the statute which says that the Court must take judicial notice --

Justice Byron R. White: But the court didn't.

Ms Constance Baker Motley: -- but it didn't.

But this Court can take judicial notice of --

Justice Byron R. White: (Inaudible)

Ms Constance Baker Motley: Yes.

We've cite it in our brief.

Justice William J. Brennan: (Inaudible)

Ms Constance Baker Motley: Yes, I believe it is.

Justice Byron R. White: Then it wasn't (Inaudible) in the Court that they entered.

Ms Constance Baker Motley: Our petition for cert -- I'm sorry, I believe --

Justice Byron R. White: (Inaudible)

Ms Constance Baker Motley: -- in our petition for cert.

Justice Byron R. White: What would be then (Inaudible)?

Ms Constance Baker Motley: Yes.

Yes.

Well, what I'm saying is that here, the Court was required by the State law to take judicial notice of this ordinance and --

Justice Byron R. White: (Inaudible) like to say that, (Inaudible) Court said that no issue about the ordinance that was made.

An issue has been raised and that the appeal to introduce to the Court (Inaudible) will be required judicial notice to say that issue (Inaudible)?

Ms Constance Baker Motley: Well, I think really, we did more than that.

We said it to the Court, our whole defense is the ordinance and I think that when we said that, we were saying everything that we were required to with this kind of proceeding to advise the Court and the other side of what our theory was.

Justice William J. Brennan: (Inaudible)

Ms Constance Baker Motley: And --

Justice William J. Brennan: -- into pleadings in the state court of Alabama that you challenge the ordinance?

Ms Constance Baker Motley: In the brief, I believe they did mention it because the Court itself says that it was not raised by a pleading.

You're here arguing it but it wasn't raised by a pleading.

That's the way they treated it.

Justice William J. Brennan: But did they in fact consider it?

Ms Constance Baker Motley: Well, they considered it in the sense that they said, “Here, you are arguing it and you didn't put it in a pleading.

We think it should have been raised by a plea.”

Justice William J. Brennan: (Inaudible)

Ms Constance Baker Motley: That's right but then they -- as to that ordinance.

But then they went on to decide that this case was not governed by the restrictive covenant cases.

And the only reason we're assigning the ordinance was to show that there was state action and violation of the Fourteenth Amendment.

But again, even if the ordinance were not involved here, we would still be properly before this Court on Shelley against Kraemer because there was this massive state policy of racial segregation which we say compel the owner to put these people out and the State cannot escape responsibility for that.

Justice John M. Harlan: I would like to ask you two questions.

From your brief in the Supreme Court, did you raise specifically the exclusion or the alleged exclusion of inquiry respecting the State ordinance, the city ordinance?

Ms Constance Baker Motley: I don't recall.

Justice John M. Harlan: As error, did you raise that as error?

Ms Constance Baker Motley: Just a moment.

I don't believe it was Your Honor raised as such.

Justice Potter Stewart: Were they -- the assignment of error into the --

Ms Constance Baker Motley: The exclusion of the test of the evidence after --

Justice John M. Harlan: That's -- I'm talking about the brief.

Ms Constance Baker Motley: In the brief?

Justice John M. Harlan: In the brief.

It was not raised (Voice Overlap) --

Ms Constance Baker Motley: Now, that I don't have a copy of -- with here so I can't answer that with definiteness that it was so raised.

Justice John M. Harlan: I wonder with the permission of the Chief Justice you would leave a copy of the brief in the Supreme Court.

Ms Constance Baker Motley: Yes, we will.

We'll try to get a copy of the brief that was presented in the Supreme Court of Alabama.

Now, I wanted to point out with reference to a question asked me earlier by Mr. Justice Goldberg.

There was in the record a stipulation that the rulings made in the first case would apply to all other cases and that appears on page 106 of the record and on page 122 of the record.

Not just the pleadings were to be the same but the rulings which he has made in the first case were the rulings in the other cases and that's why they didn't again raise that question as to the ordinance.

Unknown Speaker: (Inaudible)

Ms Constance Baker Motley: 122, 106 and 122.

And as I‘ve said before in closing, this ordinance was just a part of a massive state policy here of racial segregation and the owner was influenced and compelled by this policy to refuse service to these petitioners at this counter.

And the State bears full responsibility for the owner's exclusion where they specifically relied on the ordinance or not because here was a state policy which compelled them to exclude these people from the counter.

And we say that for this reason, the Fourteenth Amendment is clearly violated here and the State certainly cannot escape responsibility until such time as it takes affirmative action to change that policy such as has been done in other Northern states by the enactment of civil rights laws.

I think the influence of the states designed to set up a segregated society as what is controlling here.

Justice William J. Brennan: (Inaudible) exclusion to fill up (Inaudible) City of Birmingham.

Ms Constance Baker Motley: Yes they are sir, they are.

They're not like the other cases where the policy has been abandoned.

Justice Potter Stewart: I didn't quite understand your last point.

You -- if the State of Alabama and all its municipality should repeal all statutes and ordinances which requires segregation, you'd still be making your arguments.

You'd say the State would have to go further and perhaps pass a suit -- pass a legislation requiring integration before you --

Ms Constance Baker Motley: Well, I think if those laws were repealed with the understanding and a preamble to the repeal that this was done to do away with state enforced segregation --

Justice Potter Stewart: Right.

Ms Constance Baker Motley: -- we have a different situation.

But as long as the State's policy is there on the books, this is the thing which we say influences discrimination in a public place of this kind whether the statute or ordinance specifically says department store or drugstore or whatever the situation maybe that the State's policy is there.

And that's the operative consideration which makes the person exclude you.

And until the State chose some affirmative change in that policy, that influence is still there, we'd say.

Justice Potter Stewart: But I didn't get and I still don't quite Mrs. Motley was your reference to affirmative legislation requiring non-segregation.

Ms Constance Baker Motley: Well, what I have in mind is that here, Alabama has not.

Justice Potter Stewart: As there is -- of course there's much to that legislation in the various states, (Voice Overlap)?

Ms Constance Baker Motley: That's right.

Alabama in this case has not required equal treatment of Negroes in places of public accommodations as this Court in deciding the civil rights cases assumed that the states would.

I remember the civil rights cases, they said, we assumed that the states would protect you against this.

Well, this isn't true in Alabama and these other states.

The States of course has done just the opposite and they have done it in a massive way so that the whole society is set up on a segregated basis.

And this influences the determination of businessman in the State.

And we say that the State in order to get away from or escape responsibility for this enforced segregation would have to do something more affirmative than it has now up to this point.

It does not protect us against the policy which it has set up.

Featured:

Peterson v. City Of Greenville - Oral Argument, Part 1

Tue, 25 Sep 2012 22:37:31 +0000

Case:

Peterson v. City Of Greenville

Media File:

71_19621106-argument-1

Related Transcript:

71_19621106-argument-1

Transcript:

Argument of Matthew J. Perry

Chief Justice Earl Warren: Number 71, James Richard Peterson, et al., Petitioner, versus City of Greenville.

Mr. Perry.

Mr. Matthew J. Perry: Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the Supreme Court of the State of South Carolina.

The case involves principally the question of whether a state may arrest and convict petitioners of trespass where they sat at a white lunch counter in a business open to the general public and where a city ordinance required the policy of excluding Negroes to be enforced.

But the City of Greenville, South Carolina has an ordinance which is codified as Section 31-8 of the Code of the City of Greenville and which is reproduced in our brief at pages 2 and 3 and is in the record at page 49 which provides that any person -- it shall be unlawful for any person owning, managing or controlling any hotel, restaurant, café, eating house, boarding house, or similar establishment to furnish meals to white persons and colored persons in the same room, at the same table, or at the same counter.

And providing, however, that meals may be served to white persons and colored persons in the same room where separate facilities are furnished.

The ordinance then proceeds to describe the manner in which the facility shall be made separate.

S.H. Kress and Company is a large nationwide chain and it has a store in Greenville, South Carolina which caters to the general public including Negroes and the sale of more than 10,000 items.

However, Kress' as is -- in the case and other localities also has a food counter from which it excludes Negroes in obedience to local custom and in further obedience to the ordinance to which we have just referred.

Justice William J. Brennan: It's a counter with seats though, wasn't it (Voice Overlap)?

Mr. Matthew J. Perry: That's correct sir, yes sir.

Justice William J. Brennan: But that -- it's just a counter, it's not a restaurant or --

Mr. Matthew J. Perry: It's a lunch counter.

It's not a separate restaurant --

Justice William J. Brennan: With table --

Mr. Matthew J. Perry: It's not a separately enclosed restaurant, it's a lunch counter which has about 59 stools or seats placed adjacent to the counter.

Now, the custom to which I have just referred will be discussed later in this presentation.

On August 9, 1960, about 14 young Negro citizens went into a Kress store in Greenville, South Carolina and seated themselves at the lunch counter.

They seated themselves there and very shortly thereafter, Captain Bramlett of the Greenville City Police Department received a call by way of the radio at his police headquarters that there was -- there were some young colored boys and girls seated at the lunch counter around the Kress'.

This was the message that he received and according to the -- to his testimony, it was upon this -- receipt of this information that he and other officers proceeded to the Kress premises.

When he arrived at the Kress premises, he and the officer who rode with him met some other officers on the outside of Kress' and together, they went into the rear door and they found the young colored boys and girls seated at the lunch counter.

The lunch counter here is situated just inside the rear door and of course, as soon as they entered the store, they saw the young Negroes seated at -- sitting at the counter.

Now, there was Captain Bramlett and another patrolman from his office and when they arrived there, they found Officer Ohilia (ph) of the South Carolina Law Enforcement Agency also present and a number of other officers were in and about the premises.

Officer Ohilia (ph), a member of the South Carolina Law Enforcement Agency later testified that he works directly under Chief Strom of the South Carolina Law Enforcement Division who likewise or who also works under Governor Hollings, the Governor of the State is the Chief Officer then of the South Carolina Law Enforcement Division.

And the testimony is that the presence of Officer Ohilia (ph) on these premises was for the purpose of giving assistance to the local police.

But he also testified that his presence in any situation more or less reflected the attitude of the officer or the governor.

These young people were told later that the lunch counter was closed.

As a matter of fact, Captain Bramlett of the Police Department testified that shortly after his arrival, he heard Manager G.W. West, the manager, the local manager of Kress' state to everyone that the lunch counter is closing.

That Manager West then turned the lights out over the lunch counter and that thereafter when the young Negroes refused to leave, he, Captain Bramlett announced to all of them that they were under arrest.

Chief Justice Earl Warren: When they refused to -- by -- when they refused to leave, do you mean that they just didn't leave or was there anything sent to them by the management at that time?

Mr. Matthew J. Perry: There was nothing further said to them by the manager.

The --

Chief Justice Earl Warren: Handed anything --

Mr. Matthew J. Perry: They --

Chief Justice Earl Warren: -- up to this time, have they?

Mr. Matthew J. Perry: That is correct sir.

The petitioners merely declined to move.

And the testimony was that they sat there for a total of about five minutes and that Captain Bramlett and the other officers escorted them out and placed them under arrest.

Justice Byron R. White: Did they arrest everyone who was still there?

Mr. Matthew J. Perry: The evidence is that only the Negro petitioners were arrested.

However, there is also evidence that some white persons remained seated after the lunch counter was closed.

Now, Mr. West, the store manager stated that the white persons left also.

Chief Justice Earl Warren: All of them?

Mr. Matthew J. Perry: This was his testimony.

Of course, the -- there is evidence in the record which contradicts the testimony of Mr. West on that point.

Other witnesses testified that white persons kept their seats.

They remained seated and that of course only the Negro petitioners were arrested.

Four of the young people who were arrested were under the age of 16 and their cases were referred to the Juvenile and Domestic Relations Court of Greenville County.

The persons who were tried in the Municipal Court of the City of Greenville were found guilty of trespass and were given sentences of $100 or 30 days.

Their convictions were later upheld by the South Carolina Supreme Court.

The record here clearly shows state action which was prohibited by the Fourteenth Amendment.

I should like to state the items upon which we rely as constituting state action in this matter.

First of all, there is a statewide custom of racial segregation which is generated by state law.

South Carolina schools are segregated all the way from the elementary schools through to the college and university stage.

Negroes and whites may not work together in the same room in textile industries.

Circuses and travelling shows must provide separate accommodations for spectators.

Persons serving in prisons and chain gangs are required by South Carolina law to be segregated.

Steam ferries and railroad cars are required by law to provide separate facilities for whites and Negroes.

Station restaurants must provide racially separate facilities.

Street cars are required by law to do the same thing

It is a crime in South Carolina to give a white child to a Negro.

Intermarriage between the races is prohibited.

Justice Potter Stewart: I didn't understand that, it's a crime to do what?

Mr. Matthew J. Perry: To give a white child to a Negro.

Justice Potter Stewart: To give a white child --

Justice John M. Harlan: Adoption, you mean?

Mr. Matthew J. Perry: To give custody of a white child to a Negro.

Justice Potter Stewart: I don't -- I still don't understand that (Voice Overlap) --

Mr. Matthew J. Perry: Of course, the statute is cited in our brief.

Justice Potter Stewart: Alright.

Mr. Matthew J. Perry: And we respectfully call the Court's attention to that statute.

Justice William O. Douglas: You mean, hiring --

Chief Justice Earl Warren: You still have a --

Justice William O. Douglas: -- hire Negroes as babysitters?

Unknown Speaker: (Voice Overlap)

Mr. Matthew J. Perry: No sir, it does not cover the babysitter area.

Justice Potter Stewart: Oh, what is it?

I suppose it's a -- that's to give your child away to anybody, isn't it?

Mr. Matthew J. Perry: Well, of course in South Carolina there is a specific statute which goes beyond the -- any general law which covers this situation by further making it crime to give a white child to a Negro --

Justice Potter Stewart: Well, I suppose it's not vital to this case, of course, it was my curiosity.

Mr. Matthew J. Perry: Intermarriage between the races is prohibited.

All South Carolina parks are segregated by law.

The City of Greenville, South Carolina has an ordinance requiring racial segregation and that is in residential areas.

And of course, lastly but not the least, there is Section 31-8 of the Code of Greenville which requires segregation in eating establishments.

Unknown Speaker: How about the --

Justice Potter Stewart: Is there any of -- excuse me.

Have any of these statutes or ordinances been tested in litigation?

Mr. Matthew J. Perry: The packets of legislation which requires segregation in South Carolina parks is now the subject of litigation pending in the Eastern District of South Carolina.

The City of Greenville's ordinance which requires residential segregation is likewise the subject of both a civil action designed to have it declared unconstitutional.

And also one or more persons have been arrested under its penal provisions and appeals from the convictions which were obtained under this ordinance are now pending in South Carolina state courts.

As to the other clause, which are under question, of course the court is aware of the decision which accompanied this Court's rules -- ruling in Brown versus Board of Education, one of the cases was called Briggs versus Elliott which came from South Carolina and declared South Carolina's constitutional provisions which required racial segregation unconstitutional.

However, the constitutional provision itself nor the statutory provisions which were enacted pursuant to this constitutional provision have been repealed so the laws are still outstanding on the books and in fact schools are still segregated.

Justice Potter Stewart: Hundred percent?

For that?

Mr. Matthew J. Perry: 100%, that's correct.

Litigation is now pending on that particular subject in South Carolina.

Justice William O. Douglas: Whatever happened to that South Carolina case that was up here when we decided Brown versus the Board of Education?

Mr. Matthew J. Perry: One phase of it is now pending (Voice Overlap) --

Justice William O. Douglas: The same case?

Mr. Matthew J. Perry: Yes sir.

Justice William O. Douglas: Yes.

Mr. Matthew J. Perry: Well, no sir.

Since that time, a new case has been filed by reason of certain reorganizations of School Districts in Clarendon County.

The name of that suit is Brunson versus Board of Trustees of Clarendon County and the phase of that litigation is now pending in the Fourth Circuit Court of Appeals.

I believe that that would cover the court decisions which have been made with reference to the laws which I have mentioned and the litigation which is now pending in reference to them.

Another item of state action that we rely upon in this matter is that the independent action by the police in this matter in arresting the petitioners when their only crime was sitting at a white lunch counter was a state action which we think was prohibited by the Fourteenth Amendment.

And lastly, the conviction of these petitioners and their sentencing in South Carolina state courts.

The petitioners were -- of course, were convicted of the crime of trespass and of course this statute is set forth in petitioner's brief at page 2.

So that the evidence is that though petitioners were convicted of the crime of trespass -- in the name of the crime of trespass, they were in fact convicted of violating the segregation policy of the City of Greenville and of the State of South Carolina as is reflected by the ordinance which makes it a crime for white persons and Negroes to be given food accommodations in the same room unless those provisions are settled.

If, as the manager testified, H.S. Kress and Company maintained the policy of segregation because of the ordinance, then there could be no other conclusion than that the city by the ordinance and by arrest and criminal conviction has placed its authority behind discriminatory treatment based solely on color and we respectfully say that this is precisely what the record shows.

The manager testified at page 23 in the record in response to a question which was posed to him on cross-examination.

“Mr. West, why did you order your lunch counter closed?”

His answer was, “It's contrary to local customs and it's also the ordinance that has been discussed.”

Justice Potter Stewart: Where is the prior discussion of the ordinance?

Is that in the record?

Mr. Matthew J. Perry: There is quite a discussion on it which appears on pages 10 and 11 of the record in the cross-examination of Captain Bramlett of the Greenville City Police Department.

The question, “Does Greenville have an ordinance against conduct of this sort?”

His answer was, “We do.”

And over on page 11, “What is that law that police served?”

Answer - “It forbids colored and the white eating at the same lunch counter.”

Justice William J. Brennan: Was that formally (Inaudible) necessary to your procedure?

Mr. Matthew J. Perry: It is necessary in our procedure.

Justice William J. Brennan: It is not?

Mr. Matthew J. Perry: It is necessary sir.

Justice William J. Brennan: It is, yes.

Mr. Matthew J. Perry: But the court excluded this item of evidence under the theory that it had nothing to do with the issues before the court.

Justice William J. Brennan: Where does that appear?

Mr. Matthew J. Perry: At the -- it appears a number of places in the record.

Justice William J. Brennan: Well, I mean -- I gather what you're saying is you made a formal offer of it in evidence and that --

Mr. Matthew J. Perry: Yes sir.

Justice William J. Brennan: -- the offer was refused?

Mr. Matthew J. Perry: That is correct.

Justice William J. Brennan: Can you tell me where that appears?

Mr. Matthew J. Perry: Very good, sir.

Justice William J. Brennan: Don't waste -- you can give it to me later.

Mr. Matthew J. Perry: Alright, that's very good sir.

It was mentioned on pages 10 and 11, however --

Justice William J. Brennan: Yes.

Mr. Matthew J. Perry: -- at the end of the trial, an offer was made and of course the court ruled this line of evidence out.

Perhaps later in my discussion I can refer the court to the exact page.

Thank you, sir.

Justice Arthur J. Goldberg: We, of course, didn't mean to interrupt you.

Mr. Matthew J. Perry: Thank you, sir.

Justice William J. Brennan: Yes, that Section 31 (b) is amended, right?

Mr. Matthew J. Perry: That's a misprint, 31-8 as amended.

Now, these petitioners' arrests and convictions then result directly from the segregation command of the City of Greenville and not from any individual or corporate business decision or preference of the management to exclude Negroes from the lunch counter.

The City of Greenville determined that the petitioners' conduct would be unlawful even if the department store consented to serve them at the lunch counter.

Justice John M. Harlan: What is the situation in Greenville now?

Mr. Matthew J. Perry: The lunch counter at Kress' is still segregated and it is my understanding that this policy still prevails throughout the Greenville community.

Justice John M. Harlan: As a matter of interest, are there any restaurants -- any restaurants of this kind that are -- become desegregated?

Mr. Matthew J. Perry: In Greenville or in South Carolina?

Justice John M. Harlan: South Carolina.

Mr. Matthew J. Perry: In Columbia, South Carolina, there are several stores including the Kress store located in Columbia.

Justice John M. Harlan: Are there ordinances there too making it --

Mr. Matthew J. Perry: No sir.

Justice John M. Harlan: None?

Mr. Matthew J. Perry: There are none.

So our contention is that by enacting first that persons who remain in a restaurant when the owner demands that they leave are trespassers and then enacting that restaurants may not permit Negroes to remain in white restaurants, the State of South Carolina and the City of Greenville have made it a crime, that is the crime of trespass for a Negro to remain in a white restaurant.

And we respectfully say that this contravenes the Fourteenth Amendment as has been so held in a number of cases by this Court.

May I save the rest of time please.

Chief Justice Earl Warren: You may.

You may.

Mr. Snyder.

Argument of Theodore A. Snyder, Jr.

Mr. Theodore A. Snyder, Jr.: May it please the Court.

Before getting into the legal issues, there's just one part of the factual statement by Mr. Perry that I would like to mention and that is the remarks he made concerning some of the testimony that it was testified by the store manager that prior to the time of the arrest, all of the white customers departed as a result of his request for everybody to leave the lunch counter.

One of the defense witnesses testified to the contrary that all of the white customers did not leave as a result of the manager's request.

That presented squarely to the court below, to the trial court and to the -- a question of facts to be decided in the case and it is to be decided by the trial court on those facts that the white people did leave at the request of the manager.

Now, that holding by the trial court, we submit, is conclusive upon this Court because it is amply supported by the facts in the case.

Now, getting into the legal issues, there seemed to me to be perhaps three basic issues in this entire case.

The first thing you have to get to when you discuss these cases at all is the question of not whether a person who runs a restaurant or any other kind of store has a right in the first analysis to choose the people with whom he would do business.

If he has no such right, then the whole thing is ended right there.

You have to resolve that issue first.

Now, let's look at the case here and see whether or not this retail store who, as a restaurant there, does have that right.

You have to go back to decide that first of all to the common law.

And you will find when you go back that there is no statute in the case which discussed this, so you have to rely on the common law.

You'll see what the rights of restaurant owners have been in the times has placed and you will find, when you examine that that shopkeepers and people who did business with the public in general had a right under the common law to choose, to select those people with whom they would do business.

And they have that as an absolute right.

Now, that rule was not without exceptions and we have to admit that.

The first exception and probably the most important exception as the case of innkeepers and you have to look at the facts or the rules, see why it was that innkeepers would treat it different and the facts that for the different treatment of innkeepers bring out the facts of life as they existed in England at time those rules grew up.

And they showed that as far as the innkeepers were concerned, that was tied in with travel in those times.

And that was the time when the roads were very poor, when travel was slow either by horseback or coach and you couldn't make much time.

There was also a time when law enforcement was not as good as it is now, and there were a lot of robbers in highways and we read about it in the novels at that time, who were prevalent on the highways.

So, that a traveler travelling alone had to have some sort of protection.

He had to have a place to rest his horses or his means of conveyance, get feed for them, and he also had to find a place to obtain provision for himself and the place of safety and comfort overnight during the time when it was hardly possible to travel.

So that made the reason for the distinction of innkeepers in the first place.

Now, the second class of things that grew up along with the (Voice Overlap) --

Justice William O. Douglas: Do you think those are relevant today?

Mr. Theodore A. Snyder, Jr.: I think they are relevant Your Honor.

I think it's relevant because it shows the reason why a proprietor has the right to select his customers.

Justice William O. Douglas: In the -- at a motel?

Mr. Theodore A. Snyder, Jr.: Yes sir.

I think that --

Justice Hugo L. Black: You mean a constitutional right to select his customers?

I don't quite understand myself why that's the primary -- where you have to stop, I just don't quite understand it.

Mr. Theodore A. Snyder, Jr.: Well --

Justice Hugo L. Black: Suppose it was a ruling of common law.

Common law in this country, every way I know of, it can be changed by statute,

Mr. Theodore A. Snyder, Jr.: Yes sir.

Justice Hugo L. Black: You have a constitutional question.

Mr. Theodore A. Snyder, Jr.: That's right.

Justice Hugo L. Black: And the -- I presume the constitutional question is whether the Constitution itself forbids what has been charged here.

Mr. Theodore A. Snyder, Jr.: That's correct.

Justice Hugo L. Black: So a -- the state cannot pass a law one way or the other.

Mr. Theodore A. Snyder, Jr.: That's right.

Well, I think (Voice Overlap) --

Justice Hugo L. Black: Well, are you sort of raising a question that the state couldn't pass the law, are you?

Mr. Theodore A. Snyder, Jr.: No, we're --

Justice Hugo L. Black: (Voice Overlap) forbids this discrimination.

Mr. Theodore A. Snyder, Jr.: The state could pass such a law but having passed a law, there is nothing in the Constitution which requires the state to force a storeowner to give equal treatment to all who would seek to purchase something properly.

Justice William O. Douglas: Well, that's the question before us.

Mr. Theodore A. Snyder, Jr.: Yes sir.

I think that's the question.

And I -- as I say there is -- there's nothing -- the Constitution places no affirmative duty on a state to see to it that an operator of a store offer his goods to all who would seek them.

The Constitution leaves that area open as far as the storeowner's choice except insofar as the Constitution does not prohibit a state from passing a law changing the common law situation which existed prior to the Constitution.

Chief Justice Earl Warren: Well, it does prevent your state from passing the law and that would prevent restaurant owners from showing equal protection to all people, does it not?

Mr. Theodore A. Snyder, Jr.: Yes sir.

That aspect --

Chief Justice Earl Warren: Alright, how do you explain your ordinance then?

Mr. Theodore A. Snyder, Jr.: I explained the ordinance under that by saying that the ordinance does not make state action.

Now, Your Honor, you referred to the Equal Protection Clause, that brings us in to the Fourteenth Amendment which is this -- the section of the Constitution that we are under in.

And under the Fourteenth Amendment, as I understand it and how I understand the decisions under it, some state action must have taken place which deprives a citizen of either due process or some life, liberty or property.

Chief Justice Earl Warren: Well, does not the ordinance do that?

Mr. Theodore A. Snyder, Jr.: The ordinance does not do that, in my opinion, Your Honor.

It (Voice Overlap) --

Chief Justice Earl Warren: What does the ordinance do?

Mr. Theodore A. Snyder, Jr.: The ordinance which I concede is probably unconstitutional under the decisions of this Court, placed an obligation on the storeowner, restaurant operator to maintain separate facilities with a division, either of space or a wall, as the case may be and to use separate utensils and facilities for the accommodation of the two races.

Justice John M. Harlan: What's the --

Mr. Theodore A. Snyder, Jr.: Now --

Justice John M. Harlan: What's the date of that?

When was the ordinance passed?

Mr. Theodore A. Snyder, Jr.: I do not have that, Your Honor.

But I -- and I understand that it has been on the books for sometime.

It was in the Volume of the Code of the City of Greenville which was passed in 1953.

It came out in 1954.

It was slightly amended and now appears in the pocket supplement as amended.

But its predecessor, which was substantially the same, had been there for some time to perform that.

Justice Hugo L. Black: I must have misunderstood you.

I thought you said -- I must have been wrong that the ordinance didn't constitute state action, did it?

Mr. Theodore A. Snyder, Jr.: I didn't mean to say that the ordinance didn't constitute state action.

I am saying that the ordinance in the circumstances of this case is not state action which deprives these petitioners of any federally protected right.

Justice Arthur J. Goldberg: Mr. Snyder, how can you say that in light of the testimony in this record, I know you're saying that you agree that the ordinance played no part --

Mr. Theodore A. Snyder, Jr.: Yes sir.

Justice Arthur J. Goldberg: -- in what took place.

But Mr. West when he was asked the question as why he ordered the restaurant -- the lunch counter closed, is that on page 23 of the record, it was contrary to the local custom and that also the ordinance that have been discussed?

Mr. Theodore A. Snyder, Jr.: Yes sir.

Justice Arthur J. Goldberg: You ignored that in your brief.

Now, what could be that?

Is it relevant to what you're discussing now?

Mr. Theodore A. Snyder, Jr.: I didn't attempt to ignore it.

I think that what he is saying is, first of all, what he said on direct examination that it was contrary to customs which was the orders from the store headquarters which order was made without reference to the ordinance in which he would've had to follow, whether this ordinance was here or not.

And secondly, the fact that there is confusion in this record, when he says -- it's also the ordinance that has been discussed.

If you look back to see what he's talking about when he said, “That's the ordinance that has been discussed”, you received it in the prior testimony, the witnesses have been referring both to this city ordinance and the state trespass law under which the petitioners were convicted as an ordinance and it's not clear to which one he was referring.

Justice William O. Douglas: Well --

Mr. Theodore A. Snyder, Jr.: We think that he was referring to the state law.

Justice William O. Douglas: I'd -- I was thinking about perhaps even a better answer because on page 59 of the record, your court says that the warrant did not charge a violation of the ordinance requiring segregation in restaurants.

Mr. Theodore A. Snyder, Jr.: That's correct, Your Honor.

The ordinance requiring segregation in restaurants does not punish people like the petitioners.

Its prohibition runs only against the storeowner.

Justice William O. Douglas: But whether or not it does, this -- your court on page 59 says that they were not prosecuted under that ordinance.

Mr. Theodore A. Snyder, Jr.: They -- I think that's correct, I don't know.

Justice Potter Stewart: But that's not the inquiry.

The inquiry is what motivated the manager of this store to tell these people to leave.

And he says it's because of the ordinance as been discussed.

That's the point.

It's not what these petitioners were convicted of violating, it's what motivated the manager of this store to tell them to get out.

And he said it's the ordinance that motivated him.

Mr. Theodore A. Snyder, Jr.: He said -- yes sir.

He -- in two parts, first this company's orders and --

Justice Potter Stewart: Local custom and this --

Mr. Theodore A. Snyder, Jr.: Yes.

And --

Justice Potter Stewart: -- company's policy to follow local custom --

Mr. Theodore A. Snyder, Jr.: And ordinance, and we say that --

Justice Potter Stewart: -- and the ordinance.

Mr. Theodore A. Snyder, Jr.: We say -- that when he said that the ordinance as been discussed, he is referring to the state trespass statute.

Unknown Speaker: How is that --

Justice Potter Stewart: How could that motivate -- excuse me.

Unknown Speaker: (Inaudible)

Justice Potter Stewart: That's right.

Unknown Speaker: (Inaudible)

Mr. Theodore A. Snyder, Jr.: It didn't only --

Unknown Speaker: Do you mean the right to his property?

Mr. Theodore A. Snyder, Jr.: That's right and that's -- I don't mean to say that it motivated him but aware that he had that right, he acted as he did.

If he has not been aware of that right, he might have taken some other act, could've done something different.

Justice William J. Brennan: (Inaudible) to me when we were referred at page 46 to the offer of the ordinance we're talking about, now, not the trespass one, but this one involving separate seating.

It was offered and the offer refused it, at page 59, your court says, Supreme Court says, “The ordinance was made a part of the record upon request of defendant's counsel.

The defendants were not charged with having violated any of its provision.”

Is that ordinance properly in the record?

Mr. Theodore A. Snyder, Jr.: I think it is.

Justice William J. Brennan: It is.

Mr. Theodore A. Snyder, Jr.: I think it was sort of incorporated in the evidence in -- for the purpose of allowing the petitioners to argue about it because they --

Justice William J. Brennan: The point then --

Mr. Theodore A. Snyder, Jr.: -- made that point.

Justice William J. Brennan: Then it is in the record for our consideration?

Mr. Theodore A. Snyder, Jr.: I think it is.

Justice William J. Brennan: Thanks.

Mr. Theodore A. Snyder, Jr.: Mr. Perry, in his argument, discussed the question of whether or not you have state action here as a result of state law and the custom behind that is generating a massive body and he cited all of these various statutes.

The biggest part of those statutes, however, are either dead well as for example the one is textile mills requiring various separate facilities in textiles.

That has never been enforced in any way.

The public library in the City of Greenville is operating on a completely unsegregated basis.

The bus and railroad stations are unsegregated and that there is no policy of segregation in them at all, likewise, the airports which is operating on a separate and independent thing.

So, we submit, first of all --

Justice Potter Stewart: What about giving your baby away?

Mr. Theodore A. Snyder, Jr.: That law, as I understand it, refers to either adoptions or cases similar to adoptions were the custody of a child might be placed with somebody by a court prior to adoption or placing a family or an orphan with somebody who wants to raise it up.

So, it would be also (Voice Overlap) --

Justice Potter Stewart: To the kind of a foster parent?

Mr. Theodore A. Snyder, Jr.: Yes sir.

Because as far as we do have a law which permits the indenture of (Inaudible), but I think that would be the same rule, you reach the question on custom where you consider that in addition to the fact that law was in effect won't support us to the custom, we submit can never have the force of law.

Custom is something that's too tenuous to actually be so strong as to be a law and to be state action in the case.

There's no way, we submit, for anybody who can be charged with violating the law to be charged with violating a custom as law.

The man that would be ex post facto, when I think, if a man were charged with a crime for example for violating a custom, how would he know that?

How would he know about it?

How would one ever know when a custom changed?

How could you have anything that would give any certainty to anybody regarding a custom to -- if you were to say a custom could have the force of law.

We submit that it does not.

We think that the primary issue here is first of all whether or not this man had the right to eject anybody that he didn't have in his premises or take this trespass statute to help him if he didn't want to take the law in his own hands to do that.

And under our law, under the trespass situation, if you didn't go to a -- if you didn't first used the law, he would have the right under the decision in our cases to protect his own private property by ejecting trespassers who would be people who would refuse to leave his property when he asked them to and wouldn't obey his orders, he would have the right under our law and I think properly under most state law that to use whatever force was necessary to reject such person.

Now, the law does a favor to people taking the force of law into their own hands.

The troubles that would arise if a man, a store owner or anybody took it upon himself to throw out, people who refuse to obey his order to leave, would be a multitude of problems, you're going to have not only mild resistance, you're going to have cases where people resist with a great deal of force and it can lead to not only broken bones but deaths, and that's something that nobody wants to have.

That is a case -- in that case, where a landowner or property owner or a storeowner should be permitted to resort to the law with the force that could be administered impartially and with an even hand.

Not something where he is in there fighting and strangling and using force in a prejudiced manner where his personal interest are so involved.

He needs somebody from the outside that is not personally bound up in the use of that force.

If you don't do that, you're going to have a question of whether or not a man can use his own force.

You're going to come to the situation, for example, if it was to be held that a man could not resort to a statute like this, to eject anybody that he doesn't like.

He's going to come to a situation where everybody is going to have to take the law under their own hands and you're going to have to hold that by virtue of enacting the law is the -- is this city ordinance requiring segregation, you're going to actually by letting a city enact an unconstitutional law, deprive a landowner of the right that he otherwise would've had under state law which permitted him to use state force to protect his property rights and eject trespassers.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Theodore A. Snyder, Jr.: Yes sir, he -- yes sir.

I think he did, not explicitly but in the sense that he telephoned for the police to come there and that when they came there he requested the petitioners to leave.

And in the presence of the police who heard the request, they refused to leave, were given unreasonable opportunity and did not leave which constituted a misdemeanor committed in their presence.

And I think that the --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Theodore A. Snyder, Jr.: There was never -- I admit.

There was never any expressed request by him to arrest them in formal words.

But I say that the facts show that there was a request.

Chief Justice Earl Warren: Was there a formal request for the police to come --

Mr. Theodore A. Snyder, Jr.: Yes.

Chief Justice Earl Warren: -- by the manager?

Mr. Theodore A. Snyder, Jr.: The manager testified to that.

Chief Justice Earl Warren: -- that he did that?

Mr. Theodore A. Snyder, Jr.: That he asked one of his subordinates to telephone the police to come to the premises.

Chief Justice Earl Warren: We'll recess now.

Featured:

Peterson v. City Of Greenville - Oral Argument, Part 2

Tue, 25 Sep 2012 22:37:32 +0000

Case:

Peterson v. City Of Greenville

Media File:

71_19621107-argument-2

Related Transcript:

71_19621107-argument-2

Transcript:

Argument of Theodore A. Snyder, Jr.

Chief Justice Earl Warren: James Richard Peterson et al., Petitioner, versus City of Greenville.

Mr. Snyder you may continue your argument.

Mr. Theodore A. Snyder, Jr.: May it please the Court.

One of the chief issues in this case as well as the other cases which is in the brief before you gentlemen is the question of freedom of speech whether or not these petitioners were exercising any right of freedom of speech when they staged this “sit-in” demonstration.

We submit that they were not.

First, of all in considering the question of freedom of speech, you have to consider where the traditional area for speech in public speaking has taken place in this country and we found on looking at cases that the traditional area of speech where you have people who -- to begin with or not (Inaudible) to speak in detail, as between the associates or friends in a private discussion, is that they have to meet in the public places for that discussion, that is on the streets, in the park, in the places where ordinary people would come together who had something that they wished to talk about.

Then we think it's proper that people should have the freedom to speak to each other and try to convince others of their views when they meet on public places, in a place like that, and we think they have a right go there to try to convince others of their thoughts, of their ideas.

You go a step further, however, when you have a person who wishes to try to convince someone else of his ideas and thoughts when he goes onto that man's private property to do so, and that's what you have in this case.

The petitioners who claimed they were exercising the right of speech had left the traditional area of speech which is out in the public and out in the open and they have gone inside the store where they now seek to speak not to the other public in general, not to someone who may be by chance coming down the street, but where they had seek to speak to the owner or the manager or the operator of these particular premises.

So they have narrowed down in two ways from first, they have moved away from the traditional area of speech.

And second, they have moved in and they have narrowed their desire to speak to a particular person and not to speak to anyone in general or to anyone who may be happened to be present.

Now, they might have that right and we don't deny that they have a right to go to the store, to attempt to speak to the manager, or to anyone that may be there.

They have at least the right to make an attempt to go there and begin a conversation.

But we submit that they do not have a right to stay there and force the person they found there whether he might be the manager or someone else to stay and listen to their ideas.

They have no right to force him to listen to them on his own property when he does not desire to listen to them.

If he does, he takes away from that person his right of speaking himself.

He has no chance to do anything else.

The law even in the public places has, as it's concerning freedom of speech here before, has given the right of the person that he has spoken to either to refuse to listen or to require the person who would speak to move away.

For example, in Cantwell against Connecticut, you had a speech problem with the persons that -- where they would be listeners after they had heard all that they desired to hear, require the speaker to move on.

They moved on themselves to -- because they didn't want to hear anymore and they have that right.

You have the same question in the Doorbell cases where on the grounds of freedom of religion, a person has the right to ring a doorbell to someone, the householder, but the householder is not required to stand there and listen to whatever the speaker may have to say.

He has a right if he does not agree with the person to require him to move on.

He is not required by any measure for freedom of speech to engage in a conversation with that person if he does not desire to and that's what you have in this case, where the manager after he had heard the side of the argument presented to him by the petitioners, didn't desire to negotiate with them, didn't desire to discuss the question with them any further, and he asked them to proceed about their own business somewhere else.

That was his right.

He didn't have to sit there and listen to their demands hour after hour.

When he had told them that, their duty was then to proceed and take their conversation somewhere else.

Justice Arthur J. Goldberg: Mr. Snyder, would you mind at this point if it doesn't disturb the course of your argument, saying a word about whether -- in connection with whether the manager was operating under his own esteem as were in this area about the propriety of the trial judge's action in refusing to permit Mr. Perry to inquire into the question of whether or not there had been prearrangement with the police to take action in connection with the “sit-in”?

Mr. Theodore A. Snyder, Jr.: I think in that connection Your Honor that the petitioners would have had a right to prove if they could have.

The fact that there was a prearrangement with the police in which the police had directed the store manager or the storeowners to take the course of action that he did.

Justice Arthur J. Goldberg: Do you think it was foreclosed by this ruling of the trial judge?

Mr. Theodore A. Snyder, Jr.: They're not, sir, for several reasons.

First of all, after the first objection was made and sustained, the witness Mr. West's manager was asked for what reason did he then exclude the petitioners and his answer was not because of some prearrangement but because of the custom and the ordinance which had been discussed which was the ordinance to prove -- which we submit prohibiting trespass after notice.

Justice Arthur J. Goldberg: Now, wouldn't the -- would it not have been appropriate in connection with that answer to pursue the question of whether the police had in effect asserted the ordinance with him, because as I read the record and I am starting on page 22 where that offer was made, Mr. Perry was foreclosed by the judge unless he would persist after a judge's ruling which he could not very well --

Mr. Theodore A. Snyder, Jr.: But we were --

Justice Arthur J. Goldberg: -- pursuing that line of inquiry.

Mr. Theodore A. Snyder, Jr.: We would not require him to persist after his objection has been overruled, but on our procedure, Your Honor that man, who has been foreclosed in this manner, may if he desires and if he wishes to protect and sustain his objection there, should've made an offer of proof into the record which he had a right to do.

In other words, he could have stated for the record at that point about the waiver of proof what the testimony of the manager was anticipated to be on that point.

And he could have done that if he so desired, but he did not.

The fact that he did not shows to us the fact that the manager could not be expected to have testified as to any such an arrangement.

Justice Arthur J. Goldberg: Well, would you not read his comment after the objection was sustained as being equivalent to an offer of proof when he stated what he purported to bring out in this line of questioning?

Mr. Theodore A. Snyder, Jr.: No, sir.

I don't read it that way.

I understand what he was stating that his objection was that he desired to attempt to show by cross-examination but he did not state that he expected the manager to testify to that effect, which he would have had gone if he wanted to make a proof -- an offer of proof in the case.

In conclusion, just let me say that we have here under the Fourteen Amendment the question of whether or not you're going to -- you're going to have to balance two things really.

You have a property right on the one hand, in the hands of the property owner here.

On the other hand, you have the asserted right of these petitioners to a portion of their liberty.

This Court, is absolutely -- this has got to draw the line between those two rights which are both equally protected and as I read the amendment in the decisions of coequal rights.

The Court has got to decide whether or not one right would give way to the other in these circumstances.

We submit that in this -- in the case that is presented here and under its facts that the Court should decide that the property right of the owner of this property is paramount to the right of the petitioners to have their liberty there, on these premises, for the purposes for which they were present.

Thank you.

Chief Justice Earl Warren: Mr. Perry.

Argument of Matthew J. Perry

Mr. Matthew J. Perry: Mr. Chief Justice, may it please the Court.

Mr. Snyder in his remarks on yesterday referred to the innkeeper doctrine and stated that the innkeeper doctrine was not applicable in this situation.

We respectfully call to the attention of the Court that in the City of Greenville, South Carolina, a Negro traveling through the City of Greenville or in the City of Greenville on business or for whatever his purpose might be cannot obtain a meal on Main Street in the City of Greenville.

And this policy or custom is generated by state law and most especially by the ordinance which the store manager in this case testified he was acting upon.

Justice Arthur J. Goldberg: Are there any restaurants in Greenville where a Negro can be -- can get meals, do you know of, Mr. Perry?

Mr. Matthew J. Perry: There are a few restaurants which cater only to Negroes.

Justice Arthur J. Goldberg: Have not in the main section of town.

Is that what you're telling us?

Mr. Matthew J. Perry: That is correct, sir.

Justice John M. Harlan: Under your statute or under your law, the ordinance is properly in this record, is it not?

Mr. Matthew J. Perry: We contend that it is Mr. Justice Harlan and as I understood the remarks of Mr. Snyder on yesterday, the City of Greenville concede that it is properly before this Court.

Justice John M. Harlan: And the Supreme Court or Court of Appeals declined to consider the effect of the ordinance as I read it to claim.

Mr. Matthew J. Perry: That is correct, sir.

Justice Tom C. Clark: If a Whiteman went into a Negro restaurant would he be arrested?

Mr. Matthew J. Perry: There have been many contentions in this particular regard that a Whiteman would be so arrested.

But a --

Justice Tom C. Clark: Had there been any incidents of that kind?

Mr. Matthew J. Perry: Not to my knowledge.

Not in -- not in the whole State of South Carolina.

I believe of course as these cases will demonstrate, the demonstrations in some of the other cases involved interracial groups.

But none of the demonstrations in South Carolina which involved, I believe, more than 1200 young people involved interracial groups.

Justice Tom C. Clark: How many cases are awaiting trial of this kind?

Mr. Matthew J. Perry: A number of them are still awaiting trial, I would not have a guess as to the exact number, but I think that I can answer your question sir by stating that more than 1200 young people were arrested.

And this case of course was set down for hearing.

There are a number of other the cases in which petitions for writ of certiorari are now pending and a number of cases are still to be argued before the South Carolina Supreme Court.

I believe on next week, we have some nine cases set down for argument in the South Carolina Supreme Court.

Some of them have not yet been tried.

They seemed to be awaiting the outcome of this class of litigation before this Court.

Justice Hugo L. Black: I don't quite understand -- do I understand you to say that you believe that this ordinance would not be enforced against white people who went into the restaurants set apart for Negroes?

Mr. Matthew J. Perry: No, sir.

I did not say that.

Justice Hugo L. Black: I didn't think you were --

Mr. Matthew J. Perry: Thank you sir.

Mr. Snyder says here that the ordinance in this case did not punish the petitioners but was -- would punish the manager had the manager sought to serve both whites and Negroes?

Unknown Speaker: Is it for (Inaudible)

Mr. Matthew J. Perry: May we answer that by pointing out that the ordinance in this case was not a mere (Inaudible) abstract exhortation to the manager but was obligatory in its terms.

And the manager was left without a choice and acted in asking these petitioners to leave his premises according to his testimony pursuant to the mandate of the ordinance.

Mr. Snyder said on yesterday that textile mills are not acting in accordance with the state's statute which prohibits the employment of whites and Negroes in the same room at the same time.

In answer to that, may we point out that the statute is still in effect on the books in South Carolina and where we permitted to go outside the record in this case, we can prove that the statute is still followed although with the State of South Carolina.

We understand however, that I may not make such a comment.

Mr. Snyder pointed out in his remarks on yesterday that the Greenville Airport in Greenville, South Carolina is desegregated.

May we comment on that in the following manner?

The Fourth Circuit Court of Appeals required the Greenville Airport Commission to desegregate that airport and the same counsel in this case before this Court today were counsel in that case.

Mr. Snyder has alluded to what he believes to be the primary issue in this case, namely, whether the proprietor of a business establishment has the right to select his customers on the ground of race.

We respectfully say that whatever right of personal choice a proprietor has to make personal distinctions, the limits of that privilege certainly seems to be reached when the person exercising it turns to the state for assistance.

This seems to be what happened in this case.

The store manager acting not upon his personal choice but upon the mandate or pursuant to the mandate of the City of Greenville and of the State of South Carolina and following its broad plan of keeping the races separated in every area of life in South Carolina chose to tell this man to segregate white and Negroes seeking to eat in the premises of his business.

In Shelley against Kraemer, this Court said, the Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals.

We respectfully say to this Court that this is what has happened in this case.

That whatever right of personal choice the manager of Kress' had in this case, he did not use it.

He turned to the State to enforce it's -- the state's policy of racial segregation.

Justice Hugo L. Black: Does your argument -- that particular argument go -- would it require the guest, that the man goes into another man's property, store, anything, and the man doesn't want him there and he had a perfect legal right to tell him so that the State couldn't protect him in that right, (Inaudible) by the police officers?

Mr. Matthew J. Perry: Well, Mr. Justice Black, may I suggest respectfully that the record in this case does not show that the --

Justice Hugo L. Black: Well, I know --

Mr. Matthew J. Perry: -- manager didn't want them there.

Justice Hugo L. Black: I'm asking about the argument you have just made.

Mr. Matthew J. Perry: I believe that sir the Constitution would not confer upon him the right to – to demand that the State action which would --

Justice Hugo L. Black: It could mean -- the idea of the law under -- the right of the courts to have laws, to keep all personal difficulties and keep things from being settled by force and violence, is that if the citizen has a right under the law, first, a valid right to do something, that if the State can come in and protect that right with its officials, that usually been the case, are you saying that that is not the case?

Mr. Matthew J. Perry: I certainly would not go that far sir.

But in a case like this one where the manager of Kress', the Kress Company has opened its entire premises to the public and has said to the public, “Come one, come all.

We have for sale here more than 10,000 items, hue, white, black, red, and yellow are invited to come here and purchase”.

Justice Hugo L. Black: Then you're --

Mr. Matthew J. Perry: But --

Justice Hugo L. Black: -- denying it to have a legal right, I understand that argument and I understand the other one, I think.

I thought I did, but that -- I just wanted to know if that was your position, the State is without power through its police force and its officials to protect people, people's right on the assumption that they have the right.

Mr. Matthew J. Perry: I would not go that far sir.

Thank you very much.

Featured:

Lombard v. Louisiana - Oral Argument, Part 1

Tue, 25 Sep 2012 22:36:26 +0000

Case:

Lombard v. Louisiana

Media File:

58_19621105-argument-1

Related Transcript:

58_19621105-argument-1

Transcript:

Argument of John P. Nelson

Chief Justice Earl Warren: Number 58, Rudolph Lombard et al, Petitioner, versus Louisiana.

Mr. Nelson.

Mr. John P. Nelson: Yes, sir.

May it please the Chief Justice and this Honorable Court.

Number 58 could be the titled the second chapter to the Louisiana sit-in story.

Since Mr. Garner in March of 1960, between that time and the time that Mr. Lombard was arrested in September of 1960, the State of Louisiana passed nine amendments to its criminal code specifically directed to its curbing the sit-in demonstrations which had so dramatically drawn the attention of the United States and the world.

In fact in 1960 alone in the State of Louisiana, 35 Acts and four opposed constitutional amendments were passed by the legislature affecting the segregation of races.

So this Court as a result to the Garner case is fully aware and familiar with the history of the segregation statutes that have been enacted in the State and the Government brief spells them out in details.

The relevancy of this monumental number of segregation laws is an issue in this case.

And also an issue in this case is the one fact that in September of 1960 there was no statute requiring segregation of races at a lunch counter.

In fact in Louisiana, there's never been a statute requiring such separation of races at a lunch counter or in a restaurant.

That also is an issue in this case.

In this case, we have a classical example of how police officials can implement state policy, state tradition, state custom in such a way as to deprive American citizens at a lunch counter of their constitutional rights.

In this case Your Honors, we are asking for a reversal from a conviction of a criminal mischief statute and a subsequent sentence of 60 days in jail and $350 fine a piece.

Now the facts (Voice Overlap) --

Justice John M. Harlan: Does Louisiana have an ordinary trespass statute?

Mr. John P. Nelson: It does.

Justice John M. Harlan: Trespass after warning?

Mr. John P. Nelson: It does.

And it was amended in June -- I have a series of Acts which are referred the District Court to -- that trespass statute was amended to try to curb the sit-in demonstrations but in this case we're charged under criminal mischief statute which has all the ingredients of a trespass statute.

Now as you have warning and if you refused to move from the part of the store you're in, then you commit a crime.

This in effect is a trespass type of statute.

But the facts in this case are simple, three Negroes and one white at 10:30 in the morning entered McCrory Store in Canal Street proceeded to a segregated white lunch counter, sat down and were told to move to a Negro counter.

When they refused, the police were called by the manager.

The police then instructed them to move in the presence of the manager and when they did not move they were subsequently arrested.

There was no question.

It was orderly, dignified type of demonstration.

Now, the evidence shows that the manager is the one that requested these people to move.

Now with these facts, it seems to be that the consideration in this particular case is the clash of the First Amendment freedom of speech rights on one side and the property right of the owner on the other side.

However, there were two additional facts which the Supreme Court of the State of Louisiana completely ignored and the Attorney General of Louisiana in his brief for reasons of his own completely ignored and that was Exhibits Number 1 and 2, and I refer to Your Honors' attention to page 138 and 139 of this record because these two additional facts are extremely important in understanding an insight into the mind of the southern police law enforcement officer in the implementation of certain policy of racial separation of races.

It must be understood that this sit-in took place on September the third -- the 17th, 1960.

On September the 9th, 1960, there was another sit-in at Woolworth, a half block away.

The day after the first sit-in the Chief of Police issued a statement which was highly publicized on radio, TV, and newspaper and is listed as Exhibit Number 2 on page 139.

Now, the Chief of Police stated -- referred to this sit-in at Woolworth as a regrettable incident caused by few misguided youths and the statement is directed specifically to storeowners, constituents and Negroes.

The important part about the Chief of Police statement is on page 140 in the middle of the page in which he says, “With the exercise of continued responsible law abiding conduct by all person, we see no reason for any change whatever in the normal good race relations that have traditionally existed in New Orleans”.

Now keep in mind, there was no statute requiring separation of races.

On down further, he says that, “The New Orleans' Police is prepared to take prompt and effective action against any person or group who disturb the peace on public or private property”.

Now four days later, the Mayor of the city of New Orleans also issued a highly publicized statement on page 138.

Now, this statement is to the point it's blocked and it can't be misunderstood.

He said, he directed the superintendent of police that not only with no sit-in demonstrations take place but he prohibited as he put it, so-called “peaceful picketing”, in sympathy with sit-in demonstrators.

He pointed out to the people what statutes were available for their use and the last paragraph on page 139, it is my determination, said the chief executive officer of the City of New Orleans, that the community interest, the public safety and the economic welfare of this city require that such demonstration ceased and that henceforth they be prohibited by the Police Department.

Keep in mind that there was no statute requiring separated lunch counters.

Now, the Mayor and the Chief are both subpoenaed and testified in this case.

They both said, “We directed the people's attentions to sit-in of this particular type that was involved in this case”.

The Mayor of the City of New Orleans testified that there are thousands of eating places in the city and not one to his knowledge catered to both white and colored.

Now, these two facts changed the inquiry, I submit in this case, from one of a personal conflict of rights between a patron and a storeowner to the consideration of where does a person's freedom end and where does the state power begin.

But here in these statements I submit, we find a masterful piece of state deception.

It's addressed to men unlearned in the law.

It appeals to community pride and the personal responsibility.

These statements and mandates and directives are addressed to storeowners, owners of private property, who should have the right of -- to makeup their own mind regardless of the custom.

But this message as I stated being clear, distinct in conducting, misunderstood in effect left a storeowner with no choice, left him without a choice of concurring in the action of consenting to service or allowing the Negro to approach the sit-in.

And so here, when the Supreme Court of State of Louisiana says that this was a free independent choice on the part of the storeowner he was referring to the type of choice which we usually have in the State, a choice between segregation or nothing just like the Saint Helena case.

They have a choice between open segregated schools or no schools.

The choice is always conditional.

In this case, the same choice was offered to the property owner.

Now, this message is a more sophisticated one than the average message gotten across in southern -- segregated communities in the south.

It's not a message to protect rights as to prevent the exercise of rights.

It's a rally and call to hold the ranks.

It's effort to keep public opinion from being changed.

And that was mentioned this morning by Mr. Moody.

He was reared and born in the South and so have I.

Never left Louisiana, born in Mississippi, can sympathize with the problem that's going on.

But I know this that the demonstrations that these Negroes have been going through is the only way that they can get their message across, the only way.

They know that southern eyes are closed and will not read placards.

They know that southern ears are deaf and will not listen to pleadings.

But they also know one thing that a southerner can feel something when you step on the other side of the line and it's that in which they communicate, that area.

It's that -- that's the utterance that they're getting across.

And that is responsible for the fact that because 3,000 of them are now under charges.

Yet, many, many more thousands have taken advantage of what these kids have done.

But I will get to that in a brief moment as to why I believe that the right of this particular type of demonstration, unique and new on the American scene is indispensable right at this particular time for the forward movement of Negroes in their quest for equal treatment.

Now, to get back to the September 17th and the environment with -- within which this decision took place, the Mayor threw the full weight of the police force behind his decision.

Now four days later, Mr. Barrett, the manager of McCrory Store, meekly told these kids to move to another counter.

In fact, the police officer testified Mr. Barrett asked me what to do.

There was no question that Mr. Barrett -- he wanted them out.

And --

Chief Justice Earl Warren: And what was Mr. Barrett's answer to that?

Do you have it in your record that --

Mr. John P. Nelson: In answer to what sir?

Chief Justice Earl Warren: For the -- the Mr. Barrett -- Mr. Barrett asked the police officer, what he was supposed to do.

What did the police officer say?

Mr. John P. Nelson: Well, the police officer testified that Mr. Barrett told me, “I want these kids out and what should I do about it.”

And the police officer then he -- then the police officer told him, “Well, you tell the kids to move in our presence because a misdemeanor would have to be committed in the presence of the police officer.

They don't need a warrant”.

But the point is there was no question but that Mr. Barrett wanted them out.

Mr. Barrett testified that his counters are segregated and they conform to state tradition policy and custom as interpreted by me, that's what he said.

Now on two occasions and I went out to ask him, well, supposed the tradition would be different, supposed the custom would be changed, would you allow the Negroes to sit there and the Court refused to let him answer that question.

So as far as we know, Mr. Barrett was conforming to state policy and I might point out, the state policy is referred to in the Garner case is -- was passed by the 1960's Act of Legislature and Act 630 in Reeds, it is the intention of the citizens of a sovereign state that a segregation policy be continued.

That was --

Justice Arthur J. Goldberg: Mr. Nelson, in fact there were (Inaudible) to Negroes?

Mr. John P. Nelson: They all.

Almost two years to the date of this arrest, 16 New Orleans stores at one time in connection with a committee of businessmen desegregated everyone.

Justice Arthur J. Goldberg: Now the State involved what you cited, the Government cited that they be changed?

Could they still (Inaudible)

Mr. John P. Nelson: Well, the State -- that most of those laws or that -- they've been (Inaudible) in the constitution, wouldn't have in a lot of activity in our Federal District Court in New Orleans and if its -- most of them have been declared unconstitutional.

I mean, we still have segregated hospitals, prisons, schools have gone down the -- now integrated since the 1960.

Justice Arthur J. Goldberg: Has there been -- this is irrelevant to your case, I have a --

Mr. John P. Nelson: It is irrelevant.

Justice Arthur J. Goldberg: Now the fact (Inaudible)

Have there been any statements by the police or the Mayor canceling out the picketing that you referred to a few minutes ago?

Mr. John P. Nelson: No, sir.

We are two years and one mail away.

And the lunch counters were desegregated under a new Mayor who takes no interest in what's going on.

I mean, he skipped a loop from this problem.

This has been done by the efforts of a businessman in the city and Negroes independent of any political participation at all.

And -- so the -- there's been no -- the police -- we still have the same Chief of Police and -- but he takes his orders from the Mayor.

The Mayor testified that he was a Chief Executive Officer of the police and sets the policy.

Justice Arthur J. Goldberg: Did you make the same argument (Inaudible) today, the storeowner evict the Negroes and called the police to assisting the storeowners?

Mr. John P. Nelson: In New Orleans?

Justice Arthur J. Goldberg: New Orleans.

Mr. John P. Nelson: Well, there's no question but that it -- it was -- it's hard to envision right now what's going on.

We know that technically it's desegregated.

I'm not trying the defense with an answer.

I just -- but I don't know how I would answer the question.

If -- that the point would be that in New Orleans in 1960 and I might say this, I heard this morning talk in the first case, the custom of the State is different.

But we are dealing with a community, a neighborhood, a custom can be really strong in a full black area implemented by state action and you would have a choice five blocks away.

And the fact that the free choice may be in New Orleans and not in Jefferson Parish or let's say Plaquemines Parish right adjacent to us doesn't make a free choice.

I would say that in New Orleans today, it would -- one of the people that agreed to take in Negroes, if they would renege on their agreement and just back off, and a Negro would sit-in in that particular location, I would say in this date and age in New Orleans knowing that community like I know it, my argument would still be the same.

But in any event --

Justice Potter Stewart: Why?

I don't see that?

Where would the state action come from then?

Mr. John P. Nelson: Well, no (Inaudible) -- my argument would not be predicated on state action.

My argument would be based on the fact that in the segregated southern communities when you are faced with as this Court referred a delicate and difficult -- of balance of the First Amendment rights, the freedom of speech and the property rights.

I would say that, in these communities, in this day and age, a Negro who walks in and stands at a segregated counter should be free from arrest for standing there.

And in the City of New Orleans as it is today as I know it and in that regard -- now this is not a question of state action, this is a question of a man opening his business to the public who gives up his right of privacy, who invites everybody in but yet, who intentionally, intentionally keeps this so where everybody can see it.

And this is -- you see, this is the thing that has upset the southern politicians, this pilgrimage of Negroes to the lunch counter, the high altar white supremacy.

It was referred to this morning as a symbol and it is a symbol.

We in the south know what this symbol means.

And when a Negro walks in and sits, he is demonstrating and dissenting to a custom which as you gentlemen has said, not be in decree in heaven will never change and it would never change, never without Court decision as far as I can see in the deep South.

But the point is that no one, no one who has ever lived in a real segregated community is so naive as to believe much less admit that when a city fathers give you these types of instructions of conforming with state tradition that a businessman has the will, the courage or resources to disobey.

You just don't back City Hall in a deep southern community on this issue and get away with it.

Now, it's the retaliation powers of the -- of City Hall and this makes the license, of a licensing thing relevant because of the conformity and the power that the mayor's office has in a -- in the -- you're ice cream is sour.

Justice Byron R. White: I gather that what (Inaudible) I take it that that will be in the present situation.

Your point is that City Hall would make it clear that you still can't back City Hall.

Mr. John P. Nelson: If upon me, yes sir.

Justice Byron R. White: In the case of the individual who reneged, the question Mr. Justice Goldberg asked.

From the present arrangement which I gather as you told it to us without interference from government at all, there's been no voluntary arrangement to stores, Negro groups, other citizens by which always lunch counters are now desegregated, is that it?

Mr. John P. Nelson: That's right sir.

Justice Potter Stewart: Now, one of them reneged and ordered the -- a Negro to leave and the Negro didn't leave.

I gather the owner had only to call, is that what you're telling us, the police and he gets the same police assistance he always had?

Justice Byron R. White: There's no question about that and we who lived in (Inaudible) and the custom knows that when a Negro -- we can all remember, was outside of his own -- in the neighborhood, it was the police who arrested him.

Who rode on a street which was predominantly white, it was a police who stopped him, as the police has mentioned this morning out of -- that's preserving the system.

But the point here is when the Chief of Police instructs businessmen to follow normal good tradition -- normal good relation and says, “This is the custom”.

This is the thing that goes on.

Now, we have it in writing.

We're fortunate enough to have in this case.

This would be a tough case if they hadn't (Inaudible) issued those newspaper articles.

It's not part of the record but I know why they issued them and that's irrelevant here but can you imagine to try to cross-examine the Mayor or the Chief and ask him to admit these things in a southern community.

What type of pressure did you bring on the businessman but we have it in this particular case.

Now I res -- the Supreme Court of Louisiana ignored this and so does the brief of the respondents.

In an effort to try to impress upon a Supreme Court the tremendous amount of state action I asked the -- everybody, the manager what arrangements did you make with the police, what police arrangements were made with you before and all of these was excluded.

The trial judge excluded it and that's one of the issues in this case that of course we have as much state action in this case I think as any case before this Court today.

I have one --

Justice Byron R. White: Well, your answer to the Supreme Court's finding that the owner would have done this anyway and that the state design or the state actions had no influence upon him.

Your answer is that they really didn't pay any attention to the evidence or --

Mr. John P. Nelson: They ignored it.

The Supreme Court found --

Justice Byron R. White: But if they wouldn't let -- they approved not letting it in?

Mr. John P. Nelson: Well, the District Court refused to let me -- to let answers come in to the questions of what arrangements did you make with the police before the sit-in?

What (Inaudible) or a plan did the police give to you?

This was a military operation.

When these kids sat-in the testimony was a whistle that was blown, as soon as they didn't move and with no further instructions, nothing was said, the light went out, the sign went up, the stools were put away and quiet, no instructions.

So with that evidence and the fact that the Mayor and the Chief had released these statements, I felt that I should have a right to show state action, what influence did the police bring on these storeowners, and the trial judge just excluded all of that.

Justice Byron R. White: You said -- you feel that this is one of the really significant issues in the case or perhaps the most is that (Voice Overlap) --

Mr. John P. Nelson: No, the main exclusion of evidence --

Justice Byron R. White: (Inaudible)

Mr. John P. Nelson: The exclusion of the evidence.

Justice Byron R. White: Who enforced what to do to whom (Inaudible) to do what is -- is really the question I think, (Voice Overlap) --

Mr. John P. Nelson: If so, that's the question on state action.

Yes, sir.

And if -- in the other question in this case, let's assume we didn't have the two statements of the Mayor and the Chief.

Justice Byron R. White: Well then we're faced right to where -- we're faced then (Inaudible) Supreme Court of Louisiana's finding right against you, aren't we?

Mr. John P. Nelson: Yes, sir.

Justice Byron R. White: On the facts?

Mr. John P. Nelson: Yes, sir.

But the evidence is in the record -- the evidence is before you, the justices here.

And when the Supreme Court of Louisiana says -- found as a fact that the manager, he's the one that set the policy independent, this was not a fact.

When -- and the -- but in any event, I would like to reserve my ten additional (Voice Overlap) --

Chief Justice Earl Warren: We'll recess now.

Mr. John P. Nelson: Thank you sir.

Featured:

Griffin v. Maryland - Oral Argument

Tue, 25 Sep 2012 22:36:43 +0000

Case:

Griffin v. Maryland

Media File:

6_19621105-argument

Related Transcript:

6_19621105-argument

Transcript:

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.

Featured:

Lombard v. Louisiana - Oral Argument, Part 2

Tue, 25 Sep 2012 22:36:27 +0000

Case:

Lombard v. Louisiana

Media File:

58_19621106-argument-2

Related Transcript:

58_19621106-argument-2

Transcript:

Argument of John Nelson

Chief Justice Earl Warren: -- your time had this it?

Mr. John Nelson: Ask in rebuttal.

Chief Justice Earl Warren: Yes.

Attorney General Gremillion.

Argument of Jack P. F. Gremillion

Mr. Jack P. F. Gremillion: Thank you, Mr. Chief Justice and Associate Justices of this Court.

I find Louisiana in a unique position here today because frankly we have no quarrel with the law as it presently exist at least in our opinion in this matter.

I think that this case of Lombard here, is one that was largely determined revolved its decision on what the facts actually are.

And they are so important that I would like to take a minute to go through the facts of this case.And then we can discuss the appropriate legal points.

Now, the facts surrounding this case was the basis of a criminal mischief charge brought against these defendants are still in Louisiana.

Between 10 and 11 o'clock on the morning of September the 17th 1960, two Negro men, a Negro woman and a white man took seats at a 24 stew lodge counter, reserved the white customers in McCrory's Five and Ten Cent Store or Canal Street in New Orleans.

Now, McCrory's is one of the national chain operates in 34 states.

It sells all kind of merchandize and it's open to the public and of course the statements I'm making here are born out by the record because I am following my brief.

The question of whether the lunch counter facilities in the various McCrory stores are segregated or integrated is left to the National Office of the McCrory stores to be determined by local tradition law and custom as interpreted by the manager of each individual store.

And that's in a transcript of the record at page 21.

Of course, as it has been point by Mr. Nelson, Louisiana has no law requiring segregation of eating facilities in its state.

It never has had -- neither thus the City of New Orleans nor do I know of any single municipality that has such an ordinance in the state, back there is none.

Now, the McCrory Store in which these defendants stay and having demonstration had separate food counters for serving food to Negro and white customers since 1938.

And as I said before, there is no law or ordinance requiring the segregation with these eating places and by operating separate lunch counters for whites and Negroes, McCrory was simply following a local custom as interpreted by that store manager, Mr. Barrett.

An employee of the lunch counter at which the defendants sat down called the restaurant manager who informed these four students both white and Negro, that he could not serve them at that counter and that he had to sell them eating materials at the rear of the store were he had a colored counter.

Now, when the manager received no answer at all from these individuals, this is the restaurant manager, he turned off the lights.

He removed the unoccupied stools -- stools and he closed the lunch counter.

A sign reading?

This counter is closed was pointed out to the students but they remained silent.

The restaurant manager then called the store manager and the police.

Now, the police -- it's significant, the police were never present in anytime.

The manger, Mr. Barrett, came behind the counter and he talked to the individuals and he asked them to leave.

Police still was not in -- were not in the establishment.

But they neither answered in nor did they move the concen -- continued to sit down.

When the police arrived, the store manager advised the students in the presence of the police and prior to talking to the police that the counter which they were seated was close and he asked them to leave the store, nothing happened.

Justice Hugo L. Black: I didn't quite get it.

Did I miss -- how did the police -- were they called under this?

Mr. Jack P. F. Gremillion: Yes.

The restaurant manager notified the store manager and then called the police.

Up to that time the police were not involved in this factual situation at all.

And when the police arrived, the store manager talked to the four individuals and he told them that the counter which they were seating was closed and he asked them to leave the store.

Now, as I said nothing happened.

Thereupon --

Justice Potter Stewart: Now, was that done in the presence of the police?

Mr. Jack P. F. Gremillion: Yes.

And the manager told these individuals that he ordered them out of store and he asked the police to take them out of the store because it was his custom not to serve them.

His custom as interpreted by him.

It was his custom not to serve them at that particular counter.

Then the police officers told them, ?The manager wants you out.

You are violating Louisiana law.?

And that's of course is in the record.

And the --

Justice Potter Stewart: He didn't identify what law they were violating, did he?

Mr. Jack P. F. Gremillion: No, he just said you're violating the State law and he asked them to leave.

He asked, Which one was the leader?

And the white student and said, I am the leader.

And that's the only word that was ever spoken by these four people.

He identified himself as the leader.

And he said that they had come there for a particular purpose.

And that their mission was to be served and that if they were not served, they were willing to be arrested.

So the Major, I forget his name right now, the police --

Justice Potter Stewart: Now, what law were they violating if any right at that moment?

By saying they wanted to be served.

Mr. Jack P. F. Gremillion: They were violating the criminal mischief statute of the State of Louisiana which read as follows.

And this is the basis of the charge against them, Taking temporary possession of any part or parts of a place of business, or remaining in place of business, after the person in charge of such business or portion of such business has ordered to such person to leave the premises after he resist from the temporary possession of any part of parts of such business.

In other words --

Justice Potter Stewart: So while -- while this is what you referred or called a criminal mischief statute that part of it at least is very similar to the trespass statute that we have in the previous cases, is that right?

Mr. Jack P. F. Gremillion: Well, you might say that but it -- it was a statute that was passed by the 1960 session of the legislator, and was designed to protect the rights of the private individual on his property from the invasion by anyone regardless of race, creed, or color.

Now, counsel -- and I might go into this right now.

Counsel has attempted to tell you that there was a great segregation program passed by the State of Louisiana of that session of the legislature.

Well, it may be that there were a lot of laws passed that was subsequently declared unconstitutional in litigation in the eastern district and subsequently in the Fifth Circuit Court of Appeals.

But these particular statutes, these particular criminal statutes were passed as the result of District Attorney's conferences and I might tell the Court that as Attorney General, I've already made conferences for the District Attorneys in my state which is required to some states.

And we meet every year in February of the year and we discuss the decisions of this Court as they affect our laws.

We discuss the decisions of our Supreme Court as they affect our criminal statutes.

And we are always amending our criminal code to provide the situations that were never covered by law of the Court.

So there is no significance to be attached in such a fact like that.

In fact, as the result of the working with the Louisiana Law Institute, our Court of Criminal And Civil Procedures was completely overhauled at the same session of the legislature.

So I don't think anyone can say that that was the result in trying to maintain the policy of segregation in my states.

Some of the laws that we amended we act quite a bit of litigation involving our registrars and voters.

We woke up to find out that no one could ever provide the material for the registrar of voters because until recent years, the office was relatively unimportant.

And it passed the law at that session making the Attorney General the attorney for the registrar of voters just giving me a little more work to do.

But I recite that to you because there's nothing in any of these statutes that we passed which would Your Honor upon recommendations of the District Attorneys and this act was drawn in my office.

So I don't know why it was put in there.

We never have a statute before because we never have had situations that existed like this before.

We never had the statute on our books that could punish someone for coming in and taking possession of their property, much like that someone would walk into your home and say, I'm in your home.

And you could say, Well I don't want you in my home, get out.

And we never had a statute to cover.

Certainly, you would have the right to invite him out and if he refuse to go out you would certainly have the right to call the police because he has no right to be in your home, no federal right, no other vested right.

And that's why we pass this particular statute.

Justice John M. Harlan: What did the statute accomplish if this already embraced the general trespass statute?

Mr. Jack P. F. Gremillion: Mr. Justice Harlan, our general trespass statute, as I recall, relates mostly to farming and includes the lands.

The general trespass statute of our state would not cover the factual situation that it could here.

Justice John M. Harlan: Can you give me the citation?

Mr. Jack P. F. Gremillion: Unfortunately I -- I do not have it with me.

I didn't think they form a portion of this case but I would be very glad to provide that to the clerk for you.

Justice John M. Harlan: Alright, thank you.

Justice William J. Brennan: Mr. Attorney General the penalties are on the general trespass statute?

Mr. Jack P. F. Gremillion: No, but they are the same approximately.

They are misdemeanors.

They have provided for a fine or I believe one year in jail up to a thousand dollars after discretion of the Court or depending upon the facts of the case.

Chief Justice Earl Warren: Had you -- had your Supreme Court held that your general trespass statute did not apply to businesses like this?

Mr. Jack P. F. Gremillion: Well, it was -- no they had never had held but it was always the contention of the District Attorneys and others that the general trespass statute would not apply to a situation where individuals came in to a place of business such as happened here and took possession of it because the general trespass statute did not cover such a situation.

And that's why we pass this statute; we wanted to spell it out.

Justice Tom C. Clark: Is it -- has it been applied to any group except Negroes?

Mr. Jack P. F. Gremillion: Well, --

Justice Potter Stewart: It is applied to Jews?

Mr. Jack P. F. Gremillion: -- I can't say -- it's been used in several court prosecutions in the state.

How many?

I do not know.

But we published a booklet on the number of our -- we published the booklet on the number of ads that it's been used.

It's been used to about 40 or 50 times since it's passed indiscriminately both white and colored, I mean, regardless of race, creed, or color.

There's been no distinction, Your Honors, what I'm trying to point out to you.

Justice Potter Stewart: Is it applied to people like the Americans with Mexican ancestor?

Mr. Jack P. F. Gremillion: Well, I'm sure that it would apply to them if one had committed the particular crime.

But our State Supreme Court --

Justice Potter Stewart: And --

Mr. Jack P. F. Gremillion: -- Your Honor went in to that very Catholic in his decision, when it discussed the constitutionality of its statute and its application.

And of course I don't want burden this Court by reading that to you but it's in the record --

Justice Tom C. Clark: Yes, we -- yes I'm aware.

Mr. Jack P. F. Gremillion: What's that?

Justice Tom C. Clark: Yes, I'm aware of the opinion.

Mr. Jack P. F. Gremillion: You are aware?

Justice Tom C. Clark: Yes.

Mr. Jack P. F. Gremillion: Alright.

But I just want to save time because I need to talk about something that we all know about.

Justice Arthur J. Goldberg: General, have made several references to people coming in and taking possession but surely there's a difference here.

These people were invited into the store, weren't they?

Mr. Jack P. F. Gremillion: Well, that is true.

Justice Arthur J. Goldberg: And thus --

Mr. Jack P. F. Gremillion: But -- but after they -- after they were invited in as customers and they went to this particular place of business, the store manager walks ups and says, I cannot serve you.

I am asking you to leave our premises.

Justice Potter Stewart: They say, I cannot or I will not?

Mr. Jack P. F. Gremillion: Well, I thought they could make any difference when he said, I cannot --

Justice Potter Stewart: It might make a great deal of difference.

It's a matter of semantics that are not important --

Mr. Jack P. F. Gremillion: Yes.

Justice Potter Stewart: But if he said, I cannot that meant that he was being coerced.

Mr. Jack P. F. Gremillion: But there is no evidence of coercion in this case, Your Honor.

There's absolutely no evidence of coercion in this record whatsoever.

Justice Arthur J. Goldberg: What about the statement, General -- once made by the Mayor and chief of police.

Mr. Jack P. F. Gremillion: I'd be very glad to discuss that.

Now, you must bear in mind, that these sit-in demonstrations occurred just about the time we were having sit-in demonstrations all over the south.

And feelings were rising high.

We had a sit-in demonstration at Woolworths which caused the Superintendent of Police to issue that particular statement, but that was on a Friday.

On the next Saturday, we had a picketing fiasco at another store in the French Quarter in New Orleans.

It turned out not to be in a peaceful picketing at all and in fact, the police were not there of course, they're too being called.

And the picket were running the pedestrians over the street and making them run out into the narrow streets of the French Quarter.

And there was a tremendous excitement prevailing that could have blown-up in any minute and we could have had race riots.

That was when after that particular cause and incidentally those individuals have been charged with obstructing a public passage way and making pedestrians get off.

And that case was tried and they were convicted in the lower court is now in the Supreme Court of Louisiana.

And I imagine we'll be having it up here sooner or later.

But anyway --

Justice Hugo L. Black: (Inaudible)

Justice William J. Brennan: Possibly, a Yick Wo case.

Mr. Jack P. F. Gremillion: A what, sir?

Justice William J. Brennan: Yick Wo, you know the Yick Wo case?

Mr. Jack P. F. Gremillion: Yes.

I don't think so.

Justice William J. Brennan: Where the law was -- it is a law that used against a race, a group, one group.

It has the label Negro on it.

That had the label of Chinese on it, the Yick Wo case?

Mr. Jack P. F. Gremillion: Well I don't -- I don't think that these laws were used indiscriminately against Negroes in this particular, I do not.

And I don't think there's any proof in this record --

Justice William J. Brennan: I was just --

Mr. Jack P. F. Gremillion: -- it will indicate that.

Justice William J. Brennan: I will just listening to what you're saying.

Mr. Jack P. F. Gremillion: Yes, Your Honor.

Justice Hugo L. Black: Now we're were we?

Mr. Jack P. F. Gremillion: We were talking about the Mayor's statement --

Justice Potter Stewart: Talking about the --

Justice Hugo L. Black: The mayor's statement?

Mr. Jack P. F. Gremillion: Yes.

Justice Hugo L. Black: Alright.

Mr. Jack P. F. Gremillion: So then -- so then Mayor Morrison issued his statement.

Now, I can read those statements very carefully.

I've read them again this morning When Mayor Morrison refers to so-called peaceful picketing, what he meant was something that was attempting to be conducted under the guise of law which could possibly obstruct the peace and harmony of the community.

And that's why those statements were issued.

They were issued purely as the ministerial function of the Mayor and his chief law enforcement officer.

It is significant to note that the Mayor at no time said he was sending police to these department stores.

At no time did he say that he was going to take the law into his own hands.

And reading these, you can only come to the conclusion that here was the Mayor of a great city, a great mayor, a distinguished mayor, who was doing his job, under the Constitution of his state and the Constitution of the United States to maintain peace and order.

Now, Mr. Justices let me ask you this and this is one of the dilemmas that Louisiana face -- faces.

When we in cases of this kind call upon our police, which we've certainly got a right to do after an occurrence has happened such as this.

If we fail to maintain the peace and tranquility of our community by the use of our own police which is paid to do that.

If we fail to do that, we are castigated before the eyes of the nation and the press.

The first thing, you know, we've gotten marshals and in some cases troops.

Then if we don't take care of our people, if we don't use our police to maintain law and order in a community, we come before this great tribunal claiming that their rights have been violated as the result of certain sections of the Due Process Clause of the Constitution.

Now, what are we going to do?

The only thing that we can do is exactly what's transpired in this case.

I say to this Court that Mayor Morrison is a man of moderation and so is Chief Giarrusso.

He'd been an outstanding mayor and he acted without discrimination whatsoever in this case.

He had just run for governor in that law the Negro votes.

Certainly, he wasn't going to turn around and repudiate him and furthermore I say to this Court that the President of the United States would have never appointed Mayor Morrison as the ambassador to organization of American States if he had it in anyway discriminated against anybody in the City of New Orleans.

So I attach no significance whatsoever.

It certainly not a part of the race just type of this case.

It was not a directive to any storeowner that they get to together.

It was not a directive to a storeowner to call the police, nothing was mentioned about that.

Justice Arthur J. Goldberg: Doesn't this record clearly plainly indicate that was the storeowners didn't get together prior to the particular demonstration which is here involved?

Mr. Jack P. F. Gremillion: Mr. Justice, my answer to that is that it wouldn't have made any difference if they have got together and discuss it because it doesn't constitute state action.

Because private citizens and owners private property can get together and discuss the problems --

Justice Arthur J. Goldberg: What about getting --

Mr. Jack P. F. Gremillion: -- no more than they would get together and discuss their income tax problem, the federal income taxes, would you say that that would be federal action?

Justice Arthur J. Goldberg: But General what -- what if they got together with the police?

Mr. Jack P. F. Gremillion: But they did not get together with the police.

And there is no evidence in here to prove that they have got together --

Justice Arthur J. Goldberg: But weren't the petitioner's -- weren't the defendants foreclosed by the trial court from offering that evidence?

Mr. Jack P. F. Gremillion: Yes, because of the fact it's absolutely irrelevant to the prosecution of the crime.

And even if they had proved it that these people have discussed such a situation before it, it's still would be immaterial because all they were talking about was the question of what their property rights are.

I repeat --

Justice John M. Harlan: We don't know.

Mr. Jack P. F. Gremillion: -- but this --

Justice John M. Harlan: We don't know --

Mr. Jack P. F. Gremillion: But if your -- Mr. Justice Harlan I say to you that even if they had shown that there have been discussions --

Justice John M. Harlan: (Inaudible)

Mr. Jack P. F. Gremillion: -- it would have still been immaterial because -- they could --

Justice John M. Harlan: (Inaudible) the policy of whatever it was and keeping these Negroes out and he said, alright, would that be a relevant?

Mr. Jack P. F. Gremillion: Alright.

If such a thing was possible and had been proved and surely it would have been allowed but he (Voice Overlap) wait just a minute.

Justice John M. Harlan: Well they -- they was allowed to in anything.

Mr. Jack P. F. Gremillion: But these people were defended by their competent counsel.

He had Chief Giarrusso on the stand.

He had Morrison on the stand.

He only called them as witnesses on the motion to quash.

He didn't call them on the trial of this case.

He had that right.

He had that opportunity to prove that and did not avail himself of it.

So that was even he failed to do that it didn't exist.

Now, if this Court wants remand the case for the taking of that evidence, I shall move.

Justice Arthur J. Goldberg: General, would you have said as a very experienced lawyer which you are is very able in that in light of the rulings of the trial court in this case where such evidence was offered any purpose would have been served by a counsel further pursuing this into trial court made it very clear.

I refer to page 94 of the record that he would not admit evidence on the question of whether what was discussed with the police.

Mr. Jack P. F. Gremillion: Well, I --

Justice Arthur J. Goldberg: And then Mr. Nelson object and reserve his objection on that point?

Mr. Jack P. F. Gremillion: And the Court went into that very thoroughly.

They said that it was absolutely immaterial.

He didn't offer to prove to concert and apparently did they offer any proof of concertion or solutions, or cooperation to deny to buy anything.

You can look to Mr. Nelson's objections and he never called that to the Court's attention.

Justice Arthur J. Goldberg: Well, look at page 94 again if you will.

Mr. Jack P. F. Gremillion: Yes.

Justice Arthur J. Goldberg: Doesn't he call that to the Court's attention when he said that his purpose in offering this evidence is to show what state policy is?

Mr. Jack P. F. Gremillion: But it's been held in the Howard Johnson case that regardless of what state policy is that that is not -- that come within the scope of state action under the Fourteenth Amendment.

Our Supreme Court went into that very thoroughly in its opinion.

Justice Arthur J. Goldberg: But are you arguing that if the State here directed the storeowner not to admit Negroes it would not be state action?

Mr. Jack P. F. Gremillion: Mr. Justice Goldberg, I say this.

That if the -- oh yes, I've been reading here of that, that there are definitely.

I also say this, that if the manager and it got together with all the managers and it's decided that they were going to segregate their colors and that -- then he comes around to change his mind, and called the police and someone sued him rather as a result of his breaking the agreement.

That that could of course be state action, likewise, if you had decided that, say he was a great advocate of civil rights and in his own mind his interpretation of what the custom was that he had decided, he was going to serve everybody indiscriminately.

And that group of each citizen called the police and one of them had the police arrest him, do you understand?

Then that would be state action, but that is not what happened here.

What happened here is that you had a bunch of people who moved in deliberately with design sat down and said, I want service.

The manager says, I'm not going to serve you.

The police had never been called.

The police had never been contacted.

The police gave him ample opportunity to leave and reluctantly arrested them after they had been in that count of some 20 and 25 minutes.

So as -- as I -- yes, Your Honor?

Chief Justice Earl Warren: Excuse me -- Mr. Nelson wanted to conduct his cross-examination and direct it to this language of the Mayor in his public statement.

I have today directed the Superintendent of police that no additional sit-in demonstrations or so-called peaceful picketing outside retail stores by sit-in demonstrators or their sympathizers will be permitted.

And then jumping over to the end of it, It is my determination that the community interest, the public safety, and the economic welfare of this city require that such demonstrations seized and that henceforth, they be prohibited by the police department.

Now, would you discuss whether that represents state action in as much as the Mayor is the -- is the chief officer of the city and the Superintendent is his -- is appointee and subordinate to him.

Mr. Jack P. F. Gremillion: Well, my answer to that would be this, Your Honor.

Again, he was speaking about his customers, but when --

Chief Justice Earl Warren: But where in the Court did he say so?

Mr. Jack P. F. Gremillion: Well, that's what he's talking about --

Chief Justice Earl Warren: Where -- where did they -- where did he say so?

Mr. Jack P. F. Gremillion: I'm looking at it, Mr. Chief Justice, from the standpoint of what Mayor Morrison meant by that.

Chief Justice Earl Warren: Well, alright.

Well now, why -- why not use, why not apply the language that he used in there to -- to indicate that?

What did he say in there to establish your position?

Mr. Jack P. F. Gremillion: But I come back to this.

He did not call the Mayor on the trial of this case and asked him a single thing about that.

These sit-ins happened after the statement of the Mayor.

So apparently it had no effect.

He never discussed with Mr. Barrett during the trial of this case whether Barrett ever new about the existence of those particular statements and I don't think --

Chief Justice Earl Warren: He couldn't -- he couldn't go into that --

Mr. Jack P. F. Gremillion: And I don't --

Chief Justice Earl Warren: -- could he?

Mr. Jack P. F. Gremillion: I don't think that -- I don't think that that constitutes state action, because I think that all that the Mayor was trying to do was to maintain peace and order.

And it is a fact that these sit-ins occurred and Mr. Nelson said very quietly without any passion whatsoever.

And of course, the State police was not there to stop them as the result of this statement by the Mayor.

The statement by the Mayor to me is whether as the Chief of Police is strictly one of maintaining peaceful situations in the City of New Orleans.

He noted in his statement that he didn't say anything about peaceful picketing, he's talked about so-called peaceful picketing.

Justice Hugo L. Black: Well, I suppose you would agree, General, wouldn't you that even they didn't have any law on the book, if the law wants to enforce customarily of the common practice that that would be the same as though it were written on the books?

Mr. Jack P. F. Gremillion: Oh no, I don't agree with that --

Justice Hugo L. Black: What would you do with --

Mr. Jack P. F. Gremillion: -- I don't think that we ask them all --

Justice Hugo L. Black: We had them in those cases of that time.

Mr. Jack P. F. Gremillion: I don't -- I don't think that --

Justice Hugo L. Black: Not particularly in this field and then all them but --

Mr. Jack P. F. Gremillion: I --

Justice Hugo L. Black: They had a case where down in Tennessee the question of denial of equal protection of the law has came up on Texas.

The book said one thing but the practice was another.

And we said that if the practice was this, even though it was not written on the statute who decided the case according to the way what actually happened as in the Yick Wo case to which Justice Douglas called your attention.

It doesn't make any difference about what law is written on the book if the states to its official, I would say, I would think you would go that far.

Mr. Jack P. F. Gremillion: Well --

Justice Hugo L. Black: Because I think your defense is the one which you've mentioned at first but have not mentioned in what sense that you have what is in effect the trespass after warranting or trespass when a man has been warned to get out.

I see no difference between the two.

Mr. Jack P. F. Gremillion: That's correct.

Justice Hugo L. Black: That's what you have.

Mr. Jack P. F. Gremillion: That's correct.

Justice Hugo L. Black: Now, if you have that but even that law is used constantly and continuously and by agreement of officials, for the purpose of prohibiting something which you cannot -- the State cannot prohibit to it and I suppose you would agree that the State couldn't pass the law to make it illegal for a merchant to serve a colored man, wouldn't you?

Mr. Jack P. F. Gremillion: I agree with that, Your Honor --

Justice Hugo L. Black: Yes.

Mr. Jack P. F. Gremillion: And that's why -- we don't have such --

Justice Hugo L. Black: That's right.

That's right.(Voice Overlap)

Mr. Jack P. F. Gremillion: -- that into a state --

Justice Hugo L. Black: Well, I thought you were that being the case.

If you all -- if you have such a law in actual practice although it's not written on the book.

And that law which is an actual practice among your officials were utilized here, how could you escape the fact that that was that state action?

Mr. Jack P. F. Gremillion: Because I think that the cases show that the merely utilization of the courts is not sufficient state action as it covers the Due Process Clause of the Fourteenth Amendment.

Justice Hugo L. Black: But one could have -- one could agree with your holding on that.

Mr. Jack P. F. Gremillion: But the question that we have here to finally premise one that you're talking about but does this really constitutes state action?

Justice Hugo L. Black: Well if --

Mr. Jack P. F. Gremillion: Now, what happened in this particular instance --

Justice Hugo L. Black: If they could have prove that the Mayor of the city and he has a good deal of power whether -- whether the statute says that in that he goes turn and said now, We want this stopped, these sitting-in.

We're not going to -- we don't care whether you want it stopoed or not.

Mr. Jack P. F. Gremillion: But he is talking about unlawful --

Justice Hugo L. Black: I know but suppose he said that and he said, if we're going to have the police read it, you call it.

Mr. Jack P. F. Gremillion: Oh, I would agree to that, Your Honor.

Justice Hugo L. Black: Well then, why shouldn't the man be allowed when you said that these are to try to prove that fact?

Mr. Jack P. F. Gremillion: Because that didn't not -- did the factual situation as it occurred here.

Justice Hugo L. Black: We don't know --

Mr. Jack P. F. Gremillion: The only necessary -- the only you can --

Justice Hugo L. Black: How can you know?

Mr. Jack P. F. Gremillion: The only necessary --

Justice Hugo L. Black: Unless they have permitted to offer the evidence.

Mr. Jack P. F. Gremillion: The only necessary ingredient to this crime is to show the possession -- is to show the others to leave and to show the continuance of the remaining.

And that was all that was necessary for this particular conviction.

Justice Hugo L. Black: Now, I draw --

Mr. Jack P. F. Gremillion: Now all --

Justice Hugo L. Black: -- a distinction to myself.

I like to call your attention to it.

You're reluctant to meet that situation.

For myself, I draw and decided a distinction between what the State can enforce where the owner of property wants to protect it for certain uses, has a right to do it and one where the police or the State steps in and says, irrespective of what you want, I think I wrote someone on that in the Struthers case.

Justice Potter Stewart: Yes.

Justice Hugo L. Black: Irrespective of what you want, we won't --

Mr. Jack P. F. Gremillion: That was before --

Justice Hugo L. Black: -- we want you -- we want to stop this thing and therefore you sit-in blacks and we'll arrest you.If they said that, you would agree I suppose that that would be state action.

Mr. Jack P. F. Gremillion: I would agree with that, Your Honor.

Justice Hugo L. Black: Well, I'm asking you now, but this only point on that is, that he was denied the opportunity to offer evidence.

Mr. Jack P. F. Gremillion: Well --

Justice Hugo L. Black: To show it if he could, maybe he couldn't?

Mr. Jack P. F. Gremillion: I must be quite frank with you and tell you that if that was in the record, I would agree with you.

But it is not in the record and it's not the State's fault that he didn't call the Mayor and the Superintendent of Police to prove that particular point even though he was not allowed to introduce that evidence by a question of Mr. Barrett.

Justice Hugo L. Black: Why should a lawyer do that when the Court tells him in advance?

We're not going to have any evidence on that subject.

Justice Byron R. White: Well, General --

Mr. Jack P. F. Gremillion: Yes.

Justice Byron R. White: (Inaudible)

Mr. Jack P. F. Gremillion: I don't quite understand who you're talking -- you mean -- you mean the store manager?

Justice Byron R. White: Some people say the question is whether or not the store owner had decided his own, the discretion of his own decision.

And that gentleman is on the stand that being somewhat significant to acquire to whether or not this is of the State's decision as repeatedly be excluded.

And if when he asked the question, he said he -- the question was whether if their decision was a matter of conforming to State policy or not.

Mr. Jack P. F. Gremillion: Yes.

Justice Byron R. White: And this was the direction of which apparently he was headed.

Now, it's true that he might have gotten that this in other ways.

But in the long run, he would -- it would be most sensible, I would think, to get out through the owner of the store even if he had the Mayor and the policeman on the stand.

The police chief on the stand, he still, I would think, would feel some compulsion to get at this matter to the storeowner.

Justice Hugo L. Black: I understand you.

Mr. Jack P. F. Gremillion: Well, Mr. Justice White all of that -- the answer to that is cover the in Judge Cox denial of the motion to quash and also in the judgment of the Supreme Court of the State which is for that --

Justice Byron R. White: How is that general?

Mr. Jack P. F. Gremillion: Say it is covered --

Justice Byron R. White: Yes, but how is it covered?

Mr. Jack P. F. Gremillion: It's discussed in the --

Justice Byron R. White: Well, what's the anwer?

Mr. Jack P. F. Gremillion: Could you just bear with me just for a second.

Here it is on page 146 of Supreme Court's opinion.

The defendants sought to introduce evidence to establish that the action of the manager of McCrory's was provoked or encouraged by the State.

And that they would have this Court hold at this action of McCrory's was not of its own voluntary action, it was influenced by the officers of the State.

The conclusion contented for as incompatible with the facts rather the testimony supports a finding as a manager of McCrory's had for the past several years for few service to Negroes, that the policy the store was established by him that he'd setout the policy he founded consistently.

That Negroes had habitually been granted access to one counter and within the store and it deliberately provoked mischief and disturbance such as the one he complained of here had not previously occurred.

In the -- passed to other Negroes could have mistaken to take sits encountered question and they were told to move and cooperate, and recognize the request of McCrory's employees and had said that the counter set side from him.

Even under the provisions of requested statute, it is apparent that the prosecution is dependent from will of the proprietor.

For all that after he is automatically intrudes to relinquish possession of his place of business that a violation of the statute occurs.

The State therefore without the exercise of propriety would define no basis under the statute to prosecute and then it goes on --

Justice Byron R. White: Well I'm -- I still don't have --

Mr. Jack P. F. Gremillion: Well I -- I know that you were not properly answer that and I must admit (Voice Overlap) --

Justice Byron R. White: I don't know if there is any answer there specifically to the question --

Mr. Jack P. F. Gremillion: Mr. Justice White, I will agree that we are probably weak on that particular point.

But it will just so be it as far as we're concerned if this Court says that it should have been allowed and the Court is not going to do by except of his mandate.

But we don't feel that their rights were violated in this respect at this particular trial because of the provisions of Louisiana law.

And the Court went into that quite thoroughly and I'll just have to stand on the decision of my Supreme Court.

Chief Justice Earl Warren: General, you said that a few moments ago that the Mayor was speaking only of unlawful demonstrations.

So, would you show me in his statement please where he says he's only referring to it.

Mr. Jack P. F. Gremillion: No, he doesn't come right out and say that.

But certainly I don't think anyone would understand that he was trying to say that he was referring to anything but violations of the law.

In other words, I'm being extended about this as I possibly can.

And I'm looking at -- I'm considering what -- what occurred, these three demonstrations and why the Mayor did this and I've never talk to him about it.

I've never discussed it with him.

And I suppose that we can draw that anyone can draw his own inferences from his statement.

But I repeat that I think that his statement was one purely of a ministerial nature in which he was trying to maintain the peace of the community.

Because he went ahead and quoted in his statement, Mr. Chief Justice, Act 17 of the 1960 legislature by disturbing the peace.

He quoted another provisions of Act 70.

He quoted 80 which was obstructing public passages and the restraining of traffic.

And looking at it from the overall picture, I don't think -- I think he was directing his statement to the entire population of New Orleans and not to one specific group to restrain themselves and to act in a lawful manner.

Now, that's what I get from it and apparently that's what the Court got from it and I repeat that Mayor Morrison is certainly a man of moderation.

He's very liberal with his thoughts and I don't think that he ever had in mind the utilization of the police force that he's an officer or anybody to take anyone's rights away.

And I repeat that certainly these sit-ins occurred some four or five days after his particular statements so it must have been a situation whereby these individuals wanted to provoke some action where they could come under the cover in the cloak of the Fourteenth Amendment and have their prosecutions voided.

Chief Justice Earl Warren: He wasn't speaking to general public when he said this: I have carefully reviewed the reports of these two initial demonstrations by a small group of misguided white and Negro students, or former students.

It is my considered opinion that regardless of the avowed purpose or intent of the participants, the effect of such demonstrations is not in the public interest of this community.

Mr. Jack P. F. Gremillion: That is correct.

Now, in all candor, he's not that speaking about the policy of the State which was one in favor of segregation.

That I admit, we admitted in our brief that's what he is talking about.

Chief Justice Earl Warren: He's talking about maintaining that policy of segregation.

Mr. Jack P. F. Gremillion: He's talking about a policy or a custom which --

Chief Justice Earl Warren: Yes.

Mr. Jack P. F. Gremillion: -- people in my State had practice that was since we became a union, ever since we were readmitted to the union and which -- as our Supreme Court said that's practiced freely by both white and black.

Chief Justice Earl Warren: And he was --

Mr. Jack P. F. Gremillion: But let me tell you something, Your Honor --

Chief Justice Earl Warren: Well, may I just ask --

Mr. Jack P. F. Gremillion: Yes.

Chief Justice Earl Warren: -- just one more question.

And he is insisting in the statement that that be adhered to?

Mr. Jack P. F. Gremillion: Oh yes.

Absolutely, because he -- as he says, it's not in the public interest and he does not want any unlawful acts to occur.

That's what I draw upon.

We were talking about inns and in that connection let me go into this.

We were talking about the inns and hotels and you've talked to the other states about that.

We have no such statute in that respect.

But, talking about the policy of the State, just recently a motel was opened up in Baton Rouge, it's called the International Motel.

And they've got signs all up and down the highway.

You know what they got on the bottom of those signs in big -- owned and operated by and for colored people only.

We've got the Lincoln Hotel in Baton Rouge the same way.

We've got hotels in New Orleans the same way.

We've got tourist courts in Lafayette.

We've got tourist courts in Lake Charles and Shreveport.

And it's publicly, they said, This is for colored only?.

Now, who made them do that?

Strictly, the policy of State that's all.

Negroes are doing it just as much as white people, are we to be condemned if they do that, can you say that a policy is state action under the Due Process Clause of the Fourteenth Amendment?

Justice Tom C. Clark: I suppose --

Mr. Jack P. F. Gremillion: The civil rights cases hold otherwise and I agree with the gentlemen up here from Baltimore, wherever he was from, yesterday when he said that to reverse these convictions, you have overrule civil rights cases.

And I said quite frankly, I agree with you as to what the law is now I believe to overrule this if you approach it from the facts of the law that you have to overrule the Civil Rights Acts which of course will give us by decision of this Court, if you do that in National Civil Rights Policy.

Justice Tom C. Clark: I suppose that we have the same case that we have today if a white man was thrown out of a Negro restaurant.

Mr. Jack P. F. Gremillion: We surely would.

And if he would go into that International Motel that I'm talking about to seek a room, why you'd have another astronaut coming out of Baton Rouge.

Let me tell you another little incident now, Mr. Justice.

Let me tell you no one -- well I'm not trying to be fastidious with the Courts I -- I --

Justice Hugo L. Black: You conceded.

Mr. Jack P. F. Gremillion: I really was trying to tell you what it would be.

Now, we have a case that I'm sure it's going to end up here.

I have a Negro in Louisiana charged back with rape.

Justice Tom C. Clark: Yes.

Mr. Jack P. F. Gremillion: And he claims that his constitutional rights have been violated because Negroes have been systematically included in the jury pounds and he wants to be -- he wants to be tried by an all white jury.

Now, he had one for the books.

So I'm only bringing that out to tell you what the policy of my state is what the custom has meant.

And it hasn't been enforced by white people.

It always been enforce by Negro thought as well.

We've got a little community down at Houma, Louisiana which is sort of an Indian tribe.

A mixture of French and Negro and they've got their own school, they want their own school, they tell the School Board they want nobody else in there, they don't want white people.

They don't want colored people.

They don't want others.

They want their school.

Those are things that are just innate.

Those are the things that are positive and there's no law that requires them.

They just do that.

They segregate and state onto themselves.

Yes, gentlemen this is a serious question.

I realize that all of these cases are ticklish because they involve prejudices and we've got prejudices all over the United States not only in the State of Louisiana.

In fact, I'd we've got more throughout the United States and we have in our State.

We don't -- we don't try to hurt anybody.

I don't issue opinions in my office.

This opinion is for black and this opinion is for white.

I don't have segregated signs in my office.

I receive all the races in my office Mexican, red, green and all, the Irish.

Chief Justice Earl Warren: But General said in --

Justice Arthur J. Goldberg: (Inaudible) of what has happened, then what the Mayor was saying in his statement was, that it was not conducive to the best interest of the city to have these segregated eating places in New Orleans.

And therefore, he was instructing the Police Department to prohibit any effort to desegregate restaurants, isn't that what he was saying in effect?

Mr. Jack P. F. Gremillion: No, I don't think so, Your Honor, because he did say that he knew of no integrated eating places as well as the chief.

But I come back to the fact when you read his statement in view of what had occurred, what was in the papers about the sit-ins in the rest of the cities and about the two that it already happened in New Orleans.

That he was a appealing to the prior, to the intellect, and to the peace loving people of the City of New Orleans.

And that that's all that he was trying to do.

And now the reason I say that is because if he had met otherwise, he had the power to take police in station him McCrory's, in Captain (Inaudible), in Woolworths, in Kress, and all of those stores, but he did not do that.

He allowed those people to conduct their business as they wish and as they saw fit.

And that is further proven by the facts that this is in the Government's brief and Mr. Nelson admitted it yesterday.

That these storeowners have gotten together and decided they were going to open the lunch counters to everybody which was done just recently.

So --

Justice Byron R. White: General (Inaudible) the action of the store?

Mr. Jack P. F. Gremillion: No.

No, it is not.

There is no one -- there's no evidence showing any connection whatsoever between the Mayor's statement and the fact that the store manager knew about it or that he used the Mayor's statement as the basis of his decision.

Justice Byron R. White: Well, the only -- the only -- is the only fact that the storeowner that he was following local custom?

Mr. Jack P. F. Gremillion: The storeowner said he was following local custom as determined by him.

And that he had followed that policy for years, and that he had followed it with other cities and if that was his prerogative, and he is alone.

Justice Byron R. White: Is there any evidence that he knew or heard or being --

Mr. Jack P. F. Gremillion: No.

Justice Byron R. White: -- read the Mayor's statement?

Mr. Jack P. F. Gremillion: No.

There is no evidence.

And I stated that earlier, Mr. Justice, there is no evidence to that effect that I know of.

Chief Justice Earl Warren: You didn't say in this case -- didn't the storeowners say that he was following the local custom law and something else?

Mr. Jack P. F. Gremillion: Oh yes, because that was his instruction --

Chief Justice Earl Warren: So he was -- he was following the law?

Mr. Jack P. F. Gremillion: No.

But we had no law.

You see that's his statement.

Chief Justice Earl Warren: What --

Mr. Jack P. F. Gremillion: That his statement though tradition law --

Chief Justice Earl Warren: Yes and you would found that (Voice Overlap) --

Mr. Jack P. F. Gremillion: Because in other -- because in other (Voice Overlap) --

Chief Justice Earl Warren: -- you finally have --

Mr. Jack P. F. Gremillion: -- Mr. Chief Justice upon of it --

Chief Justice Earl Warren: Yes, go ahead --

Mr. Jack P. F. Gremillion: -- this is important.

Because in other communities such as a case we have here, you do have laws.

And that's what he was talking about.

There was no state law written or unwritten on this particular subject.

Chief Justice Earl Warren: Well --

Mr. Jack P. F. Gremillion: He was exercising his own right of choice.

And there is no connection?

Chief Justice Earl Warren: Justice --

Mr. Jack P. F. Gremillion: -- whatsoever.

Chief Justice Earl Warren: -- Black was just pointing out to you a few moments ago that whether the law in specific terms required such a conduct that if the administration of the authorities were such that it did that it constitutes state action.

And here they wouldn't even let the counsel for the defendants interrogate the owner as to what his conversations were with the police prior to the time that this all happened?

Suppose they have discussed --

Mr. Jack P. F. Gremillion: But didn't -- he said in the record that he hadn't talk to the police if I'm not mistaken.

He said he hadn't talk to the police.

The police didn't tell him what to do.

That was brought out here in the trial of the case.

He ask -- he talked to the policeman, he says, What must I do?

And the policeman says, All you can do is to ask them to leave.

And he says, but he had already done that, do you understand?

Chief Justice Earl Warren: No, I don't quite understand.

That I didn't quite understand in that way, General.

I thought that --

Mr. Jack P. F. Gremillion: Yes.

Chief Justice Earl Warren: -- Mr. Nelson wanted to inquire what the relationship between the manager and the police was before this thing happened and the trial judge would not permit him to answer the question.

Mr. Jack P. F. Gremillion: Well --

Chief Justice Earl Warren: But --

Mr. Jack P. F. Gremillion: Let me say this --

Chief Justice Earl Warren: -- whatever it is, if it's in the record we have it, don't worry.

Mr. Jack P. F. Gremillion: But if -- if it was -- if it was denied to him.

If I would've been defending those people, I would sought some other way to get it in.

And I don't think that Louisiana should be held responsible for the negligence of -- because the attorney is competent as my friend in Louisiana maybe.

Chief Justice Earl Warren: But you would have thought it was immaterial?

Mr. Jack P. F. Gremillion: No.

Not if I have been an Assistant District Attorney or if I had been a judge, no, because it was not sufficient to prove the material or the res gustae, or the essential allegations for a conviction.

And in that, I know Judge Clark very well.

By the way, you --

Justice John M. Harlan: (Inaudible) the evidence we have here.

There would still have been left the question of whether or not the storeowner was or wasn't exercising his own choice.

Mr. Jack P. F. Gremillion: But that was proven, Your Honor.

That was proven.

That actually was proven that he alone made that decision, that's in the record.

Justice Hugo L. Black: But this unlike many other defendants as I read the record.

He didn't want to stand on but it didn't set up at time, he wants to offer another evidence and show that was not (Inaudible) and if that's true, if it was the choice of the Mayor which he follows rather than his own, then of course the principle on which you stand, the owner has a right to act on his own judgment wouldn't apply, would it?

If it was the choice of the Mayor rather than the -- and the police rather than --

Mr. Jack P. F. Gremillion: Oh yes, I see what you're getting that.

Oh yes.

If the Mayor had sent instructions out by public and so forth, and said, Now look, you don't let anybody come in here that would have been state action, there's no doubt about it.

Justice Hugo L. Black: There is one thing --

Mr. Jack P. F. Gremillion: But that did not happen in this case.

Justice Hugo L. Black: If one thinks that the record leaves that question unanswered because the Court right -- have mistaken there are -- whatever it was, made or mistaken and not let evidence get in, then of course the case should be reverse, doesn't it?

Mr. Jack P. F. Gremillion: Well, I don't see that it should be reverse.

Justice Hugo L. Black: Well, I understand that (Voice Overlap) --

Mr. Jack P. F. Gremillion: Sent back if there is crucial evidence.

Justice Byron R. White: General (Inaudible), I don't let anybody in the store and the department store hadn't anyone in the store into the lunch counter.

Mr. Jack P. F. Gremillion: That would have been state action.

Justice Byron R. White: Well it would have been a state action because you still have a question left of the -- of whether or not the storeowner say, I agreed with the Mayor no matter what the Mayor said I would have done anyway.

If he had told me to let them in, I was going to leave that and I was going to keep them out.

Mr. Jack P. F. Gremillion: Well --

Justice Byron R. White: Isn't there still -- has the question of whose will, whose decision it was?

Mr. Jack P. F. Gremillion: Well now, I don't think so, Mr. Justice White, because the -- all of that was thoroughly going into both on the motion to quash and both on the trial of the cause that Mr. Nelson cross examined Mr. Barrett and Mr. (Inaudible) very, very thoroughly and that was brought out.

Justice Byron R. White: So you would say then as to that --

Mr. Jack P. F. Gremillion: That the question of what the National Policy was kept out of the record --

Justice Byron R. White: You will say then that if there was -- if there was an expressed, there was an expressed statement by the Mayor, some other official ruling or directive to keep Negroes out of lunch counters that that implements it.

Mr. Jack P. F. Gremillion: Oh yes.

Justice Byron R. White: When they keep it up -- when they keep him out no matter whose decision it was after that, you would say that -- that the --

Mr. Jack P. F. Gremillion: If there had been some showing that the Mayor or even the Chief of Police said these things -- we're not going to permit him, we're going to put police at the doors.

You were instructed to call us immediately and we will arrest them for you, yes that could be state action.

Justice Byron R. White: Well as long as the -- as long as the Louisiana had had a state law or a municipal ordinance forbidding the storeowners to let Negroes come to lunch counters.

That would -- that would indicate as far as you're concerned.

Mr. Jack P. F. Gremillion: Oh yes.

But we don't have such a statute and we never --

Justice Byron R. White: Regardless of whether -- it would have been constitutionally unsound.

Mr. Jack P. F. Gremillion: That's correct.

But I'm -- I will repeat.

We have no such statute, no ordinance and we never had.

Justice Byron R. White: Yes.

Chief Justice Earl Warren: Mr. Nelson.

Rebuttal of John Nelson

Mr. John Nelson: May it please the Court.

I was on Mayor Morrison's staff for four years as an Assistant District Attorney fully aware of the problems involved in Mayor Morrison's administration.

I might not point out to Court that the reason why they have a sign on Negro motels by colored only is because of a state statute that segregates inns, hotels, and places where people go in.

The Attorney General must have forgotten above that statute or overlooked it.

Chief Justice Earl Warren: Is that statute in your brief?

Mr. John Nelson: No, it is not sir.

But it's still in full force and effect and it's one of the reasons why the New Orleans hotels have never desegregated specifically mentioned.

Chief Justice Earl Warren: Would you mind giving us -- would you mind giving us a citation of that, Mr. Nelson?

Mr. John Nelson: I will.

It's in the Government's brief --

Chief Justice Earl Warren: Well it's in the Government's brief --

Mr. John Nelson: Yes.

Chief Justice Earl Warren: Yes, very well, never mind that we --

Justice Hugo L. Black: Would you say that that occurred?

Mr. John Nelson: It's never been repealed.

It's on the statute right now.

Justice Hugo L. Black: But did you say precisely what it could do?

Mr. John Nelson: It segregates hotels.

The Negro and white cannot live under the same roof together in Louisiana in a hotel in -- today.

And that is not a question of state policy and the reason why this man would leave Baton Rouge as fast as he would because the police would have ejected him not because of --

Justice Hugo L. Black: Would that apply to a store?

Mr. John Nelson: Sir?

Justice Hugo L. Black: Would that apply to a store?

Mr. John Nelson: Sir?

Justice Hugo L. Black: Do they have one covering of the store?

Mr. John Nelson: No sir, they do not.

Another thing, please gentlemen, if you send this case back, give us some directives, some limitations within which we can try this case.

To try cases like this in Louisiana courts today from a defendant attorney standpoint is a trying ordeal.

Particularly when you get the Attorney General of the State that makes statements above race rights due to picketing and maybe that's what Mayor Morrison was referring to, you know what the picketing consisted of?

One picket walking on a sidewalk behind Woolworths on Ardebil Street was arrested.

This is the man that represents him.

This case is now depending before the Louisiana Supreme Court.

This is the case that the Attorney General said it was about to cause race riots and massive picketing, and people picketing push -- pickets pushing people off the sidewalks in the French Quarter, one picket.

Now, there is a -- there is a great deal of play in Louisiana in politics.

The statement is when you run for political office, you play in South Louisiana and you pray in North Louisiana.

Now, this same thing is being done here.

We say one thing in New Orleans and thing here.

And the thing is, is that we are trying to somehow to get into the main stream of a legal life that's going on in United States in Terrebonne Parish the unions.

Do you think they want to segregate themselves?

This is about -- a case is just about the store, it's five Indians.

You know, they force an Indian to go to an Indian school.

They can't go to Negro school or white schools in Terrebonne Parish.

This is not an Indian reservation.

You know they can't go in high school in Terrebonne Parish.

They've got a two room grammar school there.

And when they want to go to high school they have to tree hours to another parish.

Do think they want this as the Attorney General would have you believe?

Members of this Court, basically, this is not a question to eat a hotdog with a white man.

This is a protest and dissent in an effort to change attitudes to try to develop that consciousness of a community to choose justice and equal treatment.

Basically that's what this is.

Justice Potter Stewart: (Inaudible) the restaurants are now intergraded, is it not?

Mr. John Nelson: Yes, sir.

Justice Potter Stewart: So the attitudes that have been change and so far as conduct reflects attitude?

Mr. John Nelson: The attitudes in the city New Orleans have greatly changed.

If by step across the parish line it has not changed just one walk away depending upon where I am.

And there is no question that in the -- in the City of New Orleans the attitudes have been changing.

That's --

Justice Arthur J. Goldberg: Mr. Nelson, your answer in the hotel situation.

I thought that the Attorney General statement was the correct one that the State have previously had statute banning segregation or the requiring segregation and he have appealed that statute, isn't that correct?

Mr. John Nelson: On hotels and motels are desegregated, now am I mistaken, Mr. General?

They say, they have a statute in full force in effect to be segregated.

You mean Negro can walk into the Roosevelt Hotel?

Justice William O. Douglas: No statute -- no statute covering the integration, the public integration of motels and --

Justice Arthur J. Goldberg: Well, I don't want to belabor the point but I -- I have though that what happen said was that there has been a statute requiring segre -- requiring this segregation.

Opening inns to everyone and their statute has been repealed.

Mr. John Nelson: That's correct.

Justice Arthur J. Goldberg: Now, the law now stands there are no statute at all.

Mr. John Nelson: Well, you're talking about a -- the little civil rights statute that we have.

Justice Arthur J. Goldberg: Innkeeper statute.

Mr. John Nelson: If there was until 1954 when it was repealed.

Justice Arthur J. Goldberg: That is correct.

Mr. John Nelson: But today hotels are segregated by statute in the City of New Orleans and the State of Louisiana.

Justice Arthur J. Goldberg: I don't find such a statue quoted in the Government's brief.

Mr. John Nelson: Well, in any event, I will -- I will correct that if I'm mistaken.

If I see --

Chief Justice Earl Warren: If you find such a statute, will you make a memorandum of it with the Court please.

Mr. John Nelson: I will.

If might -- or to New Orleans City ordinance he says, -- but any event I will correct that.

If I might just sum up in a hurry, as I see to this Court the job, the issue here there are three: Number one, the determination of state action in these cases, number two the question of defining the limits within the which a protest might be made in a store which is open to the general public and in defining those limits, you also set a limitation on the power of the State to prevent that particular right being exercised, and the third is brought by Justice Douglas, the question of whether there is state involvement per se in the operation of a store such as McCrory's or Kress or Woolworths.

Now, in so forth --

Justice Hugo L. Black: How could you distinguish between McCrory and Woolworths?

Mr. John Nelson: No sir, they are not.

Justice Hugo L. Black: -- that's for the store.

Mr. John Nelson: -- it's the same, they're identical.

They're identical.

Justice Hugo L. Black: Whether that's corner store where the man lives in it or didn't live in it?

Mr. John Nelson: That there's no one who lives there it would --

Justice Hugo L. Black: I know but you would -- if it would apply to McCrory's and the other, it would have to apply for the smaller ones, wouldn't it?

Mr. John Nelson: It would apply to any store open to the public.

Justice Hugo L. Black: That's right.

Mr. John Nelson: Now, I do not say we don't have to cons -- we do not have to concern ourselves with the question of whether the Metropolitan Club or the Boston Club in the City of New Orleans because you have an element of privacy there.

You have an element of privacy that you don't -- you do not have in McCrory's or Woolworths, or Kress.

And that element may make a tremendous step and so here we concern ourselves with a piece of property that's open to the entire public.

That's the -- that's a public store affair that men have given up their rights to any type of privacy in it.

I -- so the question is on that issue --

Justice William J. Brennan: A retail house there is not being a home?

Mr. John Nelson: No sir.

So on -- on that issue, the question that we're looking for that -- if this Court -- if this case is sent back specifically looking for guidance is whether or not these kids who have protested on this open property or exercising a First Amendment right, and whether that right will be preferred to the corresponding property right of racial discrimination that a man may have, which would of course then be exercised by prosecution and subsequent sentence.

I say if we start with Marsh and which was no state action a privately owned town in Marsh.

And as I appreciate the case --

Justice Hugo L. Black: Marsh, as I recall it, didn't say that a state couldn't have laws that are against trespass, they have to warn you of leaving the property after notice.

Mr. John Nelson: No sir.

But the way I read the Marsh with the privately owned town of Marsh but no state involvement.

This was the day -- this was set up as a characterization of a particular piece of property so as to define the limits of legal rights being exercised on it, apply that to McCrory's.

And then we come up to date on the Shelley versus Kraemer.

And I submit that on the basis of these two cases, as far as I appreciate the jurisprudence, we can come to an answer -- we can come to the -- to the legal conclusion that the preferred right of these kids to demonstrate in a manner in which they did, and the circumstances which were -- within which the act took place and the environment that covered the whole thing that to be accused of trespassing was a depri -- was a violation of their Fourteenth Amendment rights.

Justice Hugo L. Black: May I ask you just one thing.

I don't -- I want to see just the exact link of the argument you've just made.

Mr. John Nelson: Yes sir.

Justice Hugo L. Black: Are you saying that the State is without power by reason of the Federal Constitution or that owners of property of the store were unable because of the Federal Constitution to decide who they'll sell and who they want to sell and the conditions under which they will serve customers of the store.

Do you have to go that far in this case?

Mr. John Nelson: Because of the strong state action in this case --

Justice Hugo L. Black: Well that --

Mr. John Nelson: -- I think we can go that far.

Justice Hugo L. Black: I understand.

I understand that fully.

But the issue, basic issue, when you get to bottom of some of these cases here whether an owner of a store can do this and whether because he has a right to do it, the State can call its officials to help enforce his legal rights.

Mr. John Nelson: In McCrory's, or stores open to public.

Justice Hugo L. Black: Well, all stores open to the public.

Mr. John Nelson: Well not -- not the Morrison's cafeteria in the city.

They stopped at the sidewalk.

I wouldn't say that it was open to the public, not Saenger Theater.

It's a property that's vested -- it has a public faculty about it.

But it's really not open to the public and they might -- they put on white only sign the barbershop that might want just to wait on white man.

The manicurist --

Justice Hugo L. Black: Could they say that?

Mr. John Nelson: Sir?

Justice Hugo L. Black: Could the barbershop say that?

Mr. John Nelson: Could he say it?

Justice Hugo L. Black: But the Fourteen Amendment forbids the barbershop saying that.

Mr. John Nelson: Well Your Honor they --

Justice Hugo L. Black: That it will serve only white or serve only colored.

Why does your argument take it too on the case of that county?

Mr. John Nelson: I won't -- well we're not -- I haven't.

Frankly, to answer your question I have not thought that through yet.

Because they have an element of privacy -- of privacy, an element of privacy in there, that we don't have in the McCrory type situation where you --

Justice Hugo L. Black: But I find a bit trouble to myself.

It's maybe because I'm too liberal.

But I find a great trouble myself seeing some store, some merchant dealers down there can choose their customers and some cannot.

It would seem to me that if the man and the country place could by his door is wide open to everybody who wants to come in and you tell them not to.

He would be governed by the Constitution on that just the same as McCrory or if the Constitution forbids him to choose his costumers on account of color.

Mr. John Nelson: Sir, if the -- if that is the predominant right, every, every dispense of a goods of the City of New Orleans could refuse to serve every Negro, at what point then --

Justice Hugo L. Black: Well, are you -- are you saying that the Federal Constitution without any legislation to back it, bars a merchant from following that course, that is, as I understand it, it's ultimately the basic issue that would sometimes have to be reach in some of these cases, maybe not indeed?

Mr. John Nelson: Not indeed, sir.

And insofar as the -- as to whether the Constitution would prohibit a manager from actually serving the costumer I would approach it on this that I believe that the Constitution would prohibit a Negro from protesting at that very counter if it's open to the public, that he'd not be serve.

And that for that protest I don't think he should be -- the Constitution keep him out of jail.

Justice Hugo L. Black: The question behind that would still be whether he can go into a mercantile establishment against the will of the owner or stay there against the will of the owner in order to make his speech of protest.

Are you saying he could?

Mr. John Nelson: Absolutely, under circumstances of which these demonstrations took place I say this was free speech and they were invited in and they can do it.

I respectfully submit that they can.

Justice Byron R. White: I understand with reference to your argument, that you are in fact saying that no matter what how you answered the question of whether or not a storeowner has the right to discuss it -- that it's unquestionably clear that the State has no right to chose them for it, and that in this case, the State chose them for it.

Mr. John Nelson: That's right.

Justice Byron R. White: That is one of your -- one branch of your argument.

Mr. John Nelson: That's correct.

Justice Byron R. White: And if you're correct on that whether these other questions are in the case.

Mr. John Nelson: That's correct, sir.

Justice Byron R. White: Is that true?

Mr. John Nelson: That's true.

Justice Byron R. White: And it's only if you answer that question in a certain way that you must reach the other branch of your argument you'd stated today in which I didn't understand you stated yesterday, that a store is such an establishment.

That it may not discriminate because a store per se is a state action for the purposes of the Fourteenth Amendment.

Mr. John Nelson: That's correct.

But with the requesting of court possibility that this case may be sent back for a new trial.

And I would respectfully request that that'd be done, that these questions in this case of these issues be defined so that we'll have some guidance to prevent the reappearing in 1964.

Justice Hugo L. Black: May I ask you if we sent back under Louisiana law whether it would now be moot since all of the stores are permitting them to come in?

Mr. John Nelson: I don't think that we --

Justice Hugo L. Black: But I --

Mr. John Nelson: -- I don't think the governor would dismiss these cases.

The environment is not -- that I don't know.

I -- I'm sure it would be moot, be a question of whether the District Attorney would want it just arbitrarily nolle prosequi the cases.

Justice Hugo L. Black: But if they're -- would be moot then, they're moot now.

Mr. John Nelson: Well I don't -- there is -- there is a jail sentence facing these kids --

Justice Hugo L. Black: Well, there still would be but how would it change if these cases were sent back how in terms of mootness would the situation had been changed?

Mr. John Nelson: Well, if they know mootness insofar is concerned.

Justice Hugo L. Black: (Voice Overlap) I mean that somebody has to take some actions before the State would do that?

Mr. John Nelson: That's correct, sir.

Justice Hugo L. Black: But if there had been a statute in that state which forbad this to be done, and the State had changed it, many states hold under those circumstances the pending actions obeyed cannot presume the same thing would be through of the judgment.

Although not a statute, it's a common law it -- it's a custom.

The law has been forbidden and that law changes, their custom changes, the practice of the State changes, the State could well hope if it wanted to and it might that all actions pending on it had obeyed it, but that was the question.

Mr. John Nelson: Your Honor, of course they -- Louisiana and I respectfully submit it would not because it depends -- would not, because the pendency of absolved.

Justice Hugo L. Black: If we affirm this judgment.

We have to do it on the basis on the assumption that this person goes to jail.

Mr. John Nelson: You would.

There's no question --

Justice Tom C. Clark: Perhaps the governor would be soft-hearted in pardoning for something.

We couldn't make that assumption.

Mr. John Nelson: No sir.

Because of the fact there's -- the pendency of so many cases in Alexandria, in Shreveport and in other areas in Louisiana where this is still a vital issue.

Thank you.

Chief Justice Earl Warren: Very well, Mr. Nelson.

Featured: