Steele v. City of Tallahassee Petition for Writ of Certiorari

    Office-Supreme Court, U S

F I L E D
JAN 2 3  1961

Supreme
IN THE JAMES g. BROWNING, Clerk

Court of the UnitecMStates
October Term, 1960

No. 6 7 1  -
HENRY M. STEELE, WILLIAM HAYWOOD 
LARKINS, PATRICIA GLORIA STEPHENS, 

PRISCILLA GWENDOLYN STEPHENS, 
ANGELINA NANCE, BARBARA JOAN BROXTON, 

JOHN ANGLISH BROXTON and 
CLEMENT COLLIER CARNEY,

Petitioners,
v. x

CITY OF TALLAHASSEE,
Respondent.

and
ROBERT K. ARMSTRONG, ROLAND W. EVES, 

DEREK SPENCER LAWLER and JOHN J. POLAND,
Petitioners,

v.
CITY OF TALLAHASSEE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
CIRCUIT COURT FOR LEON COUNTY, 

FLORIDA

TOBIAS SIMON and ALFRED I. HOPKINS 
Counsel for Petitioners 
706 Ainsley Building 
Miami 32, Florida



I N D E X
Page

Citation to Opinion below..................................... -....  2

Jurisdiction .................................................... ............  2

Question presented......................................................  2

Constitutional provisions involved...............-............  3

Statement ................. -..................................................  4

Reasons for granting the writ...................................  11

Conclusion .....................................................................  19

Appendix A — Opinion below ..............................  App. 1

B — Statutes and Ordinances..............  App. 23

C — Motion to Quash and Dismiss 
and
Assignments of Error.................. App. 25

D — Orders Denying Rehearing........  App. 30



CITATIONS
Cases: Page
Sellers v. Johnson, 163 F.2d 877 ( 8th Cir., 1947)....... 16

Shelley v. Kraemer, 334 U.S. 1; 68 S.Ct. 836; 92
L.Ed. 1161 (1948).................................................. 11

Thornhill v. Alabama, 310 U.S. 88; 84 L.Ed. 1093;
60 S.Ct. 736 (1940)................     16

Valle v. Stengle, 176 F.2d 697 (3rd Cir., 1949)........... 12

Marsh v. Alabama, 326 U.S. 501; 90 L.Ed. 265 ; 66
S.Ct. 276 (1946)...................................................... 16

STATUTES and ORDINANCES:

Florida Statutes § 870.02........................................  App. 23

Florida Statutes § 870.04........................................  App. 23

Tallahassee City Code Section 23-14................ ....  App. 24

Tallahassee City Code Section 23-38.....................  App. 24

TEXT:
Pollit: Dime Store Demonstrations: Events and

Legal Problems of First Sixty Days, 
3 Duke Law Journal 315 (Summer, 
1960) _____________________________ 18



IN THE

Supreme Court of the United States
October Term, 1960

No.

HENRY M. STEELE, WILLIAM HAYWOOD 
LARKINS, PATRICIA GLORIA STEPHENS, 

PRISCILLA GWENDOLYN STEPHENS, 
ANGELINA NANCE, BARBARA JOAN BROXTON, 

JOHN ANGLISH BROXTON and 
CLEMENT COLLIER CARNEY,

Petitioners,

v.

CITY OF TALLAHASSEE,
Respondent.

and

ROBERT K. ARMSTRONG, ROLAND W. EVES, 
DEREK SPENCER LAWLER and JOHN J. POLAND,

Petitioners,

v.

CITY OF TALLAHASSEE,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
CIRCUIT COURT FOR LEON COUNTY, 

FLORIDA



2

Petitioners pray that a Writ of Certiorari issue to 
review the judgments of the Circuit Court of the Second 
Judicial Circuit, in and for Leon County, Florida, entered 
in the above-entitled causes on October 27, 1960, rehear­
ings in which were denied by said Court on November 
4, 1960.

CITATION TO OPINION BELOW

The opinions of the Circuit Court and the orders 
denying the petitions for rehearing are not reported. 
Copies of same are, however, included in the Appendix 
hereto (App. A and App. D).

JURISDICTION

The judgments of the Circuit Court were entered on 
October 27, 1960. Timely petitions for rehearing were 
filed on November 2, 1960, and were denied on November 
4, 1960.

The jurisdiction of this Court is invoked under 28 
U.S.C. §1257 (3) for the reason that the validity of State 
statutes, as applied, is drawn in question on the ground 
of their being repugnant to the Constitution of the United 
States, and because rights, privileges and immunities are 
specially set up and claimed under the Constitution of the 
United States.

This petition requests that the writ be addressed to 
the Circuit Court for Leon County and not to the Supreme 
Court of Florida for the reason that these are criminal 
cases arising in a Florida municipal court, that the judg­
ments of the Circuit Court are appellate judgments, and



3

that Article V, Section 6(3), of the Constitution of the 
State of Florida provides that such Circuit Courts “shall 
have final appellate jurisdiction . . .  of all cases arising 
in municipal courts” .

In addition, this single petition is filed herein for re­
view of both of the above-styled cases pursuant to this 
Court’s Rule 23 (5), as these cases involve identical or 
closely related questions.

QUESTIONS PRESENTED

Where Negroes or persons acting in association with 
Negroes, whose conduct is peaceful at all times, seat them­
selves in a privately-owned restaurant and request the 
service of food; where their request is denied and denied 
because they are Negroes or in association with Negroes; 
where they remain so seated and continue to make such 
request; and where, without any demand being made by 
the restaurateur, municipal police arrest them and a mu­
nicipal court convicts them for such conduct on the al­
leged grounds that it constituted a breach of the peace, 
disorderly conduct and unlawful assembly; did such ar­
rests and convictions constitute unlawful interference 
with their freedom of speech and liberty of contract in 
violation of the federal constitutional guarantees of due 
process of law and equal protection of the laws, and a 
violation of their privileges and immunities of federal 
citizenship ?

CONSTITUTIONAL PROVISIONS INVOLVED

Involved herein are (1) that part of the Fourteenth 
Amendment to the Federal Constitution which provides



4

that: “No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of 
the United States; nor shall any State deprive any person 
of life, liberty, or property, without due process of law; 
nor deny to any person within its jurisdiction the equal 
protection of the laws” ; and (2) that part of Article IV, 
Section 2, of the Federal Constitution which provides that: 
“The Citizens of each State shall be entitled to all Privi­
leges and Immunities of Citizens in the several States.”

STATEMENT

The above-styled cases will be referred to herein re­
spectively, and for convenience, as Steele and Armstrong.

Petitioners in both cases were convicted by the Mu­
nicipal Court in and for the City of Tallahassee, Florida, 
for alleged violations of certain sections of the Tallahassee 
City Code proscribing acts of disorderly conduct, breaches 
of the peace, and unlawful assembly, namely, Section 23- 
14 and Section 23-28 (the latter section incorporating by 
reference misdemeanors under State law, pursuant to 
which the Court below invoked Florida Statutes §§ 870.02 
and 870.04). These ordinances and statutes are set forth 
in full in the Appendix hereto. (App. B) Pursuant to the 
foregoing, the City charged Petitioners in each case with 
the following counts:

Count Two: “And that they did disturb the 
public peace by engaging in, promoting and en­
couraging disorderly proceedings in a private 
building, towit, 120-126 North Monroe Street, 
Tallahassee, Florida, said disorderly proceedings 
then and there tending to disturb those persons



5

being in the vicinity of said private building, 
contrary to the laws and ordinances of said city 
in such cases made and provided, and against 
the peace and dignity of the said City of Talla­
hassee, Florida.” (Steele Tr. 139).

Count Eight: That they “did then and there
engage in unlawful assembly in that they did, 
and they being more than three persons, meet 
together, in the City of Tallahassee, Florida, to 
commit a breach of the peace, acting together 
and concertedly to prevent and disturb SAMUEL 
T. DAVIDSON, Manager of F. W. WOOL- 
WORTH CO., located at 120-126 North Monroe 
Street in said City, in pursuing and following 
his daily labor and the enjoyment of his right 
to refuse service to any persons who are ob­
jectionable or undesirable to said manager, by 
occupying certain seats or stools at the lunch 
counter, a public food establishment of the said 
F. W. WOOLWORTH CO., and upon being re­
fused lunch counter service and said lunch 
counter being then and there closed by the man­
ager to those assembled, continued to occupy 
said seats or stools in person and with wearing 
apparel, books, magazines, and other parapher­
nalia to the exclusion of all other persons, and 
in such nature as to inspire well grounded fear 
in persons of reasonable courage, of riot, or other 
breaches of public peace, and while being so un­
lawfully assembled the Mayor of said City did 
go among those persons so unlawfully assembled 
and, upon making himself known to them and 
each of them, did, in the name of the State and



6

City, command those so unlawfully assembled to 
immediately and peaceably disperse, and they 
did then and there refuse or neglect to obey such 
command, contrary to the laws and ordinances of 
the said City in such cases made and provided, 
and against the peace and dignity of said City 
of Tallahassee, Florida.” (Steele, Tr. 135).

Other counts were also filed against Petitioners, but were 
dismissed.

In Steele the Municipal Court found Petitioners 
guilty as charged in both of said counts. As to Count Two, 
these Petitioners were ordered to pay fines of $300.00 
each or serve sixty (60) days in jail. As to Count Eight, 
the Court sentenced these Petitioners to the city jail for 
a period of thirty (30) days, but suspended the sentences. 
All the Petitioners in Steele are Negro students.

Petitioners in Armstrong constitute four of twelve 
defendants arrested and charged pursuant to the foregoing 
counts. The Municipal Court found these Petitioners 
guilty as charged in Count Two and ordered them to pay 
fines of $300.00 each or serve sixty (60) days in the city 
jail. The Court found all of these Petitioners, except Pe­
titioner Lawler, guilty of Count Eight and sentenced them 
to the city jail for a period of thirty (30) days, but sus­
pended the sentences. The Court found Petitioner Lawler 
not guilty of Count Eight. Six of the other defendants, 
who are not Petitioners herein, were also found guilty of 
Counts Two and Eight and were similarly sentenced. Two 
other defendants, also not Petitioners herein, were found 
guilty of Count Two and not guilty of Count Eight. A 
twelfth defendant was adjudicated neither guilty nor in-



7

nocent, pursuant to Florida Statutes, § 948.01. All the 
Petitioners in Armstrong are white students; the seven 
other convicted defendants therein comprise one white and 
six Negro students. One defendant, Stephen R. Poe, an 
appellant below, paid his fine, and is therefore not one of 
the Petitioners herein.

The facts in Steele are as follows: On February 20, 
1960, Petitioners entered the F. W. Woolworth Five & Ten 
Cent Store in Tallahassee, Florida, seated themselves at 
the lunch counter located in that store, and asked the at­
tendant at the counter to serve them. The attendant re­
fused them service and asked that they all leave. Peti­
tioners declined to leave, and thereupon the attendant 
closed the counter. Subsequently, the Mayor of Talla­
hassee, together with police officers, arrived at the store. 
The Mayor ordered Petitioners to leave, Petitioners de­
clined, the Mayor thereupon ordered the police to arrest 
them, and they were thereupon arrested. During this in­
cident, Petitioners were at no time noisy, violent, or 
boisterous, nor did they use abusive or profane language, 
nor did they resist the arrest.

The manager of Woolworth’s, Mr. S. T. Davidson, 
testified that when Petitioners sat at the fountain and 
asked to be served, he called the police department and 
“ informed them that there were some colored people sit­
ting at our fountain.” (Steele Tr. 15). Mr. Davidson made 
it clear, however, that he “didn’t call them (the police) to 
come” , but simply “ informed them of the fact that they 
(Petitioners) were there.” (Steele Tr. 15). However, 
when the police arrived, Davidson did not complain about 
any persons starting any disorder, did not complain about 
the Petitioners, did not ask to have them arrested, and



8

did not swear out a warrant for their arrest. (Steele Tr. 
37). Davidson had also received instructions from Wool- 
worth’s district office in Atlanta that in the event Negroes 
sat down at the lunch counter, he was not to serve them 
and, “ if necessary to prevent any unpleasantness” , he was 
to close the unit. (Steele Tr. 24) However, he had no in­
structions to notify the police. (Steele Tr. 24, 39).

As for the conduct of other persons in the vicinity, the 
Circuit Count found that Petitioners’ conduct “ aroused 
interest and curiosity among customers in the store and 
provoked anger and resentment in some unidentified per­
sons against the defendants. The police station received 
one call demanding action to remove the defendants. The 
Mayor expressed some apprehension that there might be 
efforts on the part of some to react violently to the dem­
onstration of the defendants.”  (App. 6). However, there 
were no overt acts of violence.

The facts in Armstrong are as follows: On the morn­
ing of March 12, 1960, the Petitioners were seated at the 
lunch counter located in the F. W. Woolworth store, above. 
Also seated at the lunch counter were six Negro students 
from Florida A. & M. University, all of whom were de­
fendants in the trial below. The Negro defendants re­
quested service at the lunch counter, but the attendant re­
fused them service. Petitioners, who are white students, 
had requested service and were served, and while they 
were eating or completing the eating of their breakfast, 
the Mayor summarily ordered them and the other defend­
ants to leave, Petitioners declined, the Mayor immediately 
ordered the police to arrest them, and they were thereupon 
arrested. As in Steele, Petitioners were not noisy, violent, 
or boisterous, nor did they use abusive or profane lan-



9

guage, nor did they resist arrest, and the bystanders’ con­
duct here was essentially the same as in Steele. Further, 
in Armstrong all the Petitioners were served food, and 
neither the attendant nor the manager asked them to leave. 
Moreover, Woolworth’s manager did not call the police at 
any time; indeed, he admitted that he was quite surprised 
when the police came, and testified that he had assumed 
Petitioners would leave of their own accord (Armstrong 
Tr. 36, 50).

The Woolworth store serves or sells to Negroes in all 
of its departments except at the lunch counter, where they 
maintain a policy of racial discrimination against Ne­
groes, and it is because of this policy that the Negro Pe­
titioners were refused service. (Steele Tr. 15, 24-25, 43-44; 
Armstrong Tr. 24-25, 34, 45-47).

In Armstrong, Petitioner Poland also testified that 
while at the counter one of the Negro defendants, George 
Carter, was seated next to him, that he gave Carter his cup 
of coffee, and that the waitress at the counter took it away 
from him. Poland added:

“Well, after all I was sitting in a segregated 
white lunch counter and I knew it and when 
George came in, since George is a Negro, I real­
ized that he was desirous of being served there 
in a place where Negroes are not customarily 
served and I sympathized with this so I gave 
him my coffee as a token of sympathy.” (Arm­
strong Tr. 183).

Petitioner Poland further testified as follows:



10

“ Q In your plan to go into the Woolworth store 
and request service, did you have any plan for im­
plementing your request in any way?

“A Well, no, just an appeal to the management 
to serve us. We hoped that eventually he would 
decide that . . . .  I mean agree with us that it was 
wrong, morally wrong to continue the sort of 
racial discrimination that his company prac­
tices.” (Armstrong Tr. 189-190)

Petitioner Armstrong also testified to the same effect:

“ I went there a guest to eat breakfast. I also went 
there a guest to protest the immoral policy of 
Woolworth’s.” (Armstrong Tr. 213-214)

Petitioner Armstrong added that it was his intention to 
urge the change of Woolworth’s discriminatory policy by 
“ sitting as a white person at a white segregated lunch 
counter and offering to support persons of the Negro race 
who came in and sought to be served and was refused” 
and that it was his intention to persuade the manager to 
change his policy. (Armstrong Tr. 215-216)

How Federal question is presented. In Steele, Pe­
titioners first raised the Federal question in their Motion 
to Quash and Dismiss, where they contended that they were 
being deprived of equal protection of the laws and due 
process of the law under the Constitution of the United 
States. (App. C) These same grounds were again set up 
in oral argument on the Motion to Quash and Dismiss just 
prior to trial. (App. 26; Steele Tr. 5). The issues of due 
process and equal protection were again raised in the As-



11

signments of Error on appeal from the judgments of the 
Municipal Court. (App. C)

In Armstrong, Petitioners orally moved the Court to 
quash the charges at the commencement of the trial and 
repeated to the Court the same objections previously 
raised in the Steele case. (Armstrong Tr. 7). The consti­
tutional objections were reiterated in the Assignments of 
Error on appeal. (App. C)

REASONS FOR GRANTING THE WRIT

1. Petitioners submit that the judgments below are 
in conflict with this Court’s ruling in Shelley v. Kraemer, 
334 U.S. 1; 68 S.Ct. 836; 92 L.Ed. 1161 (1948). In Shel­
ley, a party to a racial restrictive covenant sought to en­
join the sale by one owner in a subdivision to a Negro 
purchaser. In refusing injunctive relief, this Court con­
cluded that no arm of a State Government, whether it be 
the judicial, executive, or legislative branch, may exer­
cise its coercive powers to effectuate racial discrimination 
at the behest of a private party. In Shelley, this Court 
refused to allow a state government to enforce or protect 
a private property right, to-wit, a racial restrictive cove­
nant, where such action would have resulted in govern­
mental effectuation of private racial discrimination.

In the case at bar, the Circuit Court for Leon County 
has purportedly justified its decision on the ground that 
it is protecting Woolworth’s private property rights from 
an alleged trespass. However, there would have been no 
trespass had Woolworth’s served the Petitioners as they 
would have served any other person or party of persons 
without regard to race or color. Hence, Petitioners sub-



12

mit that the property interest of Woolworth’s in these 
circumstances is not entitled to the protection of the tres­
pass laws, in whatever shape they may be devised, where 
the enforcement of such laws results in racial discrimina­
tion. Petitioners submit that Woolworth’s property in­
terests in question are no more entitled to judicial pro­
tection than were the restrictive covenants in Shelley v. 
Kraemer.

Moreover, Petitioners submit that their cases are even 
stronger than that of the petitioners in Shelley, for here 
Woolworth’s did not even request the police to arrest Pe­
titioners or evict them. Such demands and importunities 
came, initially, from third persons, including the Mayor, 
who ordered the police to arrest the Petitioners. But 
for the demands of these third persons, who had no pro­
prietary or other legally protected interest in Woolworth’s, 
and this action of the Mayor and the police as officious in­
termeddlers, Petitioners would have continued to sit at the 
counter without any further interference from Wool­
worth’s. Thus, if, as Shelley holds, an arm of the State 
may not, at the bidding of an owner of private property, 
enforce private racial discrimination, then a fortiori an 
arm of the State may not gratuitously and with no request 
by the private owner, enforce that owner’s discriminatory 
racial practice. Petitioners therefore submit that the case 
at bar should be controlled by the logic of Shelley v. 
Kraemer.

2. Petitioners submit that the judgments below are 
in direct conflict with the decision of the Court of Appeals 
for the Third Circuit in Valle v. Stengle, 176 F. 2d 697 
(1949). Plaintiffs there brought suit under the Civil 
Rights Act alleging a denial of rights guaranteed under



13

the Fourteenth Amendment. Their complaint alleged that 
they were both Negroes and whites; that the defendants 
were the corporate owner of Palisades Amusement Park 
in New Jersey, the individual managers of the park and 
the local Chief of Police; that the park was privately and 
not publicly owned; that the park admitted members of 
the public upon payment of fees; that the park contained 
a pool and that persons admitted to the park were ad­
mitted to the pool upon the payment of an additional fee; 
that plaintiffs were admitted to the park and were in 
possession of duly purchased tickets; that plaintiffs were 
refused admission to the pool on the ground that their 
party contained Negroes; that the Chief of Police aided 
and abetted the managers and the corporate owner in re­
fusing plaintiffs’ admission to the pool and aided and 
abetted the ejectment of plaintiffs from the park.

The District Court granted defendants’ Motion to 
Dismiss the complaint, but was reversed on appeal. The 
Court of Appeals stated that the arrests were presumably 
pursuant to a state statute relating to minor breaches of 
the peace. 178 F. 2d 697, 701. The Court then stated that:

“ . . . the plaintiffs were denied the equal protec­
tion of the laws within the purview of the Four­
teenth Amendment because they were Negroes 
or acting in association with Negroes when they 
attempted to gain admission to the pool at Pali­
sades Park. They, or some of them, were ejected 
from the park, were assaulted and were im­
prisoned falsely, as alleged in the complaint, be­
cause they were Negroes or in association with 
Negroes, and were denied the right to make or



14

enforce contracts, all within the purview of and 
prohibited by R.S. 1977.” 176 F. 2d 697, 702.

R.S. 1977 (42 U.S.C.A., § 1981) provides that:

“All persons within the jurisdiction of the United 
States shall have the same right in every State 
and Territory to make and enforce contracts . . . 
and to the full and equal benefit of all laws and 
proceedings for the security of persons and prop­
erty as is enjoyed by white citizens” .

The Court also held that there was a deprivation of the
plaintiff’s privileges and immunities, and stated that:

“ If a man cannot make or enforce a contract 
already made because of the interference of a 
State officer he is being denied a civil right . . . 
the liberty involved is in fact the liberty of con­
tract . . .  to refuse to an individual the liberty 
of contract is to put him beyond the pale of capi­
talism. Thus ostracized, he cannot engage in the 
acquisition of property or in the pursuit of happi­
ness. It is clear that the Supreme Court has held 
that the words ‘privileges and immunities’ of 
Article IV, Section 2, protect the right of a citi­
zen to engage in lawful commerce, trade or busi­
ness without molestation or harassment . . . The 
field of human rights covered by the privileges 
and immunities clause is indeed a broad one. The 
individual defendants, acting in concert, if the 
allegations of the complaint are to be believed, 
have denied to the plaintiffs the privileges and 
immunities of citizenship.” 176 F.2d 697, 703.



15

The Court added that:

“ the phrase ‘to make contracts’ of R.S. Section 
1977 clearly shows that Congress had in mind 
much more than enforcing a contract, already 
made, by a legal proceeding.” 176 F.2d 697, 703.

The parallel to the cases at bar is clear, for here Pe­
titioners were denied the right or opportunity to peaceably 
negotiate with Woolworth’s and to persuade Woolworth’s 
to contract with them or to engage in commerce with them. 
Because of Petitioners’ race, in Steele, the police and the 
state courts denied them the opportunity to persuade Wool­
worth’s to serve them food. Because of their association 
with Negroes, the white Petitioners in Armstrong were 
prevented from requesting such service for their Negro 
companions. The court in Valle held that the right to so 
solicit contracts may not be violated by state action where 
such action is prompted by the fact the soliciting parties 
are Negroes or persons acting in association with Negroes. 
Petitioners submit that the principles announced in Valle 
are directly in point with the cases at bar, and that the 
judgments of the Circuit Court below, are, therefore, in 
direct conflict with the judgment of the Court of Appeals 
in Valle.

3. Petitioners submit that not only their oral request 
for service, but also their symbolic request for service mani­
fested by their silently remaining seated at the lunch 
counter, constituted the expression and communication of 
an idea. Consequently, Petitioners submit that since peace­
ful, symbolic, non-verbal communication is protected when 
it takes the form of peaceful picketing, their conduct in



16

the instant cases is likewise entitled to the same protection 
as that of picketers in a labor dispute. Petitioners submit 
that the instant cases are controlled by this Court’s de­
cision in Thornhill v. Alabama, 310 U.S. 88; 84 L.Ed. 1093; 
60 S.Ct. 736 (1940), and that the judgments below are in 
conflict with the principles of that case.

Moreover, Petitioners submit that any apprehensions 
that there would be disorder or overt violence on the part 
of the bystanders at the restaurant would constitute no 
predicate whatsoever for the convictions in these cases. 
In protecting the right of Jehovah’s Witnesses to assemble 
despite the opposition of certain local elements, the Court 
of Appeals for the Eighth Circuit held in Sellers v. John­
son, 163 F.2d 877 (1947) that:

“ Certainly the fundamental rights to assemble, 
to speak, and to worship cannot be abridged 
merely because persons threaten to stage a riot 
or because peace officers believe or are afraid 
that breaches of the peace will occur if the rights 
are exercised.” 163 F.2d 877, 881.

Petitioners submit, therefore, that the judgments below 
are also in conflict with the principle thus announced in 
the Sellers case.

4. Petitioners submit that the judgments below are 
in conflict with the principle announced by this Court in 
Marsh v. Alabama, 326 U.S. 501; 90 L.Ed. 265; 66 S.Ct. 
276 (1946). In Marsh, a member of Jehovah’s Witnesses 
had distributed religious literature on the sidewalks of a 
so-called company-owned town, and had been arrested and 
convicted for violating a state statute prohibiting one from



17

entering or remaining on the premises of another after 
having been warned not to do so. This Court reversed the 
conviction as being a violation of freedom of the press and 
freedom of religion, and notwithstanding the fact that the 
acts proscribed by State law took place on privately-owned 
property. This Court stated that:

“ In our view the circumstance that the property 
rights to the premises where the deprivation of 
liberty, here involved, took place, were held by 
others than the public, is not sufficient to justify 
the State’s permitting a corporation to govern a 
community of citizens so as to restrict their fun­
damental liberties and the enforcement of such 
restraint by the application of a State statute.”
326 U.S. 501, 509; 90 L.Ed. 265, 270.

Likewise in the cases at bar, Petitioners submit that 
the respondent City cannot justify the deprivation of 
their freedom of speech and the enforcement of a policy 
of racial discrimination solely because the Petitioners’ 
conduct, presence and acts occurred on private premises. 
In Marsh this Court stated that:

“When we balance the Constitutional rights of 
owners of property against those of the people 
to enjoy freedom of press and religion, as we 
must here, we remain mindful of the fact that the 
latter occupy a preferred position.” 326 U.S. 501,
539; 90 L.Ed. 265, 270.

Petitioners submit that their rights to freedom of speech 
and freedom from racial discrimination occupy the same



18

“preferred position”  as the rights which this Court pro­
tected in Marsh v. Alabama.

5. The legal, moral, and social issues raised by the 
cases at bar are of nation-wide importance. In recent 
months similar “ sit-in” incidents have occurred, and they 
continue to occur, in communities throughout the South, 
and hundreds of Negroes and their white sympathizers 
have been arrested and convicted as a consequence. The 
legality of these convictions is being tested in numerous 
State courts, and Petitioners therefore submit that an 
authoritative expression of controlling constitutional prin­
ciples is needed from this Honorable Court.

A comprehensive survey of these incidents is set forth 
at length in Pollit, Dime Store Demonstrations: Events 
and Legal Problems of First Sixty Days, 3 Duke Law 
Journal 315 (Summer, 1960).



19

CONCLUSION

For the foregoing reasons, this Petition for Writ 
of Certiorari should be granted.

Respectfully submitted,

TOBIAS SIMON and ALFRED I. HOPKINS 
Counsel for Petitioners 
706 Ainsley Building 
Miami 32, Florida

TOBIAS SIMON

ALFRED I. HOPKINS

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing peti­
tion for a writ of certiorari has, pursuant to Rule 33 (1) 
of the Revised Rules of The Supreme Court of The 
United States, been served by mail upon Edward J. Hill, 
Attorney for Respondent, 216 East Jefferson Street,
Tallahassee, Florida, by air mail this-----------------------day
of__________________________ , 196-----.

ALFRED I. HOPKINS



APPENDIX A — OPINIONS BELOW

IN THE CIRCUIT COURT OF THE SECOND 
JUDICIAL CIRCUIT, IN AND FOR LEON 
COUNTY, FLORIDA. AT LAW.
NO. 9627

HENRY M. STEELE, WILLIAM HAYWOOD 
LARKINS, PATRICIA GLORIA STEPHENS, 
PRISCILLA GWENDOLYN STEPHENS,
ANGELINA NANCE, BARBARA JOAN 
BROXTON, JOHN ANGLISH BROXTON 
and CLEMENT COLLIER CARNEY,

Appellants,

vs.

CITY OF TALLAHASSEE,

Appellee.

APPEAL FROM JUDGMENT 
OF MUNICIPAL COURT 

OF
TALLAHASSEE

The several appellants, eight in number, were among 
a group of eleven defendants who were charged, tried and 
convicted in the Municipal Court of the City of Talla­
hassee on each of two counts. Other counts preferred 
against them were quashed and dismissed by the trial 
court. The two counts numbered 2 and 8 on which the 
defendants were convicted charged that the appellants 
(and the other three defendants who have not appealed) 
did (Count Tw o):



App. 2

“disturb the public peace by engaging in, pro­
moting and encouraging disorderly proceedings 
in a private building, to wit, 120 North Monroe 
Street, Tallahassee, Florida, said disorderly pro­
ceedings then and there tending to disturb 
those persons being in the vicinity of said private 
building . . . ”

and, in Count Eight,

“did then and there engage in unlawful assembly 
in that they did, and they being more than three 
persons, meet together in the City of Tallahassee, 
Florida, to commit a breach of the peace, acting 
together and concertedly to prevent and disturb 
Samuel T. Davidson, Manager of F. W. Wool- 
worth Co., located at 120 North Monroe Street 
in said City in pursuing and following his daily 
labor and the enjoyment of his right to refuse 
service to any persons who are objectionable or 
undesirable to said manager by occupying cer­
tain seats or stools at the lunch counter, a public 
food establishment of the said F. W. Woolworth 
Co., and upon being refused lunch counter serv­
ice and said lunch counter being then and there 
closed by the manager to those assembled, con­
tinued to occupy said seats or stools in person 
and with wearing apparel, books, magazines, and 
other paraphernalia, to the exclusion of all other 
persons of reasonable courage, of riot, or other 
breaches of public peace, and while being so un­
lawfully assembled, the Mayor of said City did 
go among those persons so unlawfully assembled 
and, upon making himself known to them and

i



App. 3

each of them, did, in the name of the State and 
City, command those so unlawfully assembled to 
immediately and peaceably disperse, and they did 
then and there refuse or neglect to obey such 
command, . . . ”

Judgments of conviction and sentences were duly 
rendered and appeals therefrom have lodged the cause 
in this Court. Fla. Const. Art. V, Sec. 6(3).

The appellants contend that the evidence adduced at 
the trial is insufficient to support a conviction of the 
appellants on any offense charged. They also assert that 
their arrest and conviction constitute racial discrimina­
tion violative of the constitutional guarantees of equal 
protection of the laws, due process of law, and the privi­
leges and immunities of citizenship.

The evidence adduced in the trial court is not in ma­
terial conflict. The appellants (and their other codefend­
ants in the court below) are Negroes. The F. W. Wool- 
worth & Co. store in Tallahassee, Florida is located at 
120 North Monroe Street in that City. This business is 
a traditional “dime” store but it also operates a lunch 
counter. The policy of this store was, on the date in 
question, to serve only white patrons at the lunch counter. 
On Saturday, February 20, 1960, the eleven persons, who 
were the defendants in the trial court, entered the Wool- 
worth store at about 2 :30 P. M. and together went to the 
lunch counter and each took a seat at one of the stools 
there. The waitress on duty at the counter informed the 
defendants that they would not be served and requested 
that they leave the counter. They did not leave whereupon 
the food service was discontinued and signs were displayed



App. 4

on the counter that it was closed. The defendants re­
mained seated at the counter, placed their wraps on other 
vacant seats, spread books and magazines on the counter, 
and read magazines or indulged in similar occupation. 
None of them engaged in any noisy or boisterous conduct 
or made any threats of violence, nor were they armed or 
did they use any abusive language.

There were a number of other persons in the store 
and the actions of the defendants attracted their atten­
tion. The manager of the store was apparently notified 
of the presence of the defendants by the waitress. The 
manager called the local police station and notified the 
officer on duty that there were a number of colored 
people seated at the lunch counter of the store. He did 
not specifically request police action.

After some hour or hour and a half during which the 
defendants remained seated at the counter, with counter 
service closed and with signs so placed as to indicate that 
the counter was closed, the Mayor of the City of Talla­
hassee accompanied by a captain of police entered the 
store. He met the manager and was told by him that the 
food service counter had been closed, that the defendants 
had been refused service and that the presence of the de­
fendants had caused him to have the counter closed. He 
also told the Mayor that he intended to keep the counter 
closed and would reopen it if  the defendants would leave 
provided it was not then too near the regular closing hour 
to make it impractical to open it.

The Mayor then stood before the counter, counted 
the number of people seated there, and then approached 
the group. He asked a boy and girl among them if there



App. 5

was a spokesman for the group. The defendant Priscilla 
Stephens stated that she was spokesman. The Mayor 
asked if she realized that the food counter was closed and 
that they had been refused service. No answer was defi­
nitely given. The Mayor pointed to the sign immediately 
to her right facing the counter and asked if she had seen 
that sign which stated that the counter was closed. She 
said that it must have “just been placed there” . The 
Mayor replied that it had been there for some time.

He then moved toward the end of the counter and 
spoke to three or four of the other defendants, asking 
them if they realized that the food service was closed. 
They replied that all questions would have to be directed 
to their spokesman. The mayor pointed out the closed 
sign and again was referred to their spokesman. He then 
moved back to the spokesman, the defendant Priscilla 
Stephens, and identified himself as Mayor of the City of 
Tallahassee and that as such Mayor by authority vested 
in him by the citizens of Tallahassee and on behalf of the 
State of Florida he asked the defendants to disperse im­
mediately and peacefully. She replied that they “didn’t 
want to cause any trouble” . Immediately following this, 
the spokesman and the other defendants made motions as 
if to comply with the Mayor’s demand. The Mayor walked 
toward the rear of the store away from the defendants. 
The defendants then went into a huddle after which they 
all sat down again in the same seats and put their articles 
back where they had been. The Mayor, on observing this, 
returned to the spokesman and was told that defendants 
had decided to stay. The Mayor stated “ I am to assume 
you are refusing my request?” There was no answer or 
movement. He repeated his demand (word for word as 
it had been previously given) that they disperse imme-



App. 6

diately and peacefully. After standing a short time await­
ing a response and then observing no indication of com­
pliance with the demand, the Mayor directed the captain 
of police to arrest and take into custody all persons seated 
at the counter. The defendants were then arrested and 
taken into custody.

There is evidence in the record that this exhibition 
by the defendants aroused interest and curiosity among 
customers in the store and provoked anger and resent­
ment in some unidentified persons against the defendants. 
The police station received one call demanding action to 
remove the defendants. The Mayor expressed some ap­
prehension that there might be efforts on the part of 
some to react violently to the demonstration of the de­
fendants.

Though the defendants at no time displayed or 
threatened physical violence, abusive language, noise or 
other boisterous action, they were obviously organized 
and determined to proceed to the food counter, take 
seats there and to remain until they were either served 
or forcibly removed.

Neither the trial court nor this court is authorized 
to judge the wisdom or ethics of the policy of the Wool- 
worth store in declining to serve food at its food counter 
to persons who are in the racial classification of the de­
fendants. Its legality only may be considered. That such 
a policy is lawful is clearly set forth in F. S. 501.092, which 
provides in part:

“ . . . public food service establishments are de­
clared to be private enterprises and the owner or



App. 7

manager of [such]—establishments shall have 
the right to refuse accommodations or service to 
any person who is objectionable or undesirable 
to said owner or manager” . (Emphasis supplied)

The refusal to serve the defendants for any reason 
or without a reason is a prerogative of the owner or man­
ager of a public food service establishment.

The defendants could possibly have been justified in 
assuming that they were invitees to all portions of the 
store and to all its customer facilities when they ap­
proached and entered the store. This would be so if they 
did not in fact know of the policy of not serving Negroes 
at the food counter. However, when the waitress informed 
them that they would not be served and asked them to 
leave they were clearly advised of the policy. This was 
emphasized when the counter was closed. When the de­
fendants refused to leave the seats when requested by the 
employee and agent of the owner and of the management 
they each became a trespasser. This is so regardless of the 
fact that the policy may be regarded by the defendants and 
their sympathizers as unfairly discriminatory to their race. 
By persisting in occupying the seats and placing their per­
sonal effects in vacant seats and on the counter they denied 
to the owner his right of possession and use of privately 
owned property.

Their concerted action and refusal to leave when 
properly requested implied to all, including the owner, a 
design and purpose to require a change of policy by the 
management as the price of termination of the trespass, 
and that failing in achievement of such change they would



App. 8

stubbornly persist in a continuing trespass until physically 
evicted.

The management of the store was thus confronted 
with the circumstance of either capitulating to the demands 
made by the defendants, suffer the continued loss of pos­
session of part of the facilities of the store, or bodily re­
move the defendants. Being unwilling to capitulate (as 
was the right of the management) the obstinate and con­
tinued trespass was provoking increasing attention and 
potential emotional reaction from other members of the 
public. Physical bodily removal of thirteen fully matured 
youths of both sexes would necessarily create a spectacle 
in the store which could and probably would result in 
damage to the store and possible personal injury to the 
removers and the removed.

The appellants contend in effect that the manage­
ment of the store had no choice but to serve them food or 
suffer their persistent unwelcome presence. They say that 
the city and state may not correct this wrong by arrest of 
the wrongdoers, or after a fair trial, punish them for their 
conduct.

Section 23-1 i  of the Tallahassee Code provides, in 
parts pertinent to this case, that:

“ No person shall disturb a public place by engag­
ing in or promoting or encouraging, aiding or 
abetting any . . . noisy and disorderly proceedings 
in any . . . place of general resort . . .  or in any 
private building when such noisy or disorderly 
proceedings therein committed shall tend to dis­
turb any person residing or being in the vicinity 
of such private house or building.”



App. 9

The ordinance denounces public disturbances occa­
sioned from fights, riots, or noisy and disorderly proceed­
ings in public places such as streets, squares or other places 
of general resort. It also condemns disturbances such as 
a fight, riot, “ or other noisy or disorderly proceedings” in 
a private building when such conduct “ shall tend to disturb 
any person—being in the vicinity of such—building.” 
With regard to private property disorders the ordinance 
undertakes to define them as conduct which “ shall tend 
to disturb” persons in or close to the private building. The 
language used with regard to the private property miscon­
duct must be interpreted to mean such acts as would be 
regarded by ordinary sane, courageous and reasonably 
tolerant persons of the community as disorderly and, in 
addition, would be regarded by such persons as disturbing 
and offensive to them when performed in their presence.

Count Two of the charge against the defendants 
charges that defendants “did disturb the public peace” by 
engaging in, promoting and encouraging “ disorderly pro­
ceedings” at a described private building “ tending to dis­
turb those persons being in the vicinity of said private 
building” .

Does the evidence sustain a finding by the trial court 
that the appellants:

(1) Did disturb the public peace;

(2) Engaged in, promoted and encouraged dis­
orderly proceedings; and that such did

(3) Have a tendency to disturb those persons 
who were then in the vicinity of said private 
building?



App. 10

The charge in this count is obviously framed to allege a 
violation of Section 23-14 of the city code. The charge and 
the ordinance seek to deal with conduct similar to that em­
braced within the common law offenses of “breach of the 
peace” and “ disorderly conduct” . These two common law 
offenses seem to be similar to each other, though the latter 
is probably of broader scope and would embrace any un­
lawful act denounced by ordinance or statute. The former, 
breach of peace, is somewhat more restricted and reaches 
only conduct which disturbs or tends to disturb the tran­
quility of the community. This would obviously include 
fighting, damaging of property, threatening injury by 
display of firearms, loud and boisterous language, menac­
ing gestures in an angry manner, excessive noise, and other 
conduct which would put others in terror for their safety 
or would be destructive to their reasonable comfort. How­
ever, such clear rashness is not the extent of the scope of 
the offense. An act of violence or an act likely to produce 
violence is within its orbit, but also embraced are acts 
which, by causing consternation and alarm, disturb the 
peace and quiet of the community. Cases cited 5 Words 
and Phrases p. 767 under topic “Violence” . Blackstone is 
cited as saying that, beside the actual breach of the peace, 
anything that tends to provoke or excite others to break 
it is an offense of the same denomination. The court in 
State v. White (Rhode Island) 28 A. 968, thus held that 
where parties attempted to go through a gate which blocked 
a public way and was a nuisance they were guilty of a 
breach of peace in provoking a fight while so doing. See 
also Plattsburg v. Smarr (Mo.) 216 S.W. 538; Halter v. 
State (Nebr.) 105 N. W. 298, 7 L R A (N. S.) 1079, Am. 
St. Rep. 754; 5 Words & Phrases pp 763 et seq. Included 
are also acts which tend to excite violent resentment. Delk 
v. Commonwealth (Ky.) 178 S.W. 1129.



App. 11

The term “ peace” used in this connection is said to 
mean the tranquility enjoyed by the citizens of a munici­
pality or community where good order reigns among its 
members. This is the natural right of all persons in po­
litical societies and any violation of that right is a breach 
of the peace. Davis v. Burgess (Mich.) 20 N. W. 540, 52 
Am. St. Rep. 828.

“ Disorderly conduct” has been similarly defined. It 
has been held to be conduct of such a nature as will affect 
peace and quiet of persons who may witness it and who may 
be disturbed or driven to resentment by it. State v. Miller, 
(Minn.) 91 N.W. 2d 138, 141; State v. Reynolds (Minn.) 
66 N.W. 2d 886, 889. It has been said that disorderly 
conduct must involve an actual or threatened breach of 
peace which means a disturbance of the tranquility of the 
people, and that it must be such conduct as reasonably 
tends to a breach of the peace or at least such that a breach 
of the peace has become imminent or might reasonably be 
expected or intended to flow from the conduct. People ex 
rel Hersh v. Rothberg, 167 N.Y.S. 2d 813, 814, 8 Misc. 2d 
259.

Testing the conduct of the appellants against these 
expressions of the elements of the common law offenses 
above discussed and the words charged in Count Two, it 
seems clear that such conduct came within the condemna­
tion of the ordinance and within the offense charged in the 
count. Though there was no violence actually displayed or 
patently threatened or noisy tumult made or exhibited, 
yet the willful, obstinate and persistent refusal to vacate 
after a representative of the owner and management had 
requested it was an ominous threat to the tranquility of the 
vicinity. Stubborn determination to hold onto the private



App. 12

property of another until some distasteful policy of the 
latter is altered to the transgressor’s liking, would be 
greatly disturbing to the management, other employees of 
the business and all others who may be present.

In State v. Cooper, (Minn.) 285 N. W. 903,, 122 
A.L.R. 727 it was held that defendant’s conduct in carrying 
a large banner, some 3 feet in length, on each side of 
which was printed the words: “Unfair to Private Chauf­
feurs and Helpers Union, Local 912” immediately in front 
of a private home in an exclusively residential district was 
held sufficient to sustain a conviction of violation of an 
ordinance forbidding the making, aiding, countenancing 
or assisting in making any disturbance or improper diver­
sion. The defendant had claimed the benefit of certain 
labor laws which permitted peaceful picketing in industrial 
disputes. The Court held the statutes did not affect a con­
troversy involving domestic service. In sustaining the con­
viction the Court said:

“ Defendant’s conduct was likely to arouse anger, dis­
turbance or violence. That there was no outburst of vio­
lence was not due to his behavior but to the fortunate 
circumstance that he was arrested and taken away before 
any trouble broke. The defendant’s presence at the Mc­
Millan home carrying this banner was likely to provoke 
trouble and breach of peace . . . .”

The appellants’ conduct was such that the trial court 
might find that it was likely that trouble would have been 
provoked.

The evidence sustains the findings and judgment of 
the trial court on Count Two.



App. 13

It is to Count Eight that appellants make their 
greatest challenge. This charge is similar to the common 
law offense of “ unlawful assembly” . However, there are 
ordinances which deal specifically with the subject. By 
Section 23-28, Tallahassee Code, it is provided that it shall 
be unlawful for any person to commit within the city 
limits any act which is or shall be recognized by the laws 
of the State as a misdemeanor and the commission of such 
acts is forbidden. F. S. 870.02 denounces the meeting to­
gether of three or more persons “ to commit a breach of 
peace, or to do any other unlawful act.”  F. S. 870.04 pro­
vides, in pertinent parts, as follows:

“ If any number of persons, whether armed or not, 
are unlawfully . . . assembled in any city . . . the 
mayor . . .  of said city, shall go among the persons 
so assembled . .. and shall in the name of the state 
command all the persons so assembled immedi­
ately and peaceably to disperse . . . ”

It further provides that if such persons do not disperse 
the officer

“ shall command the assistance of all persons in 
seizing, arresting and securing such persons in 
custody . . .” .

Also included is the provision that any person who refuses 
or neglects to obey the officer’s requirement “to depart 
from the place . . . shall be deemed one of the . . . persons 
unlawfully assembled, and may be prosecuted and pun­
ished accordingly.”

At common law the crime of unlawful assembly is



App. 14

defined as an assembly of three or more persons to com­
mit a crime or to carry out a common purpose, lawful or 
unlawful, in such manner as to give firm and courageous 
persons in the neighborhood of such assembly reasonable 
grounds to apprehend a breach of peace in consequence of 
it. See 91 C.J.S. (unlawful assembly) p. 495.

The offense charged in Count 8 differs from that in 
Count 2 in that the former adds the elements of the as­
sembly of more than three persons (to commit a breach of 
peace) and the failure to peaceably disperse when ordered 
to do so by the mayor of the city.

As has already been noted in the discussion of Count 
2, the appellants were actually engaged in a breach of the 
peace when they refused to vacate the seats they occupied 
when requested to do so by the waitress and the closed 
signs had been displayed. That there were more than 
three persons acting in concert and assembled together 
is not questioned, nor is the evidence lacking or in dispute 
that all of the appellants were so assembled.

The appellants contend that since there was no loud 
or boisterous talk, threatening gestures or acts of violence 
then there was no disorder or breach of the peace and there­
fore their assembly was not unlawful. Much is said about 
the mildness of the concern of the manager of the store in 
that when he notified the police of defendants’ presence 
he made no request for action, did not swear out a war­
rant, and when the police did arrive made no request to 
arrest the defendants. The purpose of emphasizing such 
matters is to demonstrate the absence of any threat or ap­
prehension of violence or tumult. However, it is not neces­
sary for there to be a rout or riot or noise or physical vio-



App. 15

lenee for an assembly to be unlawful. It is enough if it is 
for the purpose of reaching an objective in such a manner 
as to give sane, firm and courageous persons in the neigh­
borhood of such assembly reasonable grounds to apprehend 
a breach of peace in consequence of it.

Willful, obstinate and persistent seizure of possession 
of another’s private property with an adamant refusal to 
yield such seizure when clearly requested to do so by the 
known owner or his representative is conduct which may 
be found by a trial judge to be such as to give normally 
firm and brave persons in the vicinity reasonable grounds 
to believe that a breach of peace would flow from such con­
duct. This would be especially true when, as here, the tres­
passers are fully developed college age youths who are 
clearly crusading for an objective which their trespass is 
designed to facilitate in achieving.

In upholding the sufficiency of the evidence to sustain 
the offenses charged, this Court is not holding or even sug­
gesting that any class, color, creed, race, or other group of 
persons may be condemned as disorderly or unlawfully as­
sembled when they peacefully seek objectives without in­
fringing on the rights of others. However, when persons 
in substantial numbers seek to intrude themselves on pri­
vate property and concertedly take possession of part of 
the facilities owned by another and refuse adamantly to 
desist when proper demands by the owner or his agents 
are made such conduct is presumptious, disorderly, and 
invasive of property rights of others, and provocative of 
resentment which would likely advance to violence. An as­
sembly for such purposes is unlawful and subjects those 
so assembled to punishment by proper authorities after 
trial and conviction.



App. 16

None of the cases cited by appellants which involved 
reversals of convictions for either disorderly conduct or 
unlawful assembly appear to involve alleged misconduct 
on private property, with the exception of People v. Swold, 
73 N.Y.S. 2d 399 (City Court of Utica).

In the case last cited, the City Judge of Utica, N. Y. 
granted a motion to dismiss the information and discharge 
the defendant after trial. The defendant was a taxi driver 
operating independently. At about 8:30 P. M. on April 11, 
1947 he was told by the complainant (who appears to have 
been one of the station police) to stop soliciting passengers 
in the Union Station. Defendant left but returned at about 
1:00 A. M. the following morning. He was again told to 
leave, he refused and was arrested for disorderly conduct. 
The trial court held that the facts did not show disorderly 
conduct. It was said that a refusal to leave private prop­
erty does not in and of itself constitute disorderly conduct, 
and that as there was no breach of the peace or threat of 
such the proof failed to establish the offense charged.

Though the opinion in this case is that of a court which 
is not appellate and but scantily persuasive here, pause will 
be made to note that there is a vast difference in the case 
here and the one there. In the case cited it is not shown 
that the defendant was actually soliciting customers, but 
was merely present. All taxi drivers had been ordered 
to leave and defendant did not immediately obey. He was 
arrested then. There was no showing there of persistent 
defiance of either the officer or the property owner. In 
the case at bar the defendants, by their conduct, made it 
clear that they would leave only when forcibly ejected or 
placed under arrest.



App. 17

It thus appears that the offense set forth in Count 
Eight adequately charged a violation of the city ordinance 
and the evidence sustains the finding of guilt.

Counsel for appellant raises a point that the convic­
tions constitute a deprivation of appellants’ liberty with­
out due process of law because the record is barren of evi­
dence of commission of an offense. They cite the case of
Thompson v. Louisville, ____U. S.__; 28 Law Week 4193;
No. 59 October Term 1959 (1960). To convict one who is 
charged with crime or other offense and who denies guilt, 
without evidence to sustain it, would violate every precept 
of due process, equal protection and preservation of privi­
leges and immunities vouchsafed to every citizen by state 
and federal constitutions and also by the positive statutory 
and common law of this state. If such were the case here 
there would be no need to invoke the United States Consti­
tution. No city ordinance, state statute, court rule, or case 
precedent purports to directly or indirectly sanction such 
a conviction. If the record were barren of evidence to 
sustain the convictions this court would set them aside as 
being contrary to the law of this state. The contention thus 
made is without merit.

The final point raised is whether or not the arrest and 
conviction of appellants constitutes racial discrimination 
in violation of constitutional guarantees under the Four­
teenth Amendment to the U. S. Constitution. The basis 
for the contention that there is violation of constitutional 
rights appears to stem from the fact that the defendants 
are all Negroes, that they were seeking to obtain food 
service from the store which offered and provided that 
service only to white persons, and that the arrests and con­
victions were an interference with the pursuit of their ob-



App. 18

jective of obtaining a change in the policy of the store 
which excluded them from that particular service. They 
contend that the participation of the arresting officers and 
the trial court constituted state action which unconstitu­
tionally discriminated against the Negro appellants, Shelley 
v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 is 
cited in support of this contention. In that case it was 
held that judicial enforcement of a restrictive covenant 
against non-white persons was a denial of equal protection 
of the law.

However, the Court in that case was careful to point 
out that the 14th Amendment “ erects no shield against 
merely private conduct, however discriminatory or wrong­
ful” . It was also held that: “ . . . restrictive covenants 
standing alone cannot be regarded as violative of any 
rights guaranteed —  by the Fourteenth Amendment. So 
long as the purposes of those agreements are effectuated by 
voluntary adherence to their terms, it would appear clear 
that there had been no action by the state . . .” .

The mayor and police officers never undertook to 
make, break or enforce the policy of Woolworth’s store to 
deny service to Negroes at its food counter. They were 
confronted with a concerted action to seize private prop­
erty and hold it until ransomed by a change in the policy. 
Woolworth could serve or not serve any person it chose. 
The fact that it chose not to serve appellants, however 
discriminatory it may be, was not unlawful. Police action 
was to terminate a wrongful trespass amounting to a 
breach of peace.

Valle v. Stengel, 176 F. 2d 697 (3rd Cir. 1949) cited 
by appellants is not in point. In that case the state law



App. 19

applicable prohibited a proprietor of a place of public re­
sort from refusing accommodations or service on account 
of race. The Negro plaintiffs were fully within their rights 
in seeking admission and it was unlawful for the proprietor 
to refuse them. Such is just the opposite in the case at bar.

Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1094, 30 
L. Ed 220 is not in point. There was actual discrimination 
in the application of a regulation in that case. There is no 
showing of such in the case at bar. The appellants were 
arrested only after they had adamantly refused to disperse 
after being twice commanded to do so by the mayor. Under 
like circumstances when a number of persons of any race 
would seize property not belonging to them and persist in 
holding it until the owner accorded them some privilege 
in his power to grant or withhold, it would be expected 
that law enforcement authorities would have acted in a 
manner similar to that followed here. The record fails to 
show that such a procedure had not been or would not be 
invoked had the trespassers been of the white or any other 
race.

Other authorities cited by appellants have been exam­
ined and found not to be in point. Other contentions made 
by appellants have been considered and found to be without 
merit.

The judgments appealed from are hereby 
AFFIRMED.



App. 20

APPEAL FROM JUDGMENT 
OF MUNICIPAL COURT 

OF
TALLAHASSEE

IN THE CIRCUIT COURT OF THE SECOND 
JUDICIAL CIRCUIT, IN AND FOR LEON 
COUNTY, FLORIDA.
NO. 9675

ROBERT K. ARMSTRONG, ROLAND W.
EVES, DEREK SPENCER LAWLER,
STEPHEN R. POE and JOHN J. POLAND,

Appellants,

vs.

CITY OF TALLAHASSEE,
Appellee.

Counsel for the respective parties have waived oral 
argument and counsel for appellants has waived the filing 
of a reply brief to the brief of the appellee. Accordingly, 
this cause is considered on transcript of record, the assign­
ments of error and on the briefs of the parties filed herein.

This case is very similar to the case pending in this 
Court styled Henry M. Steele, et al v. City of Tallahassee 
(Law No. 9627) and in which this Court has today entered 
its judgment and opinion of affirmance of the Municipal 
Court of Tallahassee. The identical legal points are in­
volved. The factual situation in this case differs from that 
in the Steele case primarily in the parties involved and 
the date of the events involved.



App. 21

In the case at bar the appellants are all white persons. 
They, together with other persons including several Ne­
groes, participated in a so-called “ sit-in” demonstration 
at the lunch counter of Woolworth’s store in Tallahassee 
on March 12, 1960. This was exactly two weeks after the 
events at the same place which were involved in the Steele 
case.

Here the appellants were not refused service at the 
food counter because of their race. However, evidence ap­
pears which would sustain a finding by the trial court that 
each of the defendants did actively participate in a scheme 
or plan to encourage, aid and abet the commission of will­
ful, obstinate and persistent trespasses on private property 
so as to create disturbances amounting to a breach of peace.

The evidence in many respects is conflicting, but it is 
the trial court which resolves such conflicts. The record 
reflects the presence of substantial competent evidence to 
sustain the findings and judgments of the trial court with 
reference to each of the appellants.

The nature of the charges made against the appellants 
here were the same as those made in the Steele case. The 
acts of the appellants here differed from those of the de­
fendants in Steele only in the manner in which the white 
participants joined in sympathetic demonstration. If any­
thing, the danger of violence and serious disorder was 
greater in the case at bar than in Steele.

It would not be useful to repeat what was said in the 
Steele case and the principles set forth there are found 
to be pertinent and controlling here. Accordingly, it is 
held that there is ample evidence to sustain the convictions



App. 22

on the charges made, and that the appellants have been 
denied no constitutional rights under the 14th Amendment 
to the U. S. Constitution or other rights.

The judgments of the trial court be and the same are 
hereby

AFFIRMED.



App. 23

APPENDIX B — STATUTES AND ORDINANCES

FLORIDA STATUTES §870.02:

UNLAWFUL ASSEMBLIES:

If three or more persons meet together to commit a 
breach of the peace, or to do any other unlawful act, each 
of them shall be punished by imprisonment not exceeding 
six months, or by fine not exceeding five hundred dollars.

FLORIDA STATUTES §870.04:

MAGISTRATE TO DISPERSE RIOTOUS
ASSEMBLY:

If any number of persons, whether armed or not, are 
unlawfully, riotously or tumultuously assembled in any 
city or town, the sheriff or his deputies, or any constable 
or justice of the peace of the county, or the mayor, or any 
alderman of the said city or town, shall go among the per­
sons so assembled, or as near to them as may be with 
safety, and shall in the name of the state command all the 
persons so assembled immediately and peaceably to dis­
perse ; and if such persons do not thereupon immediately 
and peaceably disperse, said officers shall command the 
assistance of all persons in seizing, arresting and securing 
such persons in custody; and if any person present being 
so commanded to aid and assist in seizing and securing 
such rioter or persons so unlawfully assembled, or in sup­
pressing such riot or unlawful assembly, refuses or neg­
lects to obey such command, or, when required by such 
officers to depart from the place, refuses and neglects to 
do so, he shall be deemed one of the rioters or persons un-



App. 24

lawfully assembled, and may be prosecuted and punished 
accordingly.

TALLAHASSEE CITY CODE, §23-14:

No person shall disturb a public place by engaging 
in or promoting or encouraging, aiding or abetting any 
. . . noisy and disorderly proceedings in any . . . place 
of general resort . . .  or in any private building when 
such noisy or disorderly proceedings therein committed 
shall tend to disturb any person residing or being in the 
vicinity of such private house or building.

TALLAHASSEE CITY CODE, §23-28:

It shall be unlawful for any person to commit within 
the corporate limits of the city any act which is or shall 
be recognized by the laws of the State as a misdemeanor 
and the commission of such acts is hereby forbidden.



App. 25

APPENDIX C — MOTION TO QUASH AND DISMISS 
AND ASSIGNMENTS OF ERROR

MOTION TO QUASH AND DISMISS (Steele Tr. 132;
Caption Omitted)

The defendants, by their undersigned attorneys, move 
this Honorable Court to quash and dismiss the charges 
heretofore filed against them in the within cause, and in 
support thereof state:

1. The charges fail to set forth any charge or of­
fense in violation of the statutes of the State of Florida 
or the ordinances of the City of Tallahassee.

2. Said charges fail to set forth any facts sufficient 
to show a violation of the statutes of the State of Florida 
or the ordinances of the City of Tallahassee.

3. The said charges fail to inform the defendants of 
the nature and cause of the accusations against them suf­
ficiently to enable them to prepare their defense or to plead 
an acquittal or conviction in bar of the second prosecution, 
and to protect them against a subsequent prosecution for 
the same supposed offense.

4. The said charges fail to set forth the ordinances 
and/or statutes which are supposedly being violated by 
the defendants.

5. The provisions of Sections 23-13 and 23-5 of the 
Code of the City of Tallahassee are unconstitutional in that 
they violate the rights of the defendants as guaranteed 
by the Constitution of the United States and the Declara-



App. 26

tion of Rights as contained in the Constitution of the State 
of Florida, in that the defendants are thereby deprived of 
equal protection of the laws, due process of the laws, and 
said ordinances fail to set a standard sufficiently clear and 
concise as to permit the defendants to know in which man­
ner the same are being violated, if at all.

ORAL ARGUMENT ON MOTION TO QUASH AND
DISMISS (Steele Tr. 5)

MR. SIMON: If your Honor please, we would move
to quash the eight counts at this time on the grounds that 
the counts fail to set forth any fact sufficient to show 
violation of the Statutes of the State of Florida or the 
Ordinances of the City of Tallahassee; that the charges 
failed to inform the defendants of the nature and cause 
of the accusations against them sufficiently to enable 
them to raise defense or to plead an acquittal or conviction 
in bar of a subsequent prosecution; that the charges fail 
to mention the specific Ordinances or Statutes which are 
allegedly being violated and that the charges together are 
unconstitutional and that they violate the rights of the 
defendants guaranteed by the Constitution of the United 
States and the Declaration of Rights as contained in the 
Constitution of the State of Florida and that the effect is 
to deprive the defendants of the equal protection of due 
process of the laws; further, that the Ordinances fail to 
set forth a standard which is sufficiently clear and concise 
as to permit the defendants to know in which manner the 
same are being violated.



App. 27

ASSIGNMENTS OF ERROR (Steele; Caption Omitted)

The defendants assign as the errors on which they 
intend to rely in the Supreme Court of Florida for reversal 
of the judgment of the Municipal Court in and for the City 
of Tallahassee, Florida, appealed from, the following:

1. The Court erred in making and entering its judg­
ment against the aforesaid defendants of March 16, 1960, 
as a matter of law.

2. The Court erred in making and entering its judg­
ment against the aforesaid defendants of March 17, 1960, 
as a matter of fact.

3. The Court erred in making and entering its judg­
ment against the aforesaid defendants of March 17, 1960, 
for the reason that the judgment is contrary to law.

4. The Court erred in making and entering its judg­
ment against the aforesaid defendants of March 17, 1960, 
for the reason that the judgment is contrary to the weight 
of the evidence.

5. The Court erred in making and entering its judg­
ment against the aforesaid defendants of March 17, 1960, 
for the reason that the judgment violated the rights guar­
anteed to the defendants by the First and Fourteenth 
Amendments to the Constitution of the United States, and 
by corresponding provisions of the Declaration of Rights 
of the Florida Constitution, and the Florida Constitution, 
in that the defendants have been denied due process of law, 
equal protection of law, and further that the action of the 
Court in imposing judgment upon these defendants, who



App. 28

are Negroes, constitutes an act of discrimination to the 
said defendants, solely by reason of their color, in violation 
of the Constitutions of the United States and of the State 
of Florida, which prohibit State action in support of dis­
crimination solely by reason of color and prohibit denial 
of the equal protection of the law.

ASSIGN M EN TS OF ERROR (Armstrong; Caption
Omitted)

The defendants assign as the errors on which they 
intend to rely in the Circuit Court of the Second Judicial 
Circuit of Florida, in and for the County of Leon, for the 
reversal of the judgment of the Municipal Court in and for 
the City of Tallahassee, Florida, appealed from, the fol­
lowing :

1. The Court erred in making and entering its judg­
ment against the aforesaid defendants of May 7, 1960, 
as a matter of law.

2. The Court erred in making and entering its judg­
ment against the aforesaid defendants of May 7, 1960, 
as a matter of fact.

3. The Court erred in making and entering its judg­
ment against the aforesaid defendants of May 7, 1960, 
for the reason that the judgment is contrary to law.

4. The Court erred in making and entering its judg­
ment against the aforesaid defendants of May 7, 1960, 
for the reason that the judgment is contrary to the weight 
of the evidence.



App. 29

5. The Court erred in making and entering its judg­
ment against the aforesaid defendants of May 7, 1960, 
for the reason that the judgment violates the rights guar­
anteed to the defendants by the First and Fourteenth 
Amendments to the Constitution of the United States, and 
by corresponding provisions of the Declaration of Rights 
of the Florida Constitution, and the Florida Constitution, 
in that the defendants have been denied due process of 
law, equal protection of law, and that there is no evidence 
upon which a conviction may be based.



App. 30

APPENDIX D — ORDERS DENYING REHEARING

O R D E R
(Steele; Caption Omitted)

THIS CAUSE having come on to be heard before me 
upon the Appellants’ Petition for Re-Hearing, and the 
Court being fully advised in the premises, it is, upon con­
sideration,

ORDERED that the Appellants’ Petition for Re- 
Hearing be and the same is hereby denied.

DONE and ORDERED in Chambers at Tallahassee, 
Leon County, Florida, this 4th day of November, 1960.

/ s /  Ben C. Willis
CIRCUIT JUDGE

O R D E R
(Armstrong; Caption Omitted)

THIS CAUSE having come on to be heard before me 
upon the Appellants’ Petition for Re-Hearing, and the 
Court being fully advised in the premises, it is, upon con­
sideration,

ORDERED, that the Appellants’ Petition for Re- 
Hearing be and the same is hereby denied.

DONE and ORDERED in Chambers at Tallahassee, 
Leon County, Florida, this 4th day of November, 1960.

/&/ Ben C. Willis
CIRCUIT JUDGE



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