Avent v. North Carolina Oral Arguments 2

    In The
SUPREME COURT OF THE UNITED STATES

Washington, D. C.

;i.k A VENT, ET AL.,

Petitioners

vs.

?H CAROLINA,

Respondent

No. XX 
No . 26 
No. 58 
No. 66 
No. 67 
No. 71 
No. 68

917 G  STREET, N.W. 
W ASHINGTON 1, D. C.

( 4266 
) 4267 

)  4268 
(. 4269



C O B T E N  T S

le Court
/62

PAGE

ARGUMENT OH BEHALF OF CITY OF GREENVILLE, RESPONDENT
By Theodore A, Snyder — resumed 324

REBUTTAL ARGUMENT ON BEHALF OF JAMES RICHARD 
PETERSON, ET AL., PETITIONERS,
By Matthew J. Perry 330

ARGUMENT ON BEHALF OF NATHANIEL WRIGHT, ET A L .,
PETITIONERS,
Bv James. M. Nabrit, III 337

ARGUMENT ON BEHALF OF STATE OF GEORGIA, RESPONDENT,
By Sylvan A. Garfunkel 351

REBUTTAL ARGUMENT ON BEHALF OF NATHANIEL WRIGHT,
ET AL., PETITIONERS,
By James M, Nabrit, III 388

ARGUMENT ON BEHALF OF THE UNITED STATES,
By Archibald Cox 393

AFTER RECESS - p. 403

ARGUMENT ON BEHALF OF THE UNITED STATES,
By Archibald Cu Cox — - resumed 403

REBUTTAL ARGUMENT ON BEHALF OF THE STATE OF 
MARYLAND, RESPONDENT,
By Joseph S. Kaufman 427

REBUTTAL ARGUMENT ON BEHALF OF CITY OF 
BIRMINGHAM, RESPONDENT,
By J. M. Breckenridge 438



Firsheira #1 
et 1

321

IN THE SUPREME COURT OF THE UNITED 

OCTOBER TERM, 1962

JOHN THOMAS AVERT, ET AL.,

Petitioners

VS,

STATE OF NORTH CAROLINA,

Respondent 

*“* "* *“ ** “*

WILLIAM L. GRIFFIN, ET AL. Q

Petitioners

vs.

STATE OF MARYLAND,

Respondent

RUDOLPH LOMBARD, ET AL.,

V S .

STATE OF LOUISIANA.

Petitioners

Respondent

" X

JAMES GOBER, ET AL.*

vs.

CITY OF BIRMINGHAM.

Petitioners,

Respondent

STATES

HO. 11

NO. 26

HO. 53

No. 66



322

F. L. SKUTTLESWORTH, ET AL.,

Petitioners,

vs.

CITY OF BIRMINGHAM,

Respondent

Ho. 67

JAMES RICHARD PETERSOH, ET ALa,

Petitioners,

vs.

CITY OF GREENVILLE,

Respondent : 
?

..................................X

NATHANIEL WRIGHT, ET AL.,

vs.

STATE OF GEORGIA,

Petitioners,

170. 71

170. 68

Respondent„ , „ „ x
Washington, D. C.

Wednesday, November 7, 1962

Oral argument in the above~entifcled matters was resumed

at 10:05 a.m



323

PRESENT:

The Chief Justice, Earl Warren, and Associate 

Justices Black, Douglas, Clark, Harlan, Brennan, Stewart, White 

and Goldberg.

APPEARANCES:

On behalf of Respondent City of Greenville:

Theodore A. Snyder, Jr. Esq.

On behalf of James Richard Peterson, et al., petitioners 

Matthew J. Perry, Esq..

On behalf of Nathaniel Wright, et al., petitioners:

James M. Naforit, III, Esq-

On behalf of Respondent State of Georgia:

Sylvan A. Garfunkel, Esq.

On behalf of the United States:

Archibald Co::, Esq., Solicitor General

On behalf of Respondent State of Maryland:

Joseph S. Kaufman, Esq.

On behalf of Respondent City of Birmingham:

J. M. Breckenridge, Esq.



324

O  5  C E E  D I N G  S

The Chief Justice: No. 71, James Richard Peterson, et al., 

petitioners, versus City of Greenville.

Mr. Snyder, you may continue your argument.

ARGUMENT ON BEHALF OF CITY OF GREENVILLE,

RESPONDENT,

BY MR. THEODORE A. SNYDER, JR. resumed

Mr. Snyder: May it please the Court, one of the chief 

issues in this case, as well as the other cases which has been 

briefed 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 demon­

stration.

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 

you will find on looking at the cases that the traditional area 

of speech where you have people, to be begin with, who are not 

speaking with each other as between associations and friends in 

private discussion, is that they have to meet in the public 

places for their discussion, that is, on the streets and in the 

parks, in the places where ordinary people will come together 

who had something that they wished to talk about, and we think 

it is proper that people should have freedom to speak co each other



325et5

and try to convince others of their views when they meet in 

public places, in a place like that, and we think they have a 

right to go there to try to convince others of their thoughts 

and of their ideas*

You go a step further, however, when you have a person 

who wishes to try to convince someone else of his thoughts and 

ideas when he goes on that man's private property to do so, 

and chat is what you have in this case.

The petitioners, who claim they have been exercising the 

right of freedom of speech, have left the traditional areas of 

speech, which are out in the public, out in the open, and have 

gone inside a store where they now seek to speak not to the 

other public in general, not to someone who may, by chance, be 

coming down the street, but they seek to speak to the owner or 

operators or manager of this particular premises, so they have 

narrowed down in two ways: one, they have moved away from the 

traditional area of speech and, second, they have moved in and 

they have narrowed their design to speak to a particular person, 

and not to speak to anyone in general, anyone who may happen to 

be present.

Now, they might have that right, and we do not deny they 

have a right, to go to this store to attempt to speak to the 

manager or to anyone who 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

I



326

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 on his own 

property when he does not desire to listen to them. If they do, 

they take av/ay from that person his right of speaking himself.

He has no chance to do anything else.

The .lav/, even in the public places, as it has concerned 

freedom of speech heretofore, has given the right of the person 

who is spoken to either to refuse to listen or to require the 

person who speaks to move away.

For example, in Cantwell against Connecticut, you had a 

speech problem of persons where they would be listeners after 

they had heard all that they desired to hear, required the 

speaker to move on, or they could have moved on themselves 

because they did not want to hear any more, and they had that 

right.

You have the same question in the doorbell cases where, 

on the ground of freedom of religion, a person has the right to 

ring a doorbell to summon the householder, but the householder 

is not required to stand there and listen to whatever the speaker 

may have to say.

He has the right, if he dees not agree with the person, to 

require him to move on. He is not required by any measure of 

the freedom of speech to engage in a conversation with that 

person if he does not desire tou That is what you have in this



327

case.

Here the manager, after he had heard the sound of the 

argument presented co him by the petitioners, did not desire 

to negotiate with them, did not desire to discuss the question 

with them any further and he asked them to proceed about their 

ovm business somewhere else; that was his right. He did not 

have to sit there and listen to their demands hour by hour, and 

when he had told them that, their duty was then to proceed and 

take their conversation somewhere else.

Justice Goldberg: Mr. Snyder, would you mind at this point, 

if it does not disturb the course of your argument, saying a 

word about whether in connection with whether, the manager was 

operating under his own steam, as it 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 cake action in con­

nection with the sit-in?

Mr. Snyder: 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 store 

owners to take the course of action that he did.

Justice Goldberg: You think it was foreclosed by this 

ruling of the trial judge?

Mr. Snyder: I do not, sir, for several reasons.



etS 328

First of all, after the first objection v/as made and sus­

tained, the witness, Mr. West, the manager, v/as asked for v/hat 

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 v/as the ordin­

ance, v/e submit, which prohibited trespass after notice.

Justice Goldberg: Would it not have been appropriate in 

connection v/ith 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 starting on page 22, where 

that offer v/as made, Mr. Perry v/as foreclosed by the Judge, 

unless he were to persist after a Judge's ruling, which he could 

not very well, from pursuing that line of inquiry.

Mr. Snyder: We would not require him to persist after his 

objection had been overruled. But under our procedure, Your 

Honor, the man who has been foreclosed in this manner may, if 

he desires and if he wishes to perfect and sustain his objection 

there, he should have made an offer of proof into the record, 

which he had a right co do.

In other words, he could have stated for the record at that 

point, by way of an offer of proof, v/hat the testimony of the 

manager was anticipated to be on that point, and he could have 

done that had 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 arrangement.



et9 329

Justice Goldberg: Would you not read his comment af ter 

the objection was sustained as being equivalent to an offer 

o£ proof when he stated what he purported to bring out in this 

line of questioning?

Mr. Snyder: No, sir? I do not read it that way. I under­

stand 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 to have done if he wanted to make an offer 

of proof in the case.

In conclusion, just let me say that we have here under the 

14th Amendment the question of whether or not you are going to 

have to balance two things really. You have a property right 

on the one hand, in the hands of the property owner there.

On the other hand, you have the asserted right of these 

petitioners to a portion of their liberty.

The Court, as I see 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, they are co-equal rights.

The Court has got to decide whether one right would give 

way to the other in the circumstances.

We submit that in the case that is presented here, and 

under the facts, that the Court should decide that the property 

right of the owner of this property is paramount to the right 

of petitioners to have their liberty on these premises for the



etlO 330

purpose for which they were present. Thank you.

The Chief Justice: Mr. Perry.

REBUTTAL ARGUMENT ON BEHALF OF JAMES RICHARD 

PETERSON, ET AL. t PETITIONERS,

BY MATTHEW J. PERRY

Mr. Perryj Mr. Chief Justice, may it please the Court,

Mr. Snyder, in his remarks on yesterday, referred to the inn­

keeper doctriner 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 lav/, and most especially by the 

ordinance which the store manager in this case testified he was 

acting upon.

Justice Goldberg: Are there any restaurants in Greenville 

v/here a Negro can get meals, do you know, Mr. Perry?

Mr. Perry: There are a few restaurants which cater only

to Negroes.

Justice Goldberg: But not in the main section of town, 

is that what you are telling us?

Mr. Perry: That is correct, sir.

Justice Harlan: Under your statute or under your lav/, the



til 331

ordinance is properly in this record, is it not?

Mr. Perry: We contend that ic is, Mr. Justice Harlan and, 

as I understood the remarks of Mr. Snyder on yesterday, the 

City of Greenville concedes that it is properly before this 

Court.

Justice Harlan: And the Supreme Court or Court of Appeals 

declined to consider the effect of the ordinance, as I read its 

Opinion?

Mr. Perry: That is correct, sir.

Justice Douglas: If a white man went into a Negro restau­

rant would he be arrested?

Mr. Perry: There have been many contentions in this particu­

lar regard that a white man would be so arrested.

Justice Douglas: Have there been any incidents of that

kind?

Mr. Perry: Not to my knowledge. Not in the whole state 

of South Carolina. I believe, of course, as these cases will 

demonstrate, the demonstrations in soma 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 Douglas: How many cases are awaiting trial of

this kind?

Mr. Perry: A number of them are still awaiting trial. I 

would not hazard a guess as to the exact number, but I think



G tl2 332

that I can answer your question, sir, by stating that more chan 

1200 young people were arrested, and this case, of course, was 

sec down for hearing.

There are a number of other cases in which petitions for 

writs of certiorari are now pending, and a number of cases are 

still to ?oc 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 seem to be awaiting the outcome 

of this class of litigation before this Court.

Justice Black: I do not quite understand. Do I under­

stand you to say it is your belief that this ordinance should 

not be against white people who went into a restaurant set 

apart for Negroes?

Mr. Perry: Ho, I did not say that.

Justice Black: I did not think you had.

Mr. Perry: Mr. Snyder says here that the ordinance in 

this case did not punish the petitioners, but would punish the 

manager had che manager sought to serve both whites and Hegroes.

May we answer that by pointing out that the ordinance in 

this case was not a mere abstract exhortation to the manager, 

but was obligatory in its terms. 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



et!3 333

Mr. Snyder said on yesterday that textile mills are not 

acting in accordance with the state 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 were we 

permitted to go outside the record in this case, we could prove 

that the statute is still followed all over 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 desegre 

gated.

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 whac he believes to be the 

primary issue in this case, namely, whether the proprietor of 

a business establishment has the right to select its customers 

on the ground of race.

We respectfully say that whatever right of personal choice 

a proprietor has to make personal distinctions, the limit of 

that privilege certainly seems to be reached when the person 

exercising it turns to the state for assistance.



etl4 334

This seems to be what happened in this case. The store 

manager, acting not upon his personal choice but upon the man­

date or pursuant co the mandate of the City of Greenville and 

of the State of South Carolina, in 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 versus 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 ocher individuals." 

We respectfully say to this Court that this is what has 

happened in this case, chat whatever right of personal choice 

the manager of Kress1 had in this case, he did not use it. He 

turned to the state to enforce its, the state's policy of 

racial segregation.

Justice Black: Does your argument, chat particular argu­

ment, go to this particular point, that if a man goes into an­

other man1s property, store, anything, and the man does not 

want him there, and he has a perfect legal right to tell him 

so, that the state could not protect him in that right by police 

officers?

Mr. Perry: Well, Mre Justice Black, may I suggest respect­

fully that the record in this case does not show that the manager

did not want -



etl5 335

#3

Justice .black: I am asking you about the argument you 

have just made.

Mr* -|3errY : I believe, sir, that the Constitution would 

not confer upon him the right to demand of the state action 

which would —

Justice Black: Demand? The idea of the law, the right 

of the Court co have lav/, is to keep things from being settled 

by force and violence, all personal differences settled by 

force and violence.

Here is a citizen v/ho has a right under the law, a perfectly 

valid right, to do something, that the state can come in and 

protect that right with its officers, that has usually been the 

case. Are you saying that is not the case?

Mr. 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. You, white, black, red and yellow, are 

invited to come here and purchase."

Justice Black: Then you are denying that they have a 

legal right —  I understand that argument and I understand the 

other one, I think, or I thought I did. But I just wanted to 

know if that was your position, that the state is without power 

through its police force and its officials to protect people, 

people!s rights, on the assumption that they have the rights.



et!6 336

Mr. Perry: I would not go that far, sir. 

Thank you very much.



337

The Chief Justice: No. 68, Nathaniel Wright, et al., 

petitioners, versus Georgia.

The Clerk: Counsel are present.

The Chief Justice: Mr. Nabrit.

ARGUMENT ON BEHALF OF NATHANIEL WRIGHT, ET AL., 

PETITIONERS,

BY JAMES M. NABRIT, III

Mr. Nabrit: Mr. Chief Justice, may it please the Court, 

this case is somewhat unlike the si:: cases which have preceded 

it this week in that here arrests have been made for conduct 

on city property, city park property managed by a city depart­

ment, but it is similar to chose other six cases in that here 

again the police are engaged in enforcing segregation customs 

as if they were an extension of or part of the lav/.

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 the Georgia Code.

That statute, which appears on page two of our brief, 

punishes any two or more persons 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, et cetera.

The petitioners were charged under an accusation filed 

substantially in the statutory language in assembling at Baffin



ecl8 338

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 with­

out evidence of their guilt, convicted under a vague statute 

which denied them due process.

Nov/, I think it is important to look at the facts in some 

detail because of the no evidence claim.

Four witnesses testified at the trial in the state court.

Two of them were, only two of them were, witnesses to the inci­

dent which led to the arrest. They were the two arresting 

officers.

The other two people who testified were a police sergeant 

who came upon the scene after the arrests had been made, and 

the head of the City Park Department who was not there at all 

and had no contact with petitioners, was not a witness to the 

incident, did not know about it until after.

So that the facts I am giving you are the arresting officer's 

version of what transpired, and I submit that it demonstrates



339ecl9

completely that petitioners1 guilt is of no criminal act of 

any kind.

On January 23, 1961, at about 2 o*clock in the afternoon, 

police officers Thompson and Hillis were on duty in Baffin 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 

there apparently —

Justice Black: Owned and operated by the City of Savannah?

Mr„ Nabrit: I understand that is the fact, Your Honor, 

and there is no dispute about that. The testimony of the Park 

Manager at page, beginning at the bottom of page, 42, indicates 

chat he is the Superintendent of the Recreational Department 

of the City, and that as superintendent he has overall juris­

diction of the playgrounds, aid later on he lists them, and 

mentions Daffin Park. There is no explicit statement about 

ownership, but I am sure that the city attorneys will confirm it.

Now, Officers Thompson and Hillis were approached by a 

person who is identified in the record only as a white lady 

and she is, according to Officer Thompson's testimony, supposed 

to have told them there were colored people playing basketball 

in the park, and Officer Thompson made it clear that as soon as 

he heard this, he and his fellow officer proceeded immediately 

to che basketball court.

He said, "I did not ask this white lady how old these 

people were. As soon as 1 found out these were colored people



et20 340

I immediately went there."

When Officers Hillis and Thompson got to the basketball 

court they found the six petitioners playing basketball. Both 

officers agreed that that was all chat was going on.

Officer Hillis! testimony at page 50 says, "When I arrived 

the defendants were playing basketball. They x;ere not necessarily 

creating any disorder* they were just shooting ac the goal*

that is all they were doing, they wasn't disturbing anything."

And Officer Thompson’s testimony at page 41 is the same.

He said in the middle of the page:

"I observed the conduct of these people, when they 

were on the basketball court and they were doing nothing 

besides playing basketball," and he goes on to say, "They 

were just normally playing basketball, and none of the 

children from the schools were there at that particular 

time."

Justice Black: No what?

Mr. Mabrit: There were no children around.

At an earlier point in his testimony, Mr. Justice Black, 

he had mentioned chat 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 2 o'clock.

Justice Black: The City claimed that playing basketball 

was against the rules of the City to play basketball in the park?



t2l 341

Mr, Nabrit: Per se, no, sir? no, sir. This facility 

was obviously designed for playing basketball.

Justice Black: There was no claim by the City that it 

was not available for and used for playing basketball, is that 

correct?

Mr.Nabrit: Mo, that is correct. But the City in its 

brief in this Court makes an argument about the Park rule, a 

claimed argument, that this facility was for children and not 

for adults. This was something that was never relied on by 

the arresting officer.

Again on page 41 the officer expressly disclaimed any re­

liance on this.

At the end of that first paragraph that starts on the page, 

Officer Thompson said:

"I have never made previous arrests in Baffin Park 

because people played basketball there, I don't have any 

knowledge myself if any certain age group is limited to 

any particular basketball court, I don't know the rules 

of the City Recreational Department."

Officer Thompson —

The Chief Justice: Were any rules presented to the court 

in this case, any written rules?

Mr. Nabrit: Mo, 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.



et22 342

#4

I submit that these are very vaguely defined and, in part, 

contradictory* But the important thing is that there is no 

reason at all to think that petitioners had any notice of what 

was in the Park Superintendent's mind or any reason to or 

opportunity to know about it.

Justice Black: Was there any finding of fact —

Mr. Nabrit: Your Honor, there was a general finding of 

guilty.

Justice Black: I am not talking about a breach of the 

peace by colored. Was there any general finding of fact that 

persons playing basketball in the Park were prohibited by the 

City, and applied to everybody in the same way?

Mr. Nabrit: No, there is no indication of anything of 

that kind.

Justice Black: No finding of that kind?

Mr. Nabrit: There is only a general finding of guilty by 

the jury. There were no court findings in the record.

Justice Black: Was there anything in the charge to the

jury?

Mr. Nabrit: 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 that the jury drew.



343

Nov/, turning again to the scene when the officers arrived, 

they proceeded immediately upon arriving to order these peti­

tioners to leave the basketball court.

/Vc that point, one petitioner asked the officer, Officer 

Thompson, who ordered him to come out here, what his authority 

was to come out here and order them off.

Officer Thompson responded he didn't need any authority, 

he didn't need any orders.

Another petitioner began to write down the officer's badge 

number, and when they didn’t leave in a few minutes they were 

all placed under arrest.

Justice Harlan: Was there any physical resistance to the 

officers?

Mr. Nabrit: Ho, 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 

petitioners were cooperative with the officers and got in his 

car without any urging when they were placed under arrest.

When Officer Thompson testified at the trial he stated 

in language that is as clear as day on page 41, that he had a 

racial reason for these arrests. Right in the middle of the 

page thsre at the beginning of the paragraph he said;

"I arrested these people for playing basketball in

Daffin Park. One reason was because they were Negroes."



344

And everything about his conduct confirms that that was —  is 

consistent with that reason in that he said that he went immedi­

ately 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 v/as one which customarily had been used 

only by white people; that the City of Savannah establishes its 

parks in colored and white neighborhood, as such; that the P a r k  
Superintendent testified that it was customary co use these 

parks separately for the different races at page 45.

Officer Thompson also mentioned another reason which is, 

if it means anything, related to race, but is completely un­

substantiated ,

He said at another point on page 40 that the purpose of 

asking them to leave was to keep down trouble which appeared 

to him might start, and he referred to the fact there were five 

or six cars driving around the park with white people in them.

And at another place on cross-examination he acknowledged 

that these cars were on a driveway which passed the court, the 

basketball court, and that this v/as not unusual traffic for 

the time of day.

A curious thing about the testimony is that there is nothing 

at all to give us any information about the conduct, the demeanor, 

of these people in the cars.

There is nothing to even indicate that they observed the 

petitioner or the petitioners observed them. There is no



345

indication that they slowed down, that they drove by repeatedly. 

There is nothing at all to connect this up as a justification 

or substantiation for the officer's expressed, professed fears 

that trouble might start.

There was no one else around. There was no one else 

present in the area at all.

Justice Black: Is it your contention that the charge v/as 

based on such assumption?

Mr. Nabrit: The charge to the jury or the accusation?

Justice Black: Yes,the charge to the jury.

Mr. Nabrit: The charge to the jury which just appears —

Justice Black: I just read it, and I have looked —

Mr. Nabrit: I do not think so.

Justice Black: And they were there, and the officer ordered 

them to leave, and they had to leave.

Mr. Nabrit: That is right. That is how I view it, Your 

Honor.

But in any event, this is one of the things e::pressed by 

the officer during the trial. Beyond this there is nothing. 

Beyond this 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 Black: The statute is broad enough to cover what 

was shown to be done here, is it not, because it says "assemble 

for the purpose of disturbing the public peace, or committing



346

any lawful act," must move 021 as ordered by a Judge, Justice, 

Sheriff, Constable, Coroner, or any other peace officer.

Mr. Nabrit: X do not know whether Your Honor misread that 

or not. It is unlawful act.

Justice Black: : I am reading from page 53.

Mr. Nabrit: Committing unlawful act.

Justice Black: It says here "lawful act." It is probably 

a misprint.

Mr. Nabrit: You are reading from the Judge's charge.

Justice Black: Page 63.

Mr. Nabrit: That is a misquotation of the statute as it 

appears in the Code. Whether that represents what he said to 

the jury or not, Your Honor, I do not know. We have no we 

only have the court reporter's certificate.

Justice Black: Under the statute it is assemble for the 

purpose of disturbing the public peace or committing any unlawful 

act.

Mr. Nabrit: That is correct. The correct statute appears 

at page 2 of our brief.

Justice Black: I wonder if in his charge to the jury he 

charged "committing an unlawful act"?

Mr. Nabrit: Well, I do not believe that he charged them 

anything. And I point out again, as I attempted to earlier, 

that the accusation itself never relied on chat part of the 

statute, "committing any unlawful act."



et27 347

#5

This is something which the court below also observed 

when it, in its Opinion, it said, "The only thing involved was 

the phrase 'disturbing the public peace6 or 'for the purpose of 

disturbing the public peace.1"

In answer to Youa: Honor’s original question about whether 

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 cover acts which I consider beyond 

the common law meaning of this type, to go beyond the common 

lav; concept of unlawful assembly, and the only appellate decision 

construing this statute in a prosecution of it, State against 

Samuels, 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 had not been ordered out of the 

store by any proprietor, people who were there at the sufferance 

of the proprietor, ordered out by a police officer, and that, 

in that Opinion, it seems to me evident, that the court took 

this statute beyond any common law concept of disturbing the 

peace, and applied it to the area of liberty protected by the 

due process clause.

Justice Goldberg: Mr. Nabrit, let me see if I understand 

what you are saying. Are you saying that this statute, which



et28 348

is a fairly common statute, isn't of this type, on its face 

is vague —

Mr. Nabrit: I am arguing —

Justice Goldberg: (continuing) —  or are you saying there 

wasn't evidence to warrant a conviction under the statute?

Mr. Nabrit: I am making both of those arguments, and a 

third argument which I have not expressed yet, that the statute 

did not give them fair warning that their particular acts were 

prohibited.

Justice Goldberg: What was argued in the Georgia Court as 

the Federal basis for relief in the Supreme Court?

Mr. Nabrit: Yes, sir.

Justice Goldberg: Would you, in the course of your argu­

ment, point out which of these was directed to the Georgia 

Supreme Court?

Mr. Nabrit: Your Honor has, perhaps, observed that the 

Georgia Supreme Court's Opinion does not at all discuss the 

facts.

Justice Goldberg: That is correct.

Mro Nabrit: And this is a curious thing which has undoubtedly 

attracted the attention of the Court.

It is our contention that the no evidence issue, the vague­

ness, and the vagueness of the statute in all of the applica­

tions of that term, were properly argued and preserved at every 

stage of the proceeding in the state court.



ec29 349

The due process vagueness question was first raised in a 

demurrer. It was again raised in a motion for a new trial, as 

was the claim chat 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 a nev; trial which embodied a no 

evidence claim and due process vagueness claim.

Justice Goldberg: Was the no evidence claim buttressed 

upon the Federal Constitution?

Mr. Nabrit: The no evidence claim —  I think it is inherently 

a federal issue. Your Honor. It appears at page 17 of the 

record. There were six identical motions for a new trial.

This was the first one, and paragraph one says chat the verdict 

is contrary to evidence and without evidence to support it.

There was no particular reference at that point to the 

due process clause, but I believe that Thompson against the 

City of Louisville stands for the proposition that a conviction 

without evidence is inherently a due process matter.

Justice Goldberg: Does it stand for the proposition that 

an allegation of this type or a complaint of this type is suffi­

cient to direct the attention of che Court to the Federal 

question involved?

Mr. Nabrit: Well, I don’t believe that Thompson indicates 

anything on that one way or another. However, I submit that 

this Court, the Georgia Supreme Court's attention was directed



et30 350

to the problem which you are attempting to raise here, and I 

will try to tell you why.

The basis upon which the Georgia Supreme Court determined 

apparently not to consider the evidence was the theory that the 

petitioners, defendants there, had impliedly abandoned their 

claim that there was error in overruling the motion for a new 

trial by their brief in the Georgia Supreme Court.

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 they are available for the Court to 

inspect.

Now, we submit that chat brief on behalf of these petitioners, 

filed in 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 a new trial," nevertheless, did 

argue these due process issues and that it did argue the facts 

of the case, it did argue that petitioners were convicted for 

innocent acts. It did argue that the officers’ conduct was 

arbitrary and capricious.

There was a long quote from 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 holding that a conviction without 

evidence was a denial of due process, and one of the cases that 

was cited was Yick Wo.



et31 351

Justice Harlan: Had Thompson been decided at the time 

this brief in the state court had been written?

Mr. Nabrit: I am inclined to think that it was. I do not 

know the respective dates off hand, Your Honor. But 1 know 

that the date of decision in the State Supreme Court was 

November a year ago.

Justice Harlan: November '61?.

Mr. Nabrit: Yes. But 1 have no knowledge as to when the 

briefs were filed. The copies deposited with the Clerk may 

very well indicate that.

I would like to reserve —

Justice Harlan: Was Thompson cited in that brief?

Mr. Nabrit: 1 believe not, Your Honor.

I would like to reserve the balance of my time.

The Chief Justice: You may.

ARGUMENT ON BEHALF OF STATE OF GEORGIA,

RESPONDENT.

BY MR. SYLVAN A. GARFUNKEL

Mr. Garfunkel: Mr. Chief Justice and Associate Justices,

I should like to state at the beginning that the State of 

Georgia —  and we are not city attorneys, we are the District 

Attorneys office, they call us solicitors general, and I am 

Chief Assistant Solicitor General in the Circuit, which is 

Savannah —  we admit this was a city operated park.

We further admit that it would be unconstitutional to



352

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 

subterfuge 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 argument yesterday —

The Chief Justice: Are those issues before us to determine?

Mr. Garfunkel: Yes, sir. That is what I was coming to now.

The Chief Justice: Yes.

Mr. Garfunkel: As I heard the arguments yesterday, the 

Court several times referred to the question of what was the 

policy and, as Mr. Nabrit referred to the Pari; Superintendent 

having testified in the development of this case on cross- 

examination, it was understood that the Court was being told 

that these people were being arrested because of being Negroes.

We, therefore, put the Park Superintendent on the stand to 

outline for the jury and the court below and the Court of 

Appeals and before this Court to understand the policy of the 

park, park playgrounds, in Savannah, and I, therefore, would 

like to refer the Court to page 42 of the record, which is the 

testimony of the playground superintendent, in which he outlined 

the way the park3 were set up in Savannah.



et33

#6

353

He said he tried to put them in areas, in white areas and 

in colored areas, although v/e have several which are now in 

mixed areas, Park Extension and Wells Park because in certain 

areas they play together.

He says it 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 has 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 record.

Justice Douglas: This is Mr. Hager?

Mr. Garfunkel: This is Mr. Hager, the Park Superintendent. 

He said then further on at the bottom of the page:

"The playground areas" —  in further explanation —  

"the playground areas are basically for young children, 

say 15 through 15 and under, along that age group, v/e 

give priority to the playground to the younger children 

over the grownups, it made no difference as to whether 

they were white or colored."

He continued:

"Any time that v/e requested anyone to do something and 

they refused we would ask the police to scop" — - that is 

a misprint, it should be "step in, if we would ask them 

to leave and they did not v/e would ask the police to step 

in. We have had reports that colored children have played 

in the Park Extension, but they were never arrested or told



to leave."

He further referred earlier, of course, to the fact that 

they had played in the Daffin Park area and had not been 

arrested.

The facts in this case show that these defendants were 

grown wen, 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 o'clock 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 on 

hard shoes, they had on shirts, jackets, and I think some of 

them might even have had ties on, I am not sure. The police 

officer —

The Chief Justice: Is that against the rules?

Mr* Garfunkel: Ho, sir; but it was to go into the question 

of the bona fide., the purpose of the question of intent, that 

came into the intent, because the defendants constantly said 

they were just merely there for the purpose of playing basket­

ball, and we said the intent v/as not to play basketball, and 

although they denied this all the way down up to this Court in 

their brief in this Court, they say that, perhaps, it v/as not 

to play basketball but to make a profound non-verbal expression 

against segregation in public parks. That is the way they put 

it in order to come into the question of free speech.



355

Now, however, Mr. Hager further on in his testimony said, 

he further testified that, if there were a 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 we have no objection to older people using the facilities 

if there are no younger peop.le present or if they are not 

scheduled to be used by the younger peop.le."

He said, and this is on further direct examination:

"It has been the custom to use the parks separately 

for the different races. 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 the office of the Recreational 

Department and requested a permit to play on the courts, 

but I am of the opinion that it would have been, we have 

never refused one, the request never has been made."

In other words, he said if they came "we would grant them," 

but nobody has ever come and "asked us, so I can11 say we have 

done it because nobody has requested it."

Justice Harlan: What does the record show as to whether 

there were younger people who wanted to play basketball?

Mr. Garfunkel: I am coming to that right now, Your Honor. 

Further, I would like to go on to Mr, Hager's point and 

then I will come back to the actual facts.

Cn school days, and this was a school day, these courts 

and the playground area are at Baffin Park available only for



356

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, and the evidence shows there v/e re two schools right 

across the street, it was reserved for the use of these schools, 

and he further said all during the day these people came from 

various schools to play, not just recess, but they had physical 

education activities in which they would come out and play on 

this playground, and all during the day, even though at that 

particular moment they might not be there, they momentarily 

might come in the next five minutes, and the policemen 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 this was —  and this policeman so testified 

in court that he knew these children would come.

Justice Black: Were there indications of this kind sub­

mitted before the jury?

Mr. Garfunkel: Yes, sir. This is all evidence.

Justice Black: I am not talking about evidence. Did the 

Court charge the jury on the issues?

Mr. Garfunkel: Mr. Justice 31ack, in the Georgia pro­

cedure we have what is locally known as che dumb act, and that 

is the judge is not able to comment on the evidence. He cannot



et37 357

comment one way or the other on the evidence. He merely charges 

the jury on the lav;.

Justice Black: That is what he said, "I am now charging 

you fully on the lav;." But he charged on the lav; as well as 

some rules that they had that these people had violated —

Mr. Garfunkel: Well, the rule —

Justice Black: (continuing) —  a practice of custom?

Mr. Garfunkel: They had violated —  what he charged them

was they had violated the order of the police officer.

Justice Black: Order of the police officer?

Mr. Garfunkel: That is right.

Justice Black: But is it the law, as you understand it,

in Georgia that a man charged with the offense of doing some­

thing that is unlawful and a police officer thereafter orders 

him to leave, that when he is tried they do not submit any 

issue except and other chan as to whether he had to move when 

an officer told him?

Mr. Garfunkel: It is only a general verdict.

Justice Black: I understand the general verdict. But does

the state have to prove its case?

Mr. Garfunkel: The state attempted to prove its case.

Justice Black: Is it part of its case, what you have been

arguing to us here, that these people were violating the rules 

in that they were playing at the time that children should play? 

Mr,. Garfunkel: No, The Court did not go into detail as



358

to violation of the rule.

Justice Black: He did not even mention it, did he?

Mr. Garfunkel: Ho, he did not. He mentioned only that 

they would be charged with going on for the purpose —  and 

there was a question of whether this v/as an intent co disturb 

the peace? all this was taken into consideration.

Justice Black: Maybe it does not affect the argument you 

are making here, but so far as the charges concerned, nothing 

like this was contained in the charge?

Mr. Garfunkel: Of the trial judge?

Justice Black: He is supposed to charge what the law is

and what they violated.

Mr. Garfunkel: The usual trial, the judges in the courts 

below, the Georgia Courts —

Justice Black: He didn’t charge them what would be —  on 

what they would have to pass as being lawful or unlawful except, 

as you say, they disobeyed a policeman.

Mr. Garfunkel: They were not charged with doing something 

unlawful, Your Honor. They were charged with going on the play­

ground for the purpose of disturbing the peace.

Justice Black: Disturbing the peace or some other unlawful

acto

Mr. Garfunkel: Ho, sir? disturbing the peace.

Justice Black: Disturbing the peace, Did he charge them 

as to what amounted to a disturbance of the peace?



et39 359

Mr* Garfunkel: Wot in detail, Your Honor.

Justice Black: Did he charge them ac all?

Mr. Garfunkel: He charged them —  and I will have to get 

his charge, sir.

Justice Black: It would not disturb the peace, \;ouid it, 

if they were there not violating any rules, not violating any 

rules of the city?

Mr. Garfunkel: Not genericallv. This is the case, this 

is the statute, and the way we are arguing to the Court.

The statute becomes violated not by disturbing the peace 

but by two or more people assembling for the purpose of dis­

turbing the peace, not that the purposes of die peace have to 

be disturbed.

Justice Black: They wouldn't have been determined to have 

disturbed the peace, would they, if they attempted to do a 

lawful act on the park?

Mr. Garfunkel: But it became unlawful when they refused 

to obey the police officer's request to leave.

Justice Black: We finally get back to the fact you are 

saying that under your Georgia statute the policeman has the 

complete power, and one of their contentions was, 7. believe, 

that this vests them with arbitrary power, they have complete 

power to determine whether they have already done something 

for the purpose of violating the peace.

Mr. Garfunkel: Then it is up to the jury to so determine,



360

and the j udge *

Justice Black: Yes, if they are charged with what would 

he their —

Mr. Garfunkel: If they thought the policeman was correct. 

That question has not been raised very much, but there is a case 

that is very interesting, from the Court of Appeals of Hew York, 

People versus Galpin, and in that case, one in a million case, 

Mr. I. Sylvan Galpin was a member of the Bar of New York, and 

the reference is made in my brief and I won't give you the 

citation, and he had come out of a restaurant and was standing 

on the sidewalk talking to some friends of his, and a policeman 

came along and said, "Would you please move," and he said, "I 

don't have to move. I am on the public sidewalk," and the 

policeman arrested him for, under a somewhat similar statute 

in the State of New York.

He was convicted. This went all the way up to the Court 

of Appeals in New York, and they were faced with a somewhat 

similar situation because there he says he was validly on the 

sidewalk and the Court said that the policeman had a right to 

believe that he might block the sidewalk, and if the policeman 

felt in his mind and he bona fide made a request in his mind that 

there was that chance, that refusing to obey the police officer 

at that time could very well be and was a disturbance of the 

peace for which a jury or a judge sitting as jury could convict, 

and they affirmed his conviction.



361

The record showed that there was no disorder, it was all 

talk, very friendly„ There were no harsh words or anything 

else, just a request made by a policeman.

Justice Black: I understand your citation of that case 

as a justification of what was done, because there- maybe the 

way the jury was charged, I think that was the only thing per­

mitted to them. Did the policeman order them to go away and 

did they stay? I see no other issue except chat, and that case 

which you referred to may be wholly irrelevant on that issue.

Mr. Garfunkel: And then we have the further question of 

the Supreme Court of Georgia construing a statute in which, I 

think, this Court held in Garner versus Louisiana, that it was 

up to the highest court to construe the meaning of its own 

statute and when it was violated.

The question that I see to be presented to this Court 

would be twofold: first, was this statute used as a vehicle to 

preserve segregation and, second, was there any evidence what­

soever to justify the police officer to believe that a breach 

of the peace was imminent or might happen to cause him to ask 

them to leave. Was he in a bona fide manner asking them to leave.

Justice Goldberg: General, what in this record would 

lead the police officer to believe that?

Mr. Garfunkel: That is what I was coming to.

Justice Goldberg: Were you coming to that?

Mr. Garfunkel: I am glad, Mr. Justice Goldberg, you



et42 362

brought that up. because there are several issues.

First, that these children were there, they were coming, 

and he expected them there. Ee testified, Officer Killis 

testified, and that is in the record or rather, Officer Thompson,

1 believe —

Justice Goldberg: 41.

Mr. Garfunkel: Right.

Justice Goldberg: He said he made these arrests around

2 o'clock, and the schools let cut around 2:30, and it would 

have been at least 30 minutes before any children would have 

been in this particular area.

Mr. Garfunkel: That is true. But, Your Honor, at what 

point would it be 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 Goldberg: But that is not what the Superintendent 

said precisely. You read part of it. Did he not also say on 

page 48:

"If that basketball court was not scheduled it would 

be compatible with our program for them to use ic, and 

we would not mind them using it*"

And didn1t he further say on page 47:

"I dont know whether or not w e had a planned program 

arranged for the day that these arrests were made, I would



have to check my records."

Mr. Garfunkel: But earlier, above that, Your Honor, he 

said, and this was in answer to a hypothetical question, and 

this is tha total question and answer:

"If your planned 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:

"I can:t very well answer that question because you 

have several questions in one. First, 1 would like to 

say that normally we would not schedule anything for that 

time of the day because of the schools using the totals 

area there," so at that time it was reserved, according to 

the first part of his testimony.

Then, in going to try to help the answer in this hypothetical 

question, he said:

"If we had not had something scheduled at that time 

' of day then we would have granted them permission. But 

at that time the total area was reserved for the school 

children."

The Chief Justice: Whose witness was this man?

Mr. 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 they were Negroes.



et44 364

The Chief Justice: Aren't you bound by his cross-examina­

tion?

Mr. Garfunkel: Yes, sir. Eut this was —  what Mr. Justice 

Goldberg asked me was, he quoted the first part, I should say 

he quoted the last part, and this was the first part of the 

same answer chat he was asked. In other words, this answer goes 

on for almost half a page, and he said at first at that time of 

day this playground was reserved for the schools.

Then, in going along further he said, "You have asked me 

several questions in one. If they had not been reserved," he 

said, "if that basketball court was not scheduled ic would be 

compatible with our program for them to use it, and we would 

not mind them using it. If there was a permit issued there 

would be no objections as to race, creed or color." In ocher 

words, that is the last part of the answer.

The Chief Justice: Then he also said, didn’t he, that 

he didn’t know whether there was anything scheduled or not?

Didn1t he?

Mr. Garfunkel: He says, "We never know when they are 

coming," in one part? that is, the parochial schools use it 

during recess and lunch periods and also for sport? and also 

the Lutheran schools and the public schools bring their school 

children out there by bus, and at various times during school 

hours all day long. He said*"We never know when they are 

coming, and they use Cann Park the same way, I might add."



et45 365

Cann Park is a park area in the colored section, and I 

think what the interpretation of his answer is, that he per­

sonally does not know if the schools are going to bring some­

body around at 10 o'clock or 12 o'clock or 1 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 for whenever they want to use it.

#8 Justice Goldberg: But this was not embodied in any regula­

tion 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. Garfunkel: That is correct,sir. There was no printed 

regulations, and there was no —  but we state this, sir, Mr. 

Justice Goldberg, that the going, 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, we are going to charge you with a 

misdemeanor," there is a basic unfairness in such a statute, 

because obviously no one would know that he had 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, 

a police officer wearing a uniform.



et46 366

Justice Goldberg: So is your contention, in substance, 

this, there being no regulation against the use when ic is 

not being used by anybody else, there being no children evident 

in the vicinity since they were not out of school until 2:30, 

that it becomes a disturbance of the peace if a group of men 

are there, using an empty court, it becomes a disturbance of 

the peace if you do not obey a police officer when he says, 

"While you are here legally and properly and not against any 

regulation, I tell you now to move on," is that a disturbance 

of the peace?

Mr. Garfunkel: The police officer did not actually tell 

them, "While you are here legally and properly."

Justice Goldberg: But 1 mean the superintendent said 

they were there legally and properly.

Mr. Garfunkel: Mo. I think the superintendent said if 

they had not been scheduled. But at that time of day they 

would not have been allowed.

Justice Goldberg: DidnJt we both agree a moment ago that 

there is no regulation for playing on a court when it is not 

in use and there is no one around?

Mr. Garfunkel: There is no printed regulation, but there 

is a regulation of the park. I mean, that is the way they 

regulate the parks. If you put it, chat is the way the park 

superintendent regulates the park. If they had printed —  if 

you are saying are there printed regulations that are posted



367

and all of that, I would say, no. But there is this regulation 

in the sense that chat is the way the parks are run.

Justice Goldberg: General, then would you define what 

constituted the disturbance of the peace under the circumstances.

Mr. Garfunkel: Yes, sir. The disturbance of the peace 

under the circumstances, Your Honor, was that they had gone 

there, we feel, and 1 think the record shows, because they 

went there to what they thought was to test segregation.

The police officer —

Justice Goldberg: Is that illegal?

Mr*. Garfunkel: Ho, sir? it is not illegal. But the

police officer said, "On other occasions I have seen colored 

children in Daffin Park and I have not arrested them0 But in 

these circumstances I did."

I think what we are faced with is the police officer was 

exercising a question of judgment. Did he bona fide feel that 

there could be a disturbance of the peace, not that they were 

disturbing the peace, but by their actions cause others to 

disturb the peace.

Justice Harlan: - Could I put this question to you?

Mr. Garfunkel: Yes, sir,

Justice Harlan: Taking this question as you say it 

should be taken, namely, that the offense is disobeying a 

proper action of —  a proper request of a police officer, what 

do you do about the sta tement that seems to be undisputed that



et48 368
r

the arresting officer himself said that one of the considerations 

that led to the command was that this man was a Negro?

Mr. Garfunkel: Yes, sir.

Justice Harlan: Is that a valid Constitutional consideration? 

Mr. Garfunkel: If that was the overriding consideration 

for the man's arrest, I would say that this case should be 

reversed*

Justice Harlan: And you do not get to any question of

the sufficiency of the evidence or anything else, do you, on 

that premise?

Mr. Garfunkel: The question —

Justice Harlan: I wish you would deal with that point.

Mr. Garfunkel: The question presented by and in the briefs, 

the question presented by the petitioners and the way the 

question is presented by the respondent, expressly states that 

because in our brief we have put the question in this manner.

We feel that the evidence shows this:

"Whether the conviction of petitioners for unlawful 

assembly denied them due process of lav/ under the 14th 

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 a 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."



et49 369

Now, the reason he said he asked them to leave was because 

he expected the children.

Now, he said he knew the children would 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. Nov; here we are in a 

predominantly white area —

Justice Black: What does that mean?

Mr. Garfunkel: Your Honor, because he asked the question, 

he said they asked on cross-examination was one of the reasons 

"you arrested them was because they were Negroes," and he said, 

"Partly one of the reasons was." But the overriding reason.

Justice Black. Why should we include that in your question 

there unless it was based on color, "in a predominantly white 

neighborhood?"

Mr. Garfunkel: Because the evidence showed it was in a

predominantly white area.

Justice Black: Why?

Mr. Garfunkel: Because he felt —

Justice Black: The law is all right if you provided parks 

located in a predominantly white neighborhood, that people 

should be excluded because of their color?

Mr„ Garfunkel: No.

Justice Black: What does chat have to do with it?

Mr. Garfunkel: Because the question was asked the police

officer, and that was asked on cross-examination. He said if



370

these were white adult men they still would have to he asked 

to leave. But the fact that they were Negroes added to the 

fear of the police officer that here they were on a playground 

that was at that time reserved for these children, and the 

park superintendent said, "We keep them separate as to groups 

because it is not gocsfl park policy to have grown people on a 

playground which is reserved for children."

He said, "We donct want it" and that is in the record. 

Here were these people who, if they had been adult white men, 

would still have been requested to leave.

But the question on cross-examination was asked, and he 

said, "That was part of the reason, wasn't it?" He said, 

"Partly."

Of course, in the policeman's eyes, it is a fact, and I 

cannot deny the fact that they were on this because there was 

a further chance of a disturbance of the peace —  and they 

were asked to leave, there would be a disturbance of the peace, 

the fact they were Negro. And that is not the overriding con­

sideration.

Justice Black: Bo you think everyone on the grounds would 

have been excluded?

Mr. Garfunkel: Which ones?

Justice Black: The ones who were colored, and that this 

park was predominantly white?

Mr. Garfunkel: No, sir. That was not the overriding —



et51 371

that would not have been sufficient, and if that was the over­

riding reason, and if it was, this case should be reversed.

But the overriding reason —  the fact they were colored, had 

nothing to do

Justice Black: Suppose it was one of the reasons. Would 

that make any difference?

Mr. Garfunkel: Well now, we feel if the fact that one 

of the reasons the police officer says, if there is a legitimate 

reason for reversal, if there is a legitimate reason for a 

police officer to ask them to leave without regard to color, 

the fact that color might incidentally be a part of it, should 

not say that you would not be guilty.

For instance, suppose white adult men went on the play­

ground and they asked him to leave, and this case came up on 

the record of the same type, they went there and played in the 

same way, then would the fact that these people were white, 

would that mean that they should be acquitted when colored in 

the same category would be convicted —  when colored in the 

same category would be acquitted?

The Chief Justice: If these people 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 neighborhood?

Mr. Garfunkel: No, sir? I would not. The only reason I 

mentioned that was because in the record it shows on cross- 

examination, in answer to one of the defense attorney's question



372

was one of the reasons you asked, “That you arrested them 

because they were Negro or did you arrest them because they were 

Negro," and in response to the question it was, "Yes", and that 

is why it was put in the question because it had been put into 

the case by the defense counsel.

The Chief Justice: Why do you say chat the predominant 

reason for the arrest was ocher than because they were Negroes?

Mr. Garfunkel: Because the facts that the State proved 

showed that colored children had played in that park other 

times and had never been arrested.

The undisputed testimony of the Park Superintendent 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 had 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 say, one swallow wouldn!t 

make a summer, one arrest of these people does not show a pro­

gram of segregation, but this feeling that this would be a 

legitimate area of inquiry by this Court and by any of the 

higher appellate courts, the State showed by putting it in that 

this was not the reason because af it were the reason, if this 

were the true reason, then it also would have been applicable 

to all of the other instances, and they should have been arrested



et53 373

to sho.7 that .

The Chief Justice: Then to the extent that he was motivated 

by the fact that they were Negroes, the arrest would be illegal.

Mr. Garfunkel: If that was the sole, if that was the 

proper or overriding reason, and by that I mean if that was his 

motivating reason —

The Chief Justice: You say the other is the overriding 

reason. I understood Mr. Nabrit to say that one of these 

officers testified that he didn't know anything about the rules, 

didn't knew if they had any rules, didn't know what they were 

and, in effect, he didn't arrest them because of a violation of 

the rules.

Mr. Garfunkel: He arrested them, he said —

The Chief Justice: Is that true?

Mr. Garfunkel: That is correct in this respect that he 

didn't know about the rules of the park, but he did know of 

the fact that the cli ldren would be there. He knew this every 

day. He rides this beat, and he knew every day that children 

played in the park during the recess, as he put it, during the 

physical education period.

The Chief Justice: But he didn't know there were any 

rules about anybody else being there.

Mr. Garfunkel? No, sir? he knew chat park was reserved 

for the children.

The Chief Justice: Where does he say chat?



374

Mr. Garfunkel: He says, "I knew that within a half hour" 

—  Officer Hillis or Officer Thompson —

Justice Goldberg: 4l.

Mr. Garfunkel: "Under ordinary circumstances I would not 

arrest boys for playing basketball in a public park. I made 

these arrests around 2 o'clock; and the schools let out around 

2:30 o'clock, and it would have been at least 30 minutes before 

any children" —  that \/as on cross-examination —  "the children 

from the schools" —  this is page 40, the middle of the page —  

"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 like to me might start."

And up at the top, "There is a school nearby this basket­

ball court, ;.c is located at Washington Avenue and Bee Road,

I mean at Washington Avenue and Waters." This is just across 

the street.

"There is another school on 44th Street —  there are two 

schools nearby; I believe they are both 'grammar' schools. I 

patrol that area and the children from these schools play there, 

they come there every day I believe, I believe they come there 

every afternoon when they get out of school, and I believe they 

come there during recess."

The Chief Justice: But he also said, "I don't have any 

knowledge myself if any certain age group is limited to any 

particular basketball court. I don't know the rules of the



375

City Recreational Department."

Mr*. Garfunkel: That is right, sir.

The Chief Justice: And still he arrested them presumably 

for violation of those rules, plus the fact they were Negroes»

Mr. Garfunkel: No, sir. He arrested them for failing to 

leave when he made this request, Your Honor.

The Chief Justice: But if they weren!t doing anything 

illegal, and they were doing something they had no knowledge of, 

did they have any right to ask them to move along —  did he 

have the right as a police officer just to move them along?

Mr. Garfunkel: That is the main issue, as v/e see it, in 

this case.

The Chief Justice: Well, does he have chat right as a 

police officer?

Mr. Garfunkel: We believe as a police officer he has 

the right to ascertain from the facts that he can tell from 

what is happening to determine whether he should make the 

request to leave; chat is a question of judgment. That there 

might be a question of whether, if you or I or someone else 

was there, whether we think v/e should have asked them to leave.

But when a police office, acting on the best available 

evidence in the way he observes it, makes this request to leave, 

if there is any evidence whatsoever to sustain him to show chat 

this was a bona fide request, that he was trying to keep down 

trouble in the parks, then that should be obeyed, and he would



et56 376

for failure to obey it, be in a position of where you are 

doing it at your peril. You might be right or you might be 

wrong.

in other words, you say. "I didnct leave and I was right," 

just like sometimes a man says, "Go ahead and violate that law, 

it is unconstitutional," you violate it at your peril.

The Chief Justice: But if these people -- that is true —  

but if these people were doing nothing out of the way, which 

he said, he said they were just playing there and doing nothing 

else, and if that is true, and if it is true that he had no 

knowledge of a 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 more?

Mr. Garfunkel: We were not charging them with doing some­

thing unlawful, Your Honor. We were charging them with going 

upon the park for the purpose of disturbing the peace.

The Chief Justice: It was a public park.

Mr. Garfunkel: Thac is correct, sir.

The Chief Justice: And they admitted they had the right 

to go there, didn't you? I thought your opening statement was 

that they had the right to go to that park.

Mr. Garfunkel: We said if this arrest was used for the

purpose of preserving segregation in the park, we say that it 

should be reversed. We further say



et57 377

The Chief Justice: You mean although you admit that 

that you don't admit chat a Negro had a right to go on that 

court?

Mr. Garfunkel: No. The Negro had a right to go on chat 

court, but not for the purpose for which they went on it. In 

other words, they went on to see what would happen. They went 

on to see if they could play. At that time —

The Chief Justice: I thought you said —

Mr. Garfunkel: What is that, sir?

The Chief Justice: I thought you also made no point of 

that, that they had a right to go there because it was legal 

under the rules of the park for Negroes or anybody else to go 

in that park.

Mr. Garfunkel: No, sir. I said it was — - I admit if —  

there is no park segregation, but you do not have the right 

to go on the park when the park is reserved for others, and 

you are requested to leave. But we did say the purpose they 

went on this playground, was for the purpose of disturbing the 

peace not by their actions, but by the reaction that they could 

get from the people around them.

If they had actually gone on the park to play basketball 

they would have acted in a differentmanner. These were grown 

men, 23 to 32 years of age, and they went on with the purpose 

of seeing not that their actions but the reaction, and part 

of the disturbance of the peace, as we understand it, in our



et58 378

brief, in our brief to the Supreme Court of Georgia, we have 

dealt very extensively with respect to that, and that was made

a part of this record.

The Chief Justice: Mr. Garfunkel,. I must come back to 

this statement:

"I observed the conduct of these people when they 

were on the basketball court and they were doing nothing 

beside playing basketball. They were just normally play­

ing basketball, and none of the children from the schools 

were there at that particular time."

Mr. Garfunkel: Right.

The Chief Justice: What was it, are you going to tell us 

that because someone else driving around that park might get 

excited that might do something unconstitutional that these

people can be put in jail for not moving along?

Mr. Garfunkel: The unconstitutionality was not because —  

at this time this park was a well-known public playground, the 

people riding around, we presume, knew those children were 

coming because they had come there every day during school hours, 

and that 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 the reaction.

The Chief Justice: They took it over?

Mr. Garfunkel: They took over the playground. There was 

nobody else. Certainly the school teachers or the children



e59 379

would not want to go on the playground —  they might want to 

go, hut they would not want them to go on the playground.

The Chief Justice: Is that all there was on the playground, 

just the basketball part?

Mr. Garfunkel: No. The record, as it shows it, there 

were swings and slides. There is a playground area.

The Chief .Justice: It is rather a large park, isn’t it?

Mr. Garfunkel: It is a large park with the playground 

area which is small. The playground area is at one end of 

the park. The rest of the park is devoted to other purposes, 

and the playground area is immediately across the street from 

these schools.

The Chief Justice: Very well.

Justice Black: Suppose you had had a statute in Georgia 

stating precisely what you said here with an overall considera­

tion for making it illegal for these people to stay there.

In other words, you had a statute which said that because the 

State of Georgia wants to regulate the parks and regulate them 

this way, where men go on the park to play, and they are colored, 

and they are there at a time when they should not be there —  

that is what you have argued here as to what has happened —  

they shall be committing an offense, they shall be convicted of 

such an offense.

Mr. Garfunkel: No, sir? such a statute would be unconsti­

tutional.



ec60 380

Justice Black: Why. because it embraces —

Mr. Garfunkel: Because of the fact that it embraces the 

fact that they v/ere colored.

Justice Black; What were the reasons that this man gave 

you for excluding these men if not one being that they were 

colored, and if we had to determine what was the ground for, 

the overriding ground for, the statute, if it was a statute, 

why would we have to decide it when it is brought up in this 

nebulous fashion?

Mr. Garfunkel: The statute, the question of the color, 

we are going into what was in the mind of the police officer 

as to why he asked them to leave.

Justice Black: He said he arrested them because they were 

colored.

Mr. Garfunkel: Wo, he said first, originally, "I arrested

them because I was afraid of what might happen. Children v/ere 

expected on the playground within a certainty by 2:30."

Justice Black: You also used the words "he arrested them 

because they v/ere colored."

Mr. Garfun3:e.l: The police officer on cross-examination —

Justice Black: Well, whatever it was.

Mr. Garfunkel: Yes. He came baclc on cross-examination 

and said, "Was one of the reasons that you arrested them because 

they were colored?"

He said partly, but that was not the reason he gave.



et61
3^0-A

#11

Justice Black: Suppose the Georgia statute says partly 

because they v/ere colored?

Mr. Garfunkel: The statute would be unconstitutional.

Justice Black: Unconstitutional.

Why wouldn't it be if it was in another statute?

Mr, Garfunkel: The State of Georgia —

Justice Black: You haven't explained this one to me,

Mr. Garfunkel: In the record, Your Honor, I say that is 

why we went into the other issues to show that under similar 

circumstances where there v/ere children who v/ere colored, they 

v/ere not asked to leave and v/ere not arrested. But because of 

the fact —  to show that the reason for the arrest was not 

overriding, primarily, because they v/ere colored. The reason 

for the arrest was because they v/ere grown men. If they had 

been children they would not have been arrested.

Justice Black: Of course, if this was to be used as a 

device for the purpose of keeping colored men off, you would 

agree that you cannot do it?

Mr. Garfunkel: That is exactly what I said at the beginning 

of my argument.

Justice Black: Any more than you can disfranchise people 

by the grandfather clause.

Mr. Garfunkel: That is correct, and that is why we were 

trying to show the court and the jury by the testimony of the 

police officer that in other circumstances colored children had



etS2 331

been allowed to play on the playground and had not been arrested. 

So this would differentiate and show that color was not -*• and 

this same police officer had said he had seen colored children 

playing out on the playground and he had not arrested them or 

asked them to move.

But he said this was different. These were grown men and 

this playground at that time was designed or set aside, he knew 

the children were coming.

Justice Black: But suppose they only applied it to grown 

men when they were colored. He said these were colored and 

they were grown men.

Mr. Garfunkel: Then I think if the defense would have 

shown that that had been used for that purpose that they 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 v/as introduced by the defendants. The only witnesses 

were witnesses by the State.

Justice Black: What do you mean, the man who made the 

arrest gave the reason.

Mr. Garfunkel: Your Honor put the question to me if they 

didn51 arrest anybody, didn't arrest a white man. I might say 

that no colored man has been arrested, no colored children have 

been arrested, under the statute, and v/e have had no further 

difficulty on this question. This is the sole arrest that was



et63 332

made*.

Colored children have played on the parks during the 

afternoon after school hours. I do not know that they play in 

Daffin Park so much because it is further away from the colored 

area, but they do play quite extensively in the Park Extension, 

which is in the midst of a mixed area, and every afternoon they 

play up there.

Justice Black: In your view, if we find —  we would have 

to find this was the overriding purpose, and unless it was what 

you called the overriding purpose, Georgia had a right to do it?

Mr. Garfunkel: I would say that the jury had a right to 

find the man guilty because of the fact that the overriding 

purpose was not —  was that the statute was not being used as 

a cloak to preserve segregation, and that it was not being used 

as a c3-oak to preserve segregation, we feel it should be affirmed.

Justice Clark: What was the actual reason the officer 

gave to the petitioners?

Mr. Garfunkel: The petitioners did not actually ask it. The 

petitioners —  he went up to the petitioners and said, asked 

them to leave, and they said, :,By what authority did you get 

here," and in a very sarcastic manner, and that was all.. They 

did not ask vzhy.

I think if they had asked why I think they would have been 

entitled to have been given a reason. But the evidence of the

officer says, "By what reason," and he says —  or "By what



383

authority," he says, "I will have to ask you to leave, and if 

you don't leave" —  they just piled into the police car. There 

were seven of them, and he had to ask them to get out and wait 

until the cruiser came because they could not carry them all.

The testimony of the officer was they looked like they 

were waiting to be arrested.

The Chief Justice: If somebody asked you to get out of a 

public park, whether it was 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. Garfunkei: I think that would be by what authority, 

but he said they didn’t put it in the way of what authority —  

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 raerely out there, he said they were ready to be 

arrested, the way the police officer said. He said they went 

on that park ground, they played, and when the police officer 

came up and asked them to leave and they didn't leave, and he 

said, "By what authority," and he said, "I will have to arrest 

you," and they just piled right in there. That is the record. 

The police officer —

The Chief Justice: The fact that they went along peace­

ably after they were arrested, is taken as evidence against 

the petitioners?



et65 384

Mr. Garfunkel; Not that they went along peaceably, Your 

Honor, but they practically anticipated. That is the point 

I am getting at.

Justice Black: Is it your statement that a man can be 

arrested by a policeman if a man is peacefully on a place, 

without giving a reason as to why he is arrested?

Mr* Garfunkel: Our State —  I think when a police officer 

is in uniform and the police officer has a right to arrest a 

man for committing an offense in his presence. Of course, this 

became an offense when they did it in his presence.

Justice Black: Without telling him why?

Mr. 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 meet a man and say, a man 

you are going to arrest, and he asks you, "Why am I under arrest, 

you would tell him.

The normal person would ordinarily say, "Why are you 

arresting me?" If some policeman was going to arrest me, the 

first question would be why. I wouldn't say by what authority 

because his authority was his uniform.

Justice Black: You would probably choose other words.

Mr. Garfunkel: Other means.

Justice Black: I would think under the basic rules of 

arresting a man you have co tell him why, by what authority.. 

Would he have a right to resist in the beginning if you didn't?



ec66

fls

335

Mr, Garfunkel: If he is questioning the arrest. If he 

is questioning it —  suppose, and I am talking about the question­

ing# the reason for the arrest. If a man, if I were in plain 

clothes# and I were a detective, and I said to a man, "You are 

under arrest," he might want to know by what authority did I 

have to arrest him.

Here was a man in his uniform and the record shows he was 

in his uniform as a police officer.

Now# he says# "I am going to have to ask you to leave," 

and they say, "By what authority do you corae out here to tell 

us that," and 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 are going to ask you 

—  we are asking you to leave to let them come ouc here," I 

think it would have been a legitimate question for why, and 

the policeman owed them a duty to tell them why.

But they did not go that far. But as soon as he said, "I 

arrest you," they piled into his car. They anticipated all this.



Justice Black: His answer didn't indicate that he was

anxious tc tell them why he was arresting then.

Mr, Garfunkel: The record shows that most of the sarcasm 

or all of the sarcasm was on the part of the defendants. There 

was nothing in the record to show that the policeman did not 

act in a polite or courteous manner to these men.

Justice Black: They did not act polite?

Mr. Garfunkel: Yes* sir.

Justice Black: I/here?

Mr. Garfunkel; He says "One of them sarcastically asked

me"

Justice Black: Sarcastically?

Mr. Garfunkel: Yes.

Justice Black: You mean by the Inflection of his voice?

Mr. Garfunkel: I don't know exactly what it means. All I

know is that is what the witness testified to, Your Honor. At 

that point the witness gave as his opinion, "one of them said 

sarcastically" —

The Chief Justice: He said they were in there peacefully, 

just playing basketball and nothing else, it would irritate you 

to be thrown off of a basketball court in the park.

Mr. Garfunkel: Your Honor, it is the reaction that hurts, 

that comes. Sure, it would hurt me a lot of times to be thrown 

out of anywhere.

The Chief Justice: Yes



Mr* Garfunkel: But it is the reaction that is the cause —  

let us use another example. It is very hard to realize what we 

are saying. It Is not their reaction but It is the action that 

arises from their reaction.

Let us take this: I am Jewish. I am a member of the 

Orthodox faith. There Is a big difference between the Orthodox 

and the conservative. The main difference is the seating, mixed 

seating. In the Orthodox you have separate seating, and in the 

conservative you have mixed seating.

In an orthodox congregation where they have separate seating, 

you have a member of the synagogue who thinks that it 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 a prayer book, and they want 

to engage In prayers. They are not doing anything unlawful. They 

are 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.

The Chief Justice: You think if an Irish policeman came 

in there and said, "Get out of here'1 —

Mr. Garfunkel: I think —

The Chief Justice: You think they would not have a right

to say by what authority?



Mr* Garfunkel: They have the right to ask by what authority 

by what authority they are asked to come in, and I think if he 

said, "by the authority of my uniform," I think they would be 

required to go.

Justice Douglas: You have overlooked one other crucial 

fact here*

Mr. Garfunkel: Yes, sir.

Justice Douglas: The state has sent somebody to prison or 

fined somebody.

Mr. Garfunkel: Pined somebody. The fines, as you will 

notice, were $100 for five of them, and $125 for the sixth, 

and there was a reason for that. There was no Intent to make a 

big case, it was just a question of whether they had actually 

violated —

The Chief Justice: If they do not have the $100 they go 

to jail.

Mr. Garfunkel: If they do not have the $100 they would 

have to go to jail. That is the judgment and the fine.

The Chief Justice; Thank you.

Mr. Nabrit.

REBUTTAL ARGUMENT ON BEHALF OF NATHANIEL WRIGHT, ET AL.

PETITIONERS

BY JAMES M. NABRIT, III

Mr. Nabrit: May it please the Court, these were the first 

Negroes to play on this basketball court. There is some evidence



that some children had fished in Baffin 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 the Negro 

is welcome in this park and has a right to play there but he doe 

not have a right to coine there for the purpose of finding out 

if that is so.

In any event, this is a segregated park to me where the 

only Negroes —  segregated basketball court where the only 

Negroes —  who go there get arrested.

The People against Galpin, a New York case was mentioned. 

That case involved no constitutional issue, state or Federal.

It was the construction of a state lav;.

Now, this argument that the state grants that there was a 

purpose to commit a breach of the peace is an attempt to prove 

a state of mind. It Is an attempt to prove a state of mind in 

a case where there is no admission of such a purpose, and where 

there are no circumstances from which you could infer such a 

purpose.

The circumstances 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 you accept the state's case at its strongest, that 

maybe somehow this area was reserved for children, you still 

cannot get an Inference of an intent to commit a crime without



making a constitutionally impermissible use of the statute, 

to permit someone to be punished where he did not know, he had 

no opportunity to know, of the rule or that he was breaking any 

rule. There were no signs around that this was reserved for 

children.

There is nothing in this case, in Mr. Hager's testimony, 

remotely arising to the dignity of a rule or regulation. The 

best that you can get is that he had a personal preference or 

department preference, unexpressed to anyone until the trial, 

for children to use these basketball courts, and his testimony 

about it being reserved for the use of the schools, he says they 

are more or less left available for them. But there is no 

reason to 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 Neomoko vs. Maryland where the 

petitioners before this Court were convicted of disorderly con­

duct for holding a religious meeting in a public park where there 

was no —  and the only claim of disorderly conduct is they were 

there without a permit, and there was no ordinance requiring 

that there be a permit and, indeed, no standard for the granting 

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.



391

There is no evidence to indicate that the petitioners 

knew the children would be there in a half hour. When they 

asked the officer, "By what authority" —  I think I will read 

that testimony. I don't know which one it was —  this is 

Thompson's testimony,

Justice Stewart: What page?

Mr. Nabrit: The middle of page L!-0. He said:

"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 cane out there, and I told him that I didn't 

need any orders to come out there."

If you can translate that testimony you can imagine what 

that officer really said. But his own version of it is that he 

told the petitioner he didn't need any orders to come out there 

and order them off.

Justice Goldberg: Mr. Nabrit, if we can imagine what the 

officer said, can we also imagine that these fellows came on the 

park to test the segregation question in the park and prepared 

to take the consequences of the fact that there might be some 

trouble if they did? Would that be a fair inference from this 

record?

Mr. Nabrit: 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 non-conformance conduct.



rb-7

.av 13

392

Justice Goldberg: Which might create some problems,

Mr. Nabrit: That Is right. But to me that doesnrt change 

it.

Justice Goldberg: You would say he had the right to do it, 

and we ought to be protecting that right and not arrested for 

exercising it; is that what you are saying?

Mr. Nabrit: Yes, that is right.

To finish that, that the officers never connected their 

order to leave to this problem of that the park was for children 

or "to the half hour period. Actually a half hour is a pretty 

good period to engage in a basketball game, especially when 

you get up around thirty years old.

I respectfully submit that the judgment below should be 

reversed.



393

The Chief Justice: Mr. Solicitor General.

ARGUMENT ON BEHALF OF THE UNITED STATES 

BY MR. ARCHIBALD COX

Mr. Cox: Mr. Chief Justice, may it please the Court, 

the oral argument in these seven cases has thus far covered a 

wide range of new but very fundamental constitutional questions.

In our view none of them or certainly almost none of them 

need to be decided, and the United States takes no position upon 

them at this time because we think that the convictions must be 

reversed upon narrower and much simpler grounds.

I would like first to lay to one side two of the cases and 

then come to the five with which the bulk of my argument will 

be concerned.

First, we have filed no brief, and I shall not argue concern­

ing Wright against Georgia, the case that was just argued before 

the Court.

The constitutional principles applicable to that case are 

well settled. It was conceded at the Bar that discrimination 

on grounds of race in a city park was unconstitutional, and what 

is involved, therefore, is the application of rairly well- 

settled principles to particular facts.

Second, I would like to deal briefly with Griffin vs. 

Maryland, the case Involving the Glen Echo amusement park, 

because it seems to us that that case, too, can and should be 

cited upon grounds peculiar to it alone.



rb-9

394
The decisive facts in our view are three:

First,, Maryland delegated its police authority or part of 

its sovereign power to Lieutenant Collins who was acting under 

the direction and control of the park, so that the park was in 

every substantial sense exercising the police power of Maryland.

Second, Lieutenant Collins made the arrest and instituted 

the prosecution while on duty as a state officer.

May I say in this connection that the warrants that appear 

at the beginning of the record, as I understand it, are warrants 

that serve the purpose of a complaint or information in many 

criminal proceedings, that is to say, this is the way the 

prosecution was started, and if you will look at the first, at 

the application for a warrant, you will see that the police officer 

recites in it that he had already made the arrest, so that this 

was not the initial step toward a formal arrest, that he had made 

the arrest, and this was the institution of the prosecution.

Justice Stewart: In the Glen Echo case?

Mr. Cox: In the Glen Echo case, yes.

Third, admittedly the park's instructions to Lieutenant 

Collins as to what ho should do were based on grounds of race.

Now, it seems to us that on those facts the decisive prop­

ositions of law are also three:

First, that when a state delegates its police power to a 

private person, the state is responsible under the Fourteenth 

Amendment for the way that its police power is exercised.



Justice Harlan; Why isn't that true also in the case of 

an ordinary police officer?

I'lr. Cox; Because of my second proposition I think is, 

perhaps, the best way to answer Your Honor.

We submit that the park manager's discriminatory motivation 

in ordering the petitioner to leave cannot be separated from 

his motivation in ordering the arrest and institution of the 

prosecution.

In other words, you cannot separate his mind into two 

compartments and say that when he asked —  when he had the 

police officer tell the petitioner to leave, yes, then he 

was acting out of a desire to promote segregation. But when 

he told the police officer to exercise the state’s sovereign 

power then he was acting in a non-discriminatory fashion. They 

just being in one m a n ’s mind, it is too close a connection, we 

submit.

Justice Goldberg; General, what is the difference though 

when a case where the park manager having made up his mind that 

he wants to discriminate, as here, because that is apparent In 

the record, or gets on the telephone and calls a policeman and 

says, "Execute It," and in a case where he hires this private 

detective who also has a badge? Doesn’t it all add up to the 

same thing?

Mr. Cox: I think sometimes the fact that you can do, you

can accomplish, the same result in a constitutional way is not



i -b -1 1

396

an excuse for doing it, for going about it, in an unconstitu­

tional way.

When I say accomplish it in a constitutional way, let me 

make it plain that I am assuming that only for the purposes 

of argument. There were argued here, of course, a number of 

other grounds, and I do not mean to imply that I reject them 

at any point. I am not dealing with them. But there are a good 

many things where the same result can be constitutionally 

accomplished but, nevertheless, if it is done unconstitutionally 

there is a violation.

Second, we think that here it is not clear that the same 

result would necessarily have followed.

There is often a practical difference in dealing with minor
f

crimes or squabbles between citizens, between what the police —  

and how the police may act. They have a certain amount of dis­

cretion.

I don't know about Glen Echo or a city, but I know in a 

small country town when two neighbors start a row, the chief of 

police, if he thinks anybody is being unreasonable, he says,

”You had better go see the Selectman Monday night” and then 

the Selectmen d o n ’t have time for him that Monday night, and 

we tell him to come back to a meeting a month later.

There are many practical differences between the states1 

exercising of their own public discretion. One of the best 

illustrations in our history, of course, has been in connection



vi 1th labor disputes

The conduct of deputized officers has been different over 

and over again from the conduct of formal public officers acting 

under the direction of public officials.

Justice Goldberg: Are you arguing then, is it a deduction 

from your argument, that if the state does exercise its dis­

cretion through a police officer and conies in and makes the 

arrest that is more 3tate action or less state action than took 

place here?

Mr. Cox: It is, in a sense, state action unquestionably.

I would say that the question then became whether it was a state 

denial of equal protection of the laws.

Here I think the state is responsible, that the exercise 

of state power has been based on the discriminatory motive of 

the manager.

In the case where the public official comes in, his motive 

may be that he is intervening for the purpose of supporting 

the private decision of the owner of the property to decide whom 

he will license to appear upon it regardless of the motives of 

the private person.

But where it is a private person who is acting out of 

discriminatory motives, exercising the state power itself out of 

discriminatory motives, then it seeni3 to me to be different.

Now, in stating the argument again I did not mean to reject 

the suggestion that it may be enough that the state arrest and



rb-13

# IK

398

prosecute.

The argument has been made, based on Shelly and Kraemer, 

that it is. As to that, I simply take no position.

But it seems to me distinctly different, and I could 

concede there was no state denial of equal protection of the 

laws where the superintendent of the police sends an officer to 

make the arrest and still make the argument I am making here 

because the motives would be or at least could be entirely 

different.

Here the motive, admittedly, the motive with which the 

manager acted, would be discriminatory.

Justice Goldberg: Wouldn’t that be so in both cases?

Mr. Cox: Yes. But the manager is not exercising the 

state power in the case where the independent policeman comes 

and makes an independent judgment. But he is exercising the 

state power in this case.

It has been given to him to exercise. In a sense, perhaps 

it is fair to draw the analogy between this case and in the case 

where the state gives its property currently owned by it, as 

in Birmingham, and Wilmington Parking Authority, and this Court 

said where the state gave Its property in a state building to 

a lessee, then the state was involved to such an extent that it 

couldn’t later pull back and say "We have no responsibility.

The private owner has made the decision.11

Well, so a fortiori, if it gives its sovereign power it



rto-14 399

cannot later attempt to disentangle itself from the way that 

sovereign power is exercised.

Justice Goldberg: But isn't it entangled in both cases?

Let's restate it. A private owner calls up the police and says.,

:,I don't want Negroes to come to Glen Echo. That is the basis of 

my decision and, therefore,since it is my decision that they 

should not come, I want to make an arrest."

Then the state comes and makes the arrest. How does that 

differ from a case where the private owner says, "This is my 

decision and I hire this man and he has a badge to execute it?"

Mr. Cox: In the second case this man he has hired is his 

man, paid by him, loyal, with a duty of loyalty, to him, following 

his direction and exercising no independent judgment whatever, 

and regardless of what the answer may be in the case where he has 

an opportunity to exercise an independent judgment, I submit the 

state cannot disclaim the responsibility in the case where he has 

none.

It may well be, as has been suggested here that there is 

enough state action anyway. But in one case there is a situation 

where it is a step removed. There has been an opportunity to 

make an independent judgment, to act on whatever grounds the 

state may care to act on, and one of those grounds it is argued 

for the other side Is that"we are going to act to protect owners 

to do as they please in admitting people to property."

But where It Is all in the same man's mind, I submit that



rb~l5

400
he cannot separate them out and say —

Justice Stewart: I think your argument can be run the other 

way. I mean., as you emphasize, this was a man paid by and 

exclusively under the control of the operator of Glen Echo, and 

not under the control of the state,

Mr. Cox: But he is wielding state power. Just like the 

man occupying the space in the Wilmington Parking Authority 

building was using state power, he is wielding state power.

Justice Brennan: What you are really saying is we ought 

to consider the Glen Echo case as if that badge had been worn 

by the manager of the park.

Mr, Cox: Precisely, precisely.

If, of course, the Court rejects this ground, then —  

in the Glen Echo case, then —  other questions are presented.

I would like to lay Glen Echo on one side.

Justice Stewart: The Glen Echo case, in that case you 

could not maintain the argument, could you, that you make in 

these sit-in cases?

Mr. Cox: No, sir.

Justice Stewart: Because Maryland does not have this 

massive group of segregation legislation.

Mr. Cox: Nor any ordinance.

Justice Stewart: Nor any ordinance,

Mr. Cox: Such as we rest on.

Justice Stewart: No.



rb-16 401

Mr. Ccx: I come now to the other five cases, and also 

there are strong arguments that have been made to the contrary, 

and which may turn out to be well-founded.

I assume, and solely for the purposes of argument, that 

owners of stores, restaurants and like establishments do have the 

privilege cf choosing their customers upon whatever grounds, 

however immoral or unworthy, and that a state does not violate 

the Fourteenth Amendment by making its peace officers and courts 

available to all proprietors with discrimination and without 

scrutinizing the grounds of their decisions.

I say I assume that simply for the purposes of argument, 

and conscious that there are strong arguments on the other side 

Which may well prevail, and which would have to be considered 

if our ground is rejected.

We think that the principle is not —  that principle that 

I assume is not applicable to these cases for two reasons:

First, we are not dealing here in any substantial sense 

with the right of a property owner to choose whom he will admit 

and whom he will exclude. These stores were open to the general 

public in all five cases that I am now speaking about, open to 

the general public without any discrimination.

The owners have solicited the patronage of Negroes and 

dealt with them regularly at all the other counters, and in 

several of the instances, at least, the counters seemed to be 

all mixed up together so that in anything except the most literal



402

sense, Negroes were free to go anywhere in the store.

But the only privilege that the proprietor is really assert 

ing here is the privilege to subject Negroes to a social stigma 

of inferiority, and to insist on that by preventing them from 

breaking bread together with white people.

Now, from the standpoint of whether there is state respansi 

bility, a state denial of equal protection, that fact may be 

unimportant,but if one comes to consider the other arguments 

that there are substantial private property rights involved in 

a constitutional sense, then it seems to us that Marsh and 

Alabama furnishes a complete answer, and it shows that there 

are no really substantial property rights to be weighed in the 

scale here.

The second difference, and more important difference, is 

that in these five cases there was antecedent state action which 

under well-settled principles, indeed indisputably violates the 

Fourteenth Amendment.

The Chief Justice: lie will recess now for lunch.

(Whereupon, at 12:00 o ’clock noon, the Argument was 

recessed, the Court to reconvene at 12:30 o ’clock p.m. 

of the same day.)



TAYLOR #1 403

rb-1 AFTER RECESS

12:32 P.M,

The Chief Justice: Mr. Solicitor General.

ARGUMENT ON BEHALF OF THE UNITED STATES 

BY ARCHIBALD C, COX —  resumed

Mr. Cox: Mr. Chief Justice, may it please the Court,

I was just beginning to deal with the five remaining cases when 

the Court closed for luncheon.

Our basic view concerning them is that in each of these 

five cases there was antecedent state action which under well 

settled principles violated the equal protection clause of the 

Fourteenth Amendment. I refer, of course, to the ordinances 

In four of the cases, and in the fifth, the Louisiana case, there 

is a mass of current and pervasive state statutes establishing a 

state policy of racial segregation in all aspects of society. So 

it seems to us the only question here is whether the criminal 

convictions are so related to the unconstitutional state laws 

as to be invalid, and we think that they are.

Basically our proposition is that a state may not, con­

sistent with the Fourteenth Amendment, both induce the pro­

prietors of businesses to engage in racial discrimination and 

then prosecute the victims for criminal trespass or some similar 

offense.

Now, because of the importance of the ordinances, I would 

like to take just a minute to review the record with respect to



2

4o4

thorn.

Beginning with Peterson against the City of Greenville, 

the Greenvile ordinance is printed on page 35 of our brief and 

it clearly required segregation in this Kress department store.

It also happens, although we would make the same argument anyway, 

that the record does reveal the effect of the ordinance. Kress1 

manager testified that his Instructions from the national organiza­

tion were to adhere to local custom. Then when he was asked,

"Mr. West, why did you order your lunch counter closed", he 

replied it Is contrary to local custom and it is also the ordi­

nance that has been discussed.

Justice Douglas: There has been some discussion —

Mr. Cox: That "ordinance" means "statute". Well, I don't 

know why anyone reads ordinance to mean statute. The distinction 

has been clearly drawn earlier in the trial and ordinance on the 

face of it to me means ordinance.

It was also planned that the ordinance was identified for 

the purposes of the record and was excluded only on the ground 

of the judge's substantive theory of law which, of course, is 

challenged here.

It also seems plain to me from the opinion of the Appellate 

Court that it regarded the ordinance as properly proved, properly 

before it, but it thought that the ordinance was immaterial 

because it said the prosecution isn't founded on the ordinance 

and therefore it Is not before u s .



The second case, Gober against the City of Birmingham, the 

Birmingham ordinance, again one requiring segregation in these 

department stores at the eating place, is printed here in this 

case on page 22 of our brief. And again the record shows that 

some attention was called to the effect of the ordinance.

It was discussed at the trial. The trial court did cut off 

further inquiry but we do get a certain amount of light into it. 

Thus the witness Gottlinger, who was the controller of zhe store, 

testified in the Gober case that the assistant to the president, 

who is the one who asked Gober to leave, had said he told him 

that they couldnrt be served here and then later he told him 

that it would be against the law to serve them here.

This was the reason given by the store In the Gober case 

to require them to leave.

The point is certainly raised in the trial court by the 

petitioners. Counsel explained, "It Is our theory of this case 

that it is one based simply upon the city’s segregation order." 

And Mr. Gottlinger, the controller, Mr. Pizitz, the assistant to 

the President of the store, and the police officers and everyone 

acted simply because of the segregation law.

So we submit so far as the trial court is concerned, there 

is no question about this having been brought out In the lead 

case. It was adverted to in a second of these cases, or a 

number of these cases that were tried in sequence, at record 

166 and 168, and I think the circumstances of the hearing make



406

it plain in substance that what with the judge, it was the same 

judge, what he had been given notice of in one case he clearly 

had notice of in the other.

Now, it has been argued that Alabama has some ?male of 

procedure that prevent taking this ordinance into account. I 

d o n ’t feel qualified to discuss Alabama procedure in any detail, 

and I think I will have to leave that for the arguments of counsel 

who are more familiar with it, but there are a few points that I 

think I should note that may be helpful to the Court.

One is that the case is cited for the proposition that these 

prosecutions are governed by the rules of civil practice. They 

seem to have to clo only with the assignment of errors on appeal 

and none of those cases —  I can't speak as to the understanding 

of the Alabama Bar, but none of those cases as we -read them have 

anything to do with the filing of special pleas in the trial court, 

or applications or other pleadings.

Second, it is entirely clear that the Alabama statute not 

only permits but apparently requires the Court to take judicial 

notice of this ordinance.

And third, it appears not to be disputed that the petitioners 

in these cases did properly argue to the Alabama Appellate Court 

the proposition that they were being denied the equal protection 

of the laws in violation of the Fourteenth Amendment.

Now, it seems tc me that the reference to the segregation 

ordinance under these circumstances is the kind of legal reason­



ing that a lawyer develops under that main point, that it is 

subordinate to it, the specific application of it rather than 

the kind of point that you would ordinarily be required to raise 

separately. And again although we certainly haven't exhausted 

the matter of research, looking in the obvious places we find 

no Alabama case that would seem to prevent the argument having 

been raised in that fashion.

There may be some that aren't as obvious when we look at it 

in the course of an afternoon. So we think it cannot be assumed 

and indeed would be contrary to general experience that the 

Alabama court couldn't have taken note of this argument. What 

was argued to it, of course, I don't know.

Justice Stewart: You don't know whether anything was said 

in the Alabama Supreme Court?

Mr. Cox: The brief wasn't available in Washington. We don' 

know what was said in the Alabama —

Justice Stewart: Or whether the ordinance was pointed out 

to them?

M r . Cox: What?

Justice Stewart: Or whether or not the ordinance was 

pointed out to them?

Mr. Cox: We know from the opinion that the court said the 

ordinance is irrelevant, as I read it, because the case wasn't 

founded on the ordinance. There was no charge that they violated

the ordinance.



Now, the language is a little broader —  there is no pleading 

based upon it.

Justice Stewart: In the Gober case?

Mr. Cox: In the Gober case. The language in the opinion 

is a little broader. It says there is no pleading based on the 

ordinance, but reading it in context —  1 can't be sure as to 

saying what South Carolina did. This isn't prosecution under 

the ordinance, so stop talking about the ordinance. But this 

isn't, as I will attempt to show a little later, the complete 

answer.

Now, Shuttlesworth is governed by the same considerations 

in thi3 respect as Gober. The charge was that Shuttlesworth 

either incited or aided and abetted in a violation of the 

criminal trespass statute. The same ordinance, same segregation 

ordinance, is involved and it has the same pertinence as before.

If what he was advising these young people to do was const!- 

tutionally protected under the circumstances, then, of course, he 

committed no crime In advising them to do it.

The fourth ca3e is Avent against North Carolina. We have 

set forth on page 6 of our brief the ordinance of the City of 

Durham.

Now, in this case it is quite clear that the ordinance was 

not mentioned in the trial court and apparently it was not 

mentioned on appeal. It is also clear that the North Carolina 

courts will not ordinarily take judicial notice of a municipal



409
ordinance.

The North Carolina statutes do set forth specific ways of 

proving an ordinance. The reference concerned is GS 160-272, 

or alternatively, GS 8-5.

At this Bar yesterday or the day before it was stated by 

counsel that the ordinance we have printed here is an ordinance 

of the City of Durham, that the ordinance is still in effect in 

the City of Durham, and that it has been marked to be repealed. 

Nov;, under those circumstances the only ground, the doubt as to 

the existence of the ordinance, as to the correctness of the 

reported form, as to its not having been amended, is entirely 

removed and the —

Justice Stewart; It was also conceded, wasn't it, that 

the ordinance was unconstitutional?

Mr. Cox; It was conceded that it was unconstitutional as 

indeed it undoubtedly is. I d o n ’t think that removes for reasons 

I will state a little later its significance from this case. It 

also is the rule that where counsel stipulate as to an ordinance, 

then the normal objection to judicial notice is removed. The 

authority I can refer the Court to is a Tennessee case, Getty 

against the City of Memphis, 263 Southwest 532 at 535.

Justice Goldberg: General, do you take a statement by 

counsel, in answer to a question by this Court, to be a stipu­

lation, as to put an ordinance in evidence?

Mr. Cox: I would think it was regarded as —  it was an



b-3

410

acknowledgement of its existence and that it was correctly set 

forth here, yes.

If I made such a statement, I would expect to be held by 

it and I assume he did, although I am not trying to trap him 

into anything.

Justice Goldberg: Isn’t there just a difference between 

stating something exists and stating what its effect may be in 

terms —

Mr. Cox: I don't think there is any stipulation as to its 

effect on the case. If I said that, I quite misspoke myself.

Justice Goldberg: What you are stating is he admitted that 

the ordinance you quoted in your brief —

Mr. Cox: It exists.

Justice Goldberg: —  is the first time it entered the case

Mr. Cox: Yes.

Justice Goldberg: —  Is In existence, Is that correct?

Mr. Cox: Yes, and therefore the necessity of proving it,

I would say, was removed.

Now, the question remains —

Justice Goldberg; The necessity of removing it in the trial 

court was removed?

Mr. Cox: What I was going to say remains and will perhaps 

answer Your Honor. I was going to say the question remains 

whether it was brought up this late. But that would be not the 

normal obstacle to taking judicial notice but a state ground



rb-9
4ll

having to do with raising at this stage something this far 

a long.

As to that, I would suggest two things, first, we are 

assuming that the ordinance is considered in the South Carolina 

case, as it must be, and that this Court should hold, as I shall 

argue when I get to the substance, that the North Carolina 

conviction must be reversed because of it. Then we would have 

established substantive constitutional law in the Durham case 

that there was a deprivation of constitutional rights in the 

conviction.

Now, I find it very hard to believe, Mr. Justice C-oldberg, 

that if the matter came before the North Carolina court in that 

posture, with an admission that the ordinance did exist, that 

it would still say, "well, it is too bad; the petitioners must 

go to jail, even though this deprives them of their consti­

tutional rights, because they didn't foresee what the Supreme 

Court would ultimately hold.

And I thiftk that this Court, it would seem to me, has the 

same power to do what it thinks the North Carolina court would 

do and that is take the ordinance into account.

I would also point out that in the Terminiello case the 

Court did decide it and reversed on c o m  titutional grounds 

because of an error in the charge that had not been raised in 

the state courts.

Finally, and perhaps most important, this Court under the



rb-10 412

relevant section of the judicial code, 28 USE 2106 is, of course 

not limited to affirming, modifying or reversing, but it may make 

such disposition of the case as justice may require.

Nov;, here not only would we have this supervening event 

showing that A vent had been denied his constitutional rights 

but the Court would also have in front of it some other con­

stitutional issue that seemed to us to be new and far-reaching 

and which may some day have to be decided but which doesn't 

have to be decided now.

Under these grounds justice would seem plainly to require 

if this Court can't notice the ordinance, sending the case back 

to the North Carolina court in order to get it an opportunity 

to deal with these supervening events, and I think I have a clear 

precedent for that proposition.

In Patterson against Alabama, which unfortunately I neglected 

vo cite ^  rny brief, in Patterson against Alabama —

Justice Douglas: What is the citation?

Mr. Cox: 294 U.S. 600, and I am going to quote from 606, 

if the Court will permit. In Patterson against Alabama there was 

a conviction in the Alabama courts and the defendant sought to 

raise in this Court a constitutional claim. He had not properly 

preserved his point in the Alabama courts according to state law. 

At the same time the Patterson case was before the court, another 

case, Norris, was before the court which involved the same consti­

tutional issue properly raised.



The Court sustained the constitutional claim in Norris and

then the question was what should it do with Patterson?

The Court held that it would remand Patterson to the 

Alabama court in the light of the supervening events and the 

Court said., "We have frequently held that in the exercise of 

our appellate jurisdiction, we have power not only to correct 

error in the judgment under review but to make such disposition 

of the case as justice may require."

And then it went on and explained much that I have just 

said and sent the case back to the Alabama court to see whether 

their procedure wouldn’t permit them to deal with this new 

development.

Now, there is one difference in that case. It was a 

capital offense. In this case It is going to jail in depriva­

tion of your proper constitutional rights. Thirty days is 

obviously not a3 irremedial as execution. Otherwise it seems 

to me the cases are on all four3.
*

The Patterson case was followed in this Court In Williams 

vs. Georgia, 3^9 U.S. 375, 3^9, U.S. 375, which Justice Frank­

furter quoted from the passage to which I have just referred the 

Court.

Justice Goldberg: Can we send a case back, in other words, 

in effect telling the North Carolina court to change the rule 

on judicial notice?

Mr. Cox: No. I d o n ’t think you would be telling the North



rb~12 414

JLir

Carolina court to do anything. If the North Carolina court 

should refuse to take the supervening events into account, why, 

then, perhaps it would be another ground for bringing the case 

here, and there certainly would be the ground that counsel have 

argued, that we do not press, but justly positioned, Mr. Justice 

Goldberg, would be that justice would require giving the North 

Carolina court a chance to decide what it would do under North 

Carolina procedure in the light of these events.

In this case there is a very good reason for doing it. It 

would be the application of the old, the familiar rule that the 

court should not rush to decide novel and unnecessary constitu­

tional questions.

And by hypothesis, by ray argument in the South Carolina 

case, you would have decided one constitutional question so you 

wouldn't be adding to it.

Excuse me, Justice Stewart.

Justice Stewart: Am I right in recollecting In Williams vs. 

Georgia that the gambit was not received very hospitably by the 

State of Georgia, that it didn't take —

Mr. Cox: I confess I haven't —  perhaps we may expect 

better from North Carolina, but it seems to me that is not a 

reason not to give North Carolina the chance, whatever the upshot 

may be. Or not to give the petitioners a chance, whatever the 

upshot may be.

Justice Harlan: Assuming that one or all of these courses



415

arc open, what bearing do you think it has, that the record shows 

in this case, at least, that this restaurateur was operating in 

violation of the statute, namely, operating the integrated 

stand-up restaurant?

14?. Cox: Well, I think that is not sufficient to —  two 

points. First, I think that is not sufficient to overcome the 

considerations that I am now going on to develop, and I think 

if I might come back to your question, if I haven't answered it 

in developing them, I would be happy to do so.

Second, it seems to me that there is question as to whether 

the ordinance was understood to apply to stand-up restaurants.

As was said at the Bar here, in the argument of earlier cases 

by people who know the customs better than I do, that these 

things apply to sitting down together. They don't apply to 

standing up together.

In that event, the ordinance might have carried just as much 

effect sitting down as if there had been no acquiescence in the 

violation with respect to standing up.

An analogy —  I don't suggest compelling —  will show what 

I a m  trying to say. There are many places where it is well known 

that the speed law is 55 miles an hour, but as long as you don't 

drive over 55, nobody will arrest you, and this may be true In 

the application of that ordinance.

That isn't my only answer. I go on to say why we think the 

ordinances are decisive in these cases.



416

The first three steps seem to me to he clear beyond dis­

pute. The first is that an ordinance requiring racial segrega­

tion is, of course, unconstitutional.

Second, I take it that it is agreed on all sides that if 

petitioners had been prosecuted for violating the ordinances or 

for procuring and aiding and abetting violations, that that 

conviction would have to be set aside as a violation of the 

Fourteenth Amendment because of a denial of equal protection of 

the lav;.

And third, if a state by injunction or active threats of 

prosecution required a department store unwillingly to expel 

Negroes from a lunch counter where whites were being served,and 

then the Negroes were prosecuted for criminal trespass for failing 

to leave, surely their convictions would be set aside as the 

result of a denial of equal protection of the law.

The state can't insulate itself from responsibility for 

unconstitutional state discrimination by requiring some private 

person to do its dirty work for it, if I may put it colloquially. 

That has been adjudicated in a number of lower court decisions 

cited in our brief, and I take it that this proposition, too, 

no one would dispute here.

So that the question would seem to come down to this. Can 

the states defend these convictions as color-blind in the face 

of ordinances requiring the segregation based upon color, upon 

the ground that the ordinances and the convictions are separated



by the owner's decision to segregate, which decision may or may 

not have been the result of the ordinance? Ue think that even 

if that is an accurate statement of fact, that the link between 

the ordinance and the conviction is still too close and that 

the conviction must be set aside upon such a record as a denial, 

as the result of a denial of equal protection of the law.

Justice Stewart: Mr. Solicitor General, you began your 

argument by making the assumption, which you just said was an 

assumption, that there was nothing in the Constitution that would 

forbid an owner of a private restaurant from selecting his clien­

tele even though his selection was based on mischievous or 

immoral or what you or I might think prejudiced and wrong set 

of criteria. But wouldn't your present argument mean that if 

there were, if a restaurateur in one of these Southern States 

which has segregation statutes, and let us say specific restaurant 

segregation ordinance, wouldn't this prevent the proprietor of 

a restaurant from selecting his clientele on a racial basis 

even though in his prejudice he wanted to do that?

Mr. Cox: I think not for several reasons. Let me state 

now —  let me state them now. Again maybe it will become clearer 

after I have said a few intermediate things. But the reasons 

are these.

First, it seems to me in these cases it is not necessary for 

us to go beyond the point of saying that if the decision —  if 

the decision is based upon the desire of the owner of the premises



rb-16 418

without regard to the command or inducement of the state, that 

the burden of proving that rests upon the state in criminal 

prosecutions and upon the ovmer if he is bringing a private 

action. And in these cases the inference and the presumption 

are the other way, and that there is not only nothing to overcome 

them but certainly in the South Carolina case and in the Gober 

case in Alabama there is a great deal to the contrary.

Justice White: So I take it you would make it a matter of 

factual determination? There may be a presumption operating 

which may serve to dispose of these cases, but in the —  but in 

a normal case you would say —

Mr. Cox: I would —

Justice White: —  it would be a factual determination.

Mr. Cox: I would say in these cases it is enough to say 

that the state hasn't overcome the presumption. Now, if we had 

gone beyond that in the brief, J. am quite prepared to go beyond 

it. I am prepared to say that where a state has such an ordi­

nance, that the state cannot both command people to segregate 

and at the same time come into court and defend the prosecution 

for criminal conviction on the ground that its command had nothing 

to do with the owner's decision.

Justice White: At least a —

Mr. Cox: In other words, if we had to, we would be prepared 

to take that next step, but we don't think it has to be taken

here



Justice Stewart: This would mean that a man running a 

restaurant in Montana could exclude all Negroes and serve white

people only, hut a man running a restaurant In South Carolina 

cannot.

Am I right?

Mr. Cox: Mo, because I think again the upshot in a prose­

cution by the state need not be the same as the upshot in a case 

brought by the private owner. That is, the parallel does not 

have to follow.

Justice White: You would say, then, that perhaps the police 

might be, the 3tate might be free to help the owner with his 

self-help but except they couldn't convict him.

Mr. Cox: Well, my X haven’t done any more than make an 

assertion to Justice Stewart. I haven’t given any reason. Might 

X first state my reasons for the presumption and our reasons for 

saying that the ordinance would bind the state, and then against 

that background it is easier to say how far they tfould or would 

not be applicable to the private owner setting up his right, I 

d o n ’t want to run away from it, but X think it would be greatly 

clearer if I did it that way.

Now, we say essentially that there are three reasons for 

concluding in the absence of any other showing that where the 

state has such a command, that it has significantly intruded itself, 

significantly involved itself, in Justice Clark's phrase in the 

Wilmington Parking Lot case, in the discrimination.



420

I would emphasize as a predicate that It Is entirely clear 

on the decision that if the state is a substantial Influence in 

bringing about the discrimination, it doesn't exculpate it on 

the ground that there has been some opportunity for private 

decision in between. That is the Wilmington Parking Authority 

case. It is Wellington & Plummber. It is the other cases dealing 

with restaurants that have sitting facilities of one kind or 

another.

Justice Douglas: Isn't it always such if you send people 

to jail for doing what has been done here?

Mr. Cox: Well, I think it is always state action. I think 

the question is whether it is always a state denial of equal 

protection and the answer to that might be yes for the reasons 

that counsel have argued or It might be otherwise as was argued 

for the other side.

I am assuming for the purposes of our discussion that the 

mere sending of people to jail for trespassing is not a state 

denial of equal protection of the laws. That may be a false 

assumption. I don't want to embrace it permanently.

Now, here we think there are three strong reasons for 

concluding that the state was sufficiently involved. In the 

first place, when a state orders people to segregate their 

restaurants, the normal factual inference is that that law 

simply has an influence on the action of proprietors for one

thing



421

Having been told to do it, they have no occasion to consider 

what they might otherwise wish to do.

Or perhaps more realistically in terms of some of these 

communities, if they might fall away from the local custom, 

they have no opportunity to do it because the ordinance takes 

away from them the power and the responsibility of a private 

decision.

In the Peterson case, as I pointed out, the manager said 

it is the local custom. It Is also the ordinance that has been 

discussed.

Now, a second factor certainly is that the department stores 

situated as these are don't ordinarily act by themselves. In 

matters of this kind, a group of them, the leading stores, will 

follow a common practice. And therefore, even if one particular 

store didn't know anything about the ordinance, it still would be 

likely that other stores did know about it, that they were 

influenced In their decision that way, and that this had its 

impact upon the particular man who said, I never heard of the 

ordinance.

Third, I would emphasise again in support of this basic 

factual Inference that true freedom of private choice carries 

commercial and moral consequences that are affected by an 

ordinance dictating the decision.

Here, as I pointed out earlier, these stores were open to 

Negroes and solicited their patronage. Now, it is one thing to



serve them food, saying I w o n rt do it* It is another thing to 

say, as they said in the Pizitz store, the law won't let me do 

it. Not only are the commercial consequences likely to be 

different but indeed the moral problem that the man faces in 

making that decision is entirely different. And I think it is 

a misnomer to describe a decision made under such an ordinance 

as a free private choice.

Second, In support of the proposition that the states are 

involved, we invoked the familiar principle with the wide appli­

cation in the law that where one does a wrong, as Learned Hand 

once put it, the burden is upon him to disentangle the conse­

quences for which he is chargeable from those which he can show 

he had no relation to or else bear the consequences for the 

whole *

And so here the states having unquestionably violated the 

constitutional rights of Negroes, including the petitioners, 

it is up to the state to prove that its unquestionable violation
i

had no relation to the owners' decisions, and still to these 

convictions.

Justice Harlan: Do you draw any distinction or not between 

the ordinance that was passed for or about the board with the >  

approval of this Court, that what was being done was done and 

what has passed since?

Mr. Cox: I doubt that I would draw any significant distine-



tion. I think in these cases, unless perhaps it were shown, 

and X underscore perhaps", unless perhaps it were shown that 

the ordinance were one widely ignored by everyone concerned, or 

one which possibly was the subject of a specific court decree 

in that community, but we all know that the decision in Brown 

has not been made to take effect in a large number of places on 

the local authority, and in many places they wait until there 

has been an injunction or even a threat of contempt.

In others they don't. But I think a department store owner 

in a particular community would assume, and we are entitled to 

assume, that the ordinance is a living thing, at least until the 

contrary is shown.

Now, there is one other point —

Justice Douglas: I wonder if perhaps you haven't thought 

this through, perhaps you don't care to give a position, but I 

was wondering if the Department of Justice thought that an 

institution of segregation would be perpetuated through this 

freedom of choice conception, the sacrosanct private property, 

whether it be a bus company owned by stockholders or a retail 

store owned by one man or a chain store owned by a big group.

Hr. Cox: Well, I think that the question Your Honor is 

raising is one which may some day be raised in these cases. At 

that time we no doubt would take a position on it. But it is not 

one that we feel is incumbent upon us to take a position upon now 

because it doesn't require decision at this time. Our failing to



424

do so isn't Intended to express anything but the familiar role 

of deciding the case at hand.

Justice Goldberg: General, you place this emphasis on the 

ordinance, and without denegating your argument, would you 

not say it was a fair inference from all of these records that 

custom was the more persuasive influence which led to the conduct 

involved than the ordinance? I ask you this because even in the 

Peterson case, which I think is the strongest case on ordinance, 

Mr. Perry, the counsel, when he entered into the case after

presumably consulting with his client didn't even know about the\
existence of the ordinance and had to Inquire and discover, as 

stated in the record, had to inquire about it.

Isn't- the dominant thing here in the South and these states 

the pervasive custom?

Mr. Cox: I think there is a difference in customs supported 

by the state's demand and customs without the state's demand.

As to what the rule would be if we had a case of custom without 

the state's demand, as to that I don't think it is necessary for 

the Court to make a decision.

It is certainly arguable that custom of a number of people 

is something different from the individual choice of people acting 

alone. But it also seem3 to me that it is certainly arguable 

that custom resulting from the private action of a lot of people 

may be something different from the action of the state.

Justice Stewart: !fhe whole foundation of your argument could



rb~24 425
be brushed right away if the states went through the motion of 

repealing all these integration orders.

Mr. Cox: I don't think that is an insignificant consequence, 

Your Honor. I would, —  if I answered that, I don't want to sit 

down, and I see my time has almost expired, I don't want to sit 

down without directing myself to the question you raised earlier 

which is very important, and that is isn't the effect of your 

argument to say that private citizens in the City of Greenville 

no longer have the right to choose their customers?

Justice Stewart: On a racial basis.

Mr. Cox: Yes, on a racial basis. My answers are these.

First, that no rule need be laid down here that goes beyond 

saying that until the fact is proven, that a man made the choice 

without regard to the ordinance and that the convictions must be 

set aside as the result of significant state Involvement, not 

state compulsion, significant state involvement in the outcome.

Second, the presumption that I invoked about disentangling 

consequences would work somewhat differently when a private 

person was acting.

And third, because it runs against the wrong-doer. It 

wouldn't run against the private person.

Justice Douglas: Then you are proposing a separate rule 

for the South, another one for Montana?

Mr. Cox: I am suggesting a rule for any place that has

such an ordinance and not for anybody else.



rb-25
425

Justice Douglas: He are talking about custom.

Mr. Cox: No, I think not, Mr. Justice. I think I disclaimed 

associating myself with Justice Goldberg's view, just to lay it 

to one side, and what I say is applicable to any place that has 

an ordinance.

Now, I see no reason, Mr. Justice Stewart, that the upshot, 

where the private owner asserts his rights, must be just the same 

as where the state acts. And to take a rather foolish illustra­

tion, but one vihich may make the point, make my meaning clear, 

if a Negro in the South were to steal your automobile and were 

to be indicted before a grand jury, the, what do you call it, 

the call for the grand jury excluding Negroes, the call for the —

Justice Black: Systematic exclusion of Negroes.

Mr. Cox: Systematic exclusion of Negroes, then, so long as 

that persisted, the man who stole the car could not validly be 

convicted of a crime, but I take it you would have the right to 

sue him for trespass.

Justice Stewart; And I could get ray car back.

Mr. Cox; You could get your car back. And equally here, I 

take it, anything that we have said by a parity of raasons would 

not require a result that would hold that the Negroes had a right 

to compel these stores to open up. Maybe they do, maybe they 

d o n ’t.

I would add one qualification, and that is it is quite clear 

on decisions in the .Fourth and Fifth Circuits that if the owner



rb-26
427

excludes them on the basis of the ordinance, then he is acting 

under color of state lav? and under the present Civil Rights Act, 

of course, an action would lie against him.

In the Louisiana case, Chief Justice Warren, we submit that 

the mass of current and pervasive state lav?s, and I emphasize 

current,lav?s enacted as recently as i960, entailing policy of 

Louisiana in favor of segregation, play exactly the same role 

that the ordinances do under the argument that I have just 

presented.

Thank you.

The Chief Justice: Mr. Kaufman.

REBUTTAL ARGUMENT ON BEHALF OF THE STATE OF MARYLAND, 
RESPONDENT,

BY JOSEPH S. KAUFMAN

Mr. Kaufman: Mr. Chief Justice, may it please the Court —

Justice Douglas: What case are you in?

Mr. Kaufman: I am in No. 26, sir, Griffin vs. Maryland, and 

my remarks will be directly only to that case.

Since the Solicitor General both in his brief and in oral 

argument agrees at least by assumption with the basic postulate 

that v?e have submitted in our case, that a private businessman 

regardless of whether or not his motives are praiseworthy or 

commendable may nevertheless deal with those Individuals or 

persons whom he chooses, the case against Maryland, as the 

Solicitor General has stated, is that Maryland through some old 

statute had delegated its police power to the private businessman,



and therefore the power of the state and the power of the private 

businessman had been merged, and that therefore this is state 

action,

We think that this is not a sound argument because on many 

grounds, grounds which this Court has recognised —  it is in 

fact at the time that this power was exercised., it was the 

private detective who was also deputised as a special deputy 

sheriff acting for the state and under state authority, and I 

think that is a very important issue because this Court both in 

the Williams case and in the NLRB vs, Jones and Laughlln case 

clearly recognized that a deputy sheriff, a special deputy 

sheriff or special policeman who was deputized wears two hats, 

and you must look at what hat he is wearing when he performs 

the act.

And we say to Your Honors we think it is important for 

this Court to recognise that this man at this time, Collins, 

was in fact wearing two hats.

Nov;, ny brother, the Solicitor General, says that the 

combination in this case, because of the wearing of the badge, 

and the fact that the special deputy sheriff of Montgomery 

County also had some state authority, therefore resolved this 

man into an all-inclusive power into state power, and that there­

fore it took away his, Collins’, discretion.

Well, may I pose this rhetorical question to the Court? 

Suppose in this case that Collins went to these individuals on



rb-28
429

the carrousel and said, it is the decision of management that 

we ask you to D.eave; would you please leave; and suppose they 

said no. And suppose instead of Collins saying, I am going to 

take you to the police station, swear out a warrant and arrest 

you, suppose Collins said, you stay here, and he goes in and 

calls the county police and the county police come out and the 

arrest is made.

I submit to you that in this case, therefore, there is 

no legal distinction. It is a difference without a distinction, 

and that is exactly what the Court of Appeals of Maryland found.

Nov;, this is a good bit of agency in this question, and I 

would like to point up the fact of the agency, and I think there 

is no dispute in the record.

The state is in no way involved as to the question as to 

whether it may hire or fire Collins. The state in no way sets 

Collins' wages or says he must be paid at all. The state in no 

way instructs Collins as to his duties. The state had no control 

over Collins other than the mere fact that the state as it does 

for every businessman, private property owner, plant, manufac­

turing, or otherwise, will allow their guards, watchmen, to be 

deputized with some semblance of state authority.

Justice Harlan: I-Jhat would you say in the situation if the 

state had deputized the owner of the restaurant itself?

Mr. Kaufman: 'Well, I think, if it was for the purpose of

segregation?



rb-29 430

Justice Harlan: No. He deputizes in this situation —

Mr, Kaufman: Well, I think if I may answer your question, sir, 

that you have to look at the statute and the statute is clear 

that the sheriff of the county —  this is in public local law 

of Montgomery County; this is not a state-wide law —  the sheriff 

of the county on application of any corporation or individual 

may appoint special deputy sheriffs for duty in connection with 

the property or under charge of such corporation or under charge 

of such individual,

Now, they can deputize but if the state acting in a neutral 

position, as we contend it did here, merely deputizes a person 

for the protection of private property, that is nos fostering 

a policy of segregation, and T. think it has been made eminently 

clear that that is not the policy of the State of Maryland.

Counsel for the petitioners as well as the Solicitor 

General recognize that. In fact, if anything, the policy of 

the State of Maryland is to the contrary.

The Chief Justice: Is he a peace officer?

Mr. Kaufman: Sir?

The Chief Justice: Is he a peace officer?

Mr. Kaufman: Mr. Chief Justice, this is a very difficult 

field and we went back to the common law and the sheriff at 

common lav; is a conservator of the peace, and I therefore would 

say if those duties have now been superseded or construed to be 

superseded by the statutory law, he would have some authority of



rb-30 431

a peace officer, yes, sir, but we have a very peculiar situation 

as to sheriffs in Maryland, and I think it might be well to state 

this to the Court, that the sheriff, primarily in Maryland, is a 

process server, lie have in Montgomery County, for example, a 

county police force, lie also have the state police force which 

exercise the police or peaceful authority of the state. So 

primarily the sheriff has in fact two functions in Montgomery 

County. He is a process server and he is the custodian of 

prisoners in the county jail.

The Chief Justice: Does he have the right to form a posse?

Mr. Kaufman: Yes, posse comitas. There is a case vie cited

in our brief, very early case, 5^ Maryland, which went to that/
and indicated that the sheriff himself has that authority, sir.

The Chief Justice. That means he can command people to 

become, to act as peace officers.

Mr, Kaufman: I think under the common law he could do 

that, yes, sir.

Now, if I may, sir, and this case was not cited on our brief, 

but since this issue has become important, with the Court's 

permission I would like to give you this case, it is the old 

case of Deck vs. Baltimore and Gilo Company. That is cited at 

100 Maryland, 163; 100 Maryland 168, 59 Atlanta, 650, 59

Atlanta, 650.

In that case, similar to this, a railroad guard was designa­

ted by the Governor to be a special policeman. He obtained a



a commission. And as the special policeman he also had the right 

to vjear a badge.

Now, one summer day some boys apparently hopped a freight 

train and took the train from Baltimore to Elkton, which is 

just outside Ellicott City, and they hopped off the train, and 

that evening they started to come back, and Steiner, who was 

the special policeman, saw the boys on the train and he ordered 

them to get off, and as they were getting off and leaving, one 

of the boys was shot and seriously wounded, and the question came 

up as to whether Steiner at the time he was acting as agent for 

the railroad —  was he acting as agent for the B&C railroad or 

the state?

And the Court said this:

"This brings us to the question as to whether Steiner 

was acting as an employee of the company or as a commissioned 

officer of the state when the injury was inflicted. It seems 

to be clear from the testimony that he was employed and paid 

by the defendant at the time indicated and he was acting as 

a policeman-detective, and whether he was acting in one 

capacity or the other is a question for the jury," 

and in that case the jury found he was acting for the railroad 

company.

That case went back on appeal in 102 Maryland, 669, where

the Court of Appeals again said :

"Steiner was a state officer appointed by the Governor



under the law and held a commission for the state. He was 

also an employee of the defendant company, but when he 

was acting as an employee of the company” —  "but whether 

he was acting as an employee of the company at the time the 

injury was inflicted or commissioned officer of the state 

in the exercise of his powers, in attempting to arrest with­

out a power of warrant, was a question again for the jury." 

The Chief Justice: Did the court instruct the jury in this 

case to that effect?

Mr. Kaufman: Your Honor, this was a case without a jury, 

and I may just point out one question to Your Honor. You asked 

why this ease took so long in coming to trial. The petitioners 

here prayed a jury trial before the Magistrate. When a petitioner 

or defendant prays a jury trial, it divests the magistrate of the 

jurisdiction, and it must be sent to the Circuit Court. It was 

sent to the Circuit Court and when it got to the Circuit Court, 

then they waived jury trial and took a trial by the judge.

Now, if Your Honor please, I want to answer the question 

that my brother raises as to whether in fact Collins lost his 

right of judgment because he was acting for his employer and 

whether an unemployed, independent police officer had come, he 

would have exercised some discretion.

That is not the police officer's duty. That Is the 

magistrate’s duty to determine who is right or wrong in this 

controversy, and the police officer who would take it upon himself



rb-33 434

to be the judge i.3 acting way beyond the scope of his authority.

Justice Stewart: It is done every day, isn't it?

Iir. Kaufman: Of course it is, Your Honor.

Justice Stewart: In minor offenses of whether to arrest 

somebody for loitering and disorderly conduct.
4

Mr. Kaufman: But again, if I should be mean enough to 

strike my wife and my wife calls the police, it is not the duty 

of the policeman to determine whether I did in fact strike her 

o.< had justification ior striking her. It is for the Magistrate 

to determine that. And if she Insists that a charge be placed 

against me, It is the duty of the officer to take me to the 

police station and see that I am charged, not for him to make 

the decision.

The Chief Justice: Is it appropriate practice in such 

cases for the officer to say to your wife, you arrest him and I 

will take him to the police station, and then he takes you to the 

police station, and then you go through your proceeding. But 

does an officer have the right or can one person, for instance, 

on the word of another arrest a person for a misdemeanor?

Mr. Kaufman- Your Honor, the rule is, I think, as has been 

well defined here, that a police officer may arre3t an individual 

for a misdemeanor if It occurs within his presence.

The Chief Justice: Exactly, but this didn't happen within 

his presence.

Mr. Kaufman; But the practice is, and it happens many times,



rb~3^

^35
that both the husband and wife would go to the police station

and the warrant would bo sworn out at that time. But If Your 

Honor please here, why 1 also raise the point that there might be 

a difference without a distinction here, 1 think as Mr. Justice 

Goldberg tried to bring out with the Solicitor General, it is 

that the police officer Collins here, the special deputy sheriff, 

could have gone down and sworn out what we generally know as a 

"show cause” order. It is a subpoena to appear- before the 

Magistrate, show cause why he shouldn't be charged. And what 

would have been the difference if he had done that instead, as 

apparently happened here, all the parties together in a peaceful 

way went to the Magistrate and the warrant was sworn out?

The Chief Justice: The Magistrate would use his discretion 

then, wouldn't he?

Mr. Kaufman: As to a show cause order?

The Chief Justice: As to whether you would arrest the

man.

Mr. Kaufman: Well, the Magistrate, if there is a prims 

facie showing that there might be a violation of law, the 

Magistrate would then issue the warrant and then on a hearing 

determine whether the facts support the charge.

Justice Goldberg: What significance do you place at all 

on the Deputy Sheriff’s status? Why did he become a Deputy 

Sheriff?

Mr. Kaufman: Well, sir, I think that can be answered best by



rb-3 5
436

this Court's own statement in the NLRB vs. O'ones and Laughlin 

case. It is because of the fact that certain business interests, 

and you will note that our statute limits it to business interests 

of their either immensity or inaccessibility to normal police,at 

all times want the additional protection to have someone on hand. 

And I think that is —

Justice Goldberg: Vested with state authority.

Mr. Kaufman: Well, if Your Honor please, the Court's 

statement in the Jones and Laughlin case was:

"Because of the magnitude and other characteristics 

of Jones and Laughlln's works, the police protection by 

ordinary police of the City of Cleveland Is not practical 

or feasible, and as a result, for a great many years the 

police protection of the works, the enforcement of the law, 

peace and order therein has been delegated wholly to the 

plant guard force."

And in that case, if Your Honor please, the court made a 

very clear distinction that this was private property, that when 

they are performing public functions, they are public officers.

When they are performing private functions, they are private 

officers. And the Court there said, this Court said that they 

were employees within the meaning of the National Labor Relations 

Act.

They did not take on the status of being state employees under

the terms of that A c t .



rb-3o
437

Now, if Your Honor please, the Court of Appeals of Maryland 

in its decision found that the actions of Collins here were no 

different than if he had called the police and had them come and 

together they had gone to the police station and a warrant were 

sworn out, and again this Court, if it is wrong, under the 

doctrine, it said:

"It is one step removed from state enforcement of a

policy of segregation and therefore violated no constitu­

tional right."

Justice Douglas: You said at the beginning that Maryland 

did not embrace segregation as a public policy.

Mr. Kaufman: I think that is an accurate statement, sir.

Justice Douglas: But doesn't this judgment put Maryland 

on the side of embracing it?

Mr. Kaufman: This judgment —

Justice Douglas: Because this judgment —  this isn't a 

suit by Glen Echo in a civil side to get damages for the loss 

of its business as a result of the appearance of a Negro.

This is a judgment that Indicates the public interest of Maryland, 

isn’t it, in not having Negroes mixed with the whites?

Mr. Kaufman: No, sir. I will not accept that statement, 

sir, because —

Justice Douglas: It is a judgment in a criminal case.

Mr. Kaufman: It is a judgment In a criminal case. It is 

part of the complaint just as If I would strike my wife. That



is her complaint, but the state sanctions and says that wife- 

beating or assault is a wrong and that the state will not ccndonc- 

such a thing. All this is done just as if this wa3 a trespass 

on a land, where if I cone on your land to hunt and you have 

your land posted, although it is a private right to keep your 

land free from impostors who want to hunt, and if I violate that 

law I am subject to criminal penalties, it is true, but I do not 

accept the proposition that it is for the purpose of fostering 

segregation, and I think the record will bear it out as conceded 

by both sides that since this case, an equal accommodations 

ordinance was passed in this jurisdiction, so I will not accept 

that as a proposition to agree with.

Thank you, sir.

The Chief Justice: Mr. Breckenridge.

REBUTTAL ARGUMENT ON BEHALF OF CITY OF BIRMINGHAM, 
RESPONDENT,

BY J. M. BRECKENRIDGE

Mr. Breckenridge: If It please the Court, I am, of course, 

representing the City of Birmingham in connection with the two 

cases involving the City of Birmingham before this Court.

I would like to say to begin with that the ordinance involved, 

trespass after warning, is an ordinance for the protection of 

private property. It applies to everyone and, of course, is 

not unconstitutional on its face. It Is for the benefit of

private property owners.



rb-38

2!-39

Certainly, as this Court has held, even a constitutional

ordinance, if unconstitutionally enforced, is subject to a 

prohibition of the Fourteenth Amendment, and I do not believe 

this ordinance has been unconstitutionally enforced, and I will 

demonstrate it to this extent.

As I said, it is based on private property, buttresses up 

private ownership, and, of course, in a capitalistic system 

which we are in and which we hope to continue, private property 

is a fundamental basis of that system and is one of the funda­

mental distinctions between that system of government and at 

least one other system.

I mention that because I want to bring out the importance 

of the ordinance relating to trespass on private property, not 

as an excuse for enforcing any unconstitutional items, but the 

ordinance itself, the purpose of it. It is and can be Invoked 

only by private persons, not by the state but by a private person.

Now, it is different from an ordinance against assault. May 

I advert for an illustration, as the news reports showed some 

three or four weeks ago, Dr. Martin Luther King addressed a 

meeting, or rather, conducted a week-long meeting in the City 

of Birmingham without incident except for one instance and then 

by a non-resident of the state who attacked Dr. King at one 

meeting.

He was promptly arrested by the police and placed in jail.

Dr. King did not want to prefer charges and did not want to



rb-39
440

prosecute, but the c i t y  said in that case,whether you want to 

prosecute or not, we are going to prosecute the case and wo 

want the evidence.

They got the evidence and the non-resident white man who 

started the trouble was given a jail sentence and fined.

That is a type of ordinance that the state can get behind 

and needs to protect for the general public, but the trespass 

ordinance against private property is not such an ordinance.

Now, with that distinction in mind, I would like to say this.

If that ordinance is invalid, and I think everybody concedes it 

is, then it can be —  its enforcement can be prohibited In 

cases such as we have before us only If there is a prohibition 

of the fourteenth Amendment.

Now, if there is a prohibition of the fourteenth Amendment 

between the enforcement of that ordinance in a specific instance, 

then certainly it should not be imposed. The fourteenth Amend­

ment, of course, operates against the state and guarantees 

property rights to white people, to Negroes, Chinese, and everyone. 

So the fourteenth Amendment must operate alike upon all.

In this case, in a case involving private property rights, 

would we say that a void ordinance, and the existence of a void 

ordinance, and we concede it is void, adopted prior to 1930,

—  it appears In the Birmingham City Code of 1930 at a time 

when it was perfectly valid and approved by this Court —  it 

was brought forward into the City Code of 1944 at a time that this



Court had not held such an order Invalid, It Is invalid now?
A

I would not and have not argued even to the District Court that 

It is invalid. It has been declared invalid since these cases 

in a case in which no one was arrested in Birmingham and we did 

not argue the validity of the ordinance and we admitted the 

ordinance was invalid. So —

Justice Goldberg: Has it been repealed, Mr. Breckenrldge?

Mr. Breckenrldge: Mr. Justice Goldberg, it has not been 

repealed but I do not think even the civil rights cases have 

been repealed. And I think Mr. Chief Justice John Marshall 

settled that question. A repeal is not necessary. The power 

of this Court takes the life out of such an ordinance, takes 

the life out of any constitutional laws, and repeal is not 

necessary. If repeal were necessary or if repeal would serve 

any purpose, then there should be some Federal authority to 

require it. There Is none that I know of because this Court 

shifts from day to day, and it should not be enforced when it is 

invalid.

Now, I am talking about the so-called segregation orders. 

Now, let us say it is left on the books, and this is not an 

isolated case. Such ordinance is —  there are such ordinances 

on the books.

Justice Brennan: Bxcuse me. When was the most recent 

codification of the Birmingham code?

Mr. Breckenrldge: IS)2*2*. We are now In the process of



codifying the code and I have something to do with it, and as 

we have in the past, any unconstitutional orders will be left 

out. It would be a waste of money and expense to print it.

There isn’t any question about this ordinance.

The Chief Justice: Would the fact that it was declared 

invalid after this case have any bearing on this case?

Mr. Breckenridge: I do not think so, Your Honor. I do not 

think that it would have any bearing on this case, and I will 

show you, I mean, I believe I can demonstrate it here. We are 

protecting private property. If we can keep that in mind and

get away from the emotional aspects of the case, and I do not __

we recognize that emotions, are on both sides and that Is a fact 

we have got to live with, and we have got to solve, and we all 

hope to solve it and solve it in a way that will be to the 

benefit of this Nation.

There is a difference in views as to that way. We agree 

It has got to be solved.

Now, it has not been repealed. It is void. But the 

private property owner, should he be deprived —  here is a 

private property owner under the Constitution and he has a 

constitutional right in the civil rights cases and under the 

law as it has existed up to this moment in the operation of his 

business, a store, a barber shop, beauty parlor, to say, I will 

take this customer, that customer, I will take this class of 

customer, that class of customer; I will not take another one.



rb-42
443

That is an unadulterated property right as to this type of 

operation, as far as the Federal Government is concerned. I am 

not talking about state power. That has been recognized up to 

this time.

Now, if we say that the void ordinance in this case —

Justice Douglas: How has it been recognized up to now?%
Are you talking about Plessy vs. Ferguson?

Mr. Breckenridge: No, sir. Plessy vs. Ferguson was the 

law up until the Brown cases. I am talking about the Shelly v s . 

Kraemer and a number of other cases, and cases from the Fifth 

Circuit which have said that the private property owner can 

discriminate privately as he sees fit.

Now, I am coming to the question of whether or not this 

void ordinance should take away the right to the property owner 

to prosecute. If the void ordinance is going to take that right 

away from the property owner to prosecute, then he has lost a 

constitutional right which we contend that he has. And why? 

Because state officials had a void ordinance on its books. He 

has lost a right that he would have in Montana or Kansas, maybe, 

or some other state, but he wouldn't have that right In 

Birmingham, Alabama. So I say the mere existence of the void 

ordinance.isn't enough.

If the evidence shows the mere existence —

Justice Harlan: The Government doesn't contend that.

Mr. Breckenridge: It isn't enough.



rb-43
444

Now, well, some of the arguments that have gone before I 

thought —  I rm  sorry, I understood that they were contending 

that if you got a void ordinance, then you have got a —  not 

void ordinance, but if you have got a segregation ordinance, 

then you can't enforce this if it applies to Negroes only or 

white people only.

So the — -

Justice Goldberg: Mr. Breckenridge, are you asserting 

that at the time this incident took place the city authorities 

of Birmingham were not enforcing the segregation ordinance?

Mr. Breckenridge: At the time this incident took place,

I do not know of any enforcement prior to that time. As you heard 

counsel yesterday who handled it in the trial court, he said he 

did not even know of a segregation —

Justice Goldberg: That was in the Carolina case, and he was 

not from that town. I should hastily add he might not have known 

because he was from another city, but in Birmingham, is it not 

logical to assume that an ordinance that you had on your books 

which had not been declared void was being enforced? Wasn't it a 

law that applied?

Mr. Breckenridge: If it is a void ordinance, and I would 

say if it was understood to be valid, that there might be some­

thing to it. But I believe every child above the seventh grade 

especially South —  well, especially in Alabama —  knows that 

this Court has said and it is the lav/ that you cannot by state



rb-44
445

action classify according to race. And certainly the store 

owners know it.

The Chief Justice: Some of the states involved in these 

cases have deliberately passed laws as bad as this one and 

worse since Brown vs. Board of Education, and up to the last 

year or so. Why do you say, then, that any child will know and 

no one —

Mr. Breckenridge: That it is —

The Chief Justice: No one would do it?

Mr. Breckenridge: That it is invalid. J. said that it is 

invalid. I didn't say it wouldn’t be enforced. But that it is 

invalid. Now, the question of enforcement, for instance, you 

don't need a law, as I understand the Fourteenth Amendment. You 

don't need a law, void or otherwise. If a man clothed with 

state authority tries to force discrimination, then you have a 

violation of the Fourteenth Amendment.

Justice Douglas: How about a judge?

Mr. Breckenridge: I believe the judges have certain judicial 

protection, but certain of their decrees would be subjectto review 

and reversal occasionally.

The Chief Justice: How about a deputy sheriff?

Mr. Breckenridge: In Baldwin vs. Morgan, a case we carried 

to the Fifth Circuit twice, it was held that the police in uni­

form, where he went into a white waiting room, we had no ordinance

that said a waiting room had to be white or colored. He went



rb~45
446

into a waiting room and he said, let me see your ticket, and 

notwithstanding the Terrainiello case and the officer said, there 

is a colored waiting room in another place in the station.

The Fifth Circuit said that is not permissible if you have 

a uniform. That type of act is a violation of the amendment.

So we come back to this, what effect did this ordinance have, 

if anything, on the particular individual operator of a private 

business? To say that because the ordinance exists that he can't 

discriminate as to the selection of the customers would be taking 

away his equal protection of the laws. So I would say in a case 

like this, they would have to -- there should —  the state I 

believe had proved a prima facie case when they showed that the 

manager, when they show the elements which make trespass after 

warning and when the manager of a store says, you will have to 

leave, I think that I —  I submit that those words mean what 

the English language expects them to mean, and in America we 

don't think people do things that they are not —  don't want to 

do, certainly if we know the law is invalid. But assuming he 

was under a compulsion, then you might have a case. But I think 

the record, the defendant should raise it in the record by asking 

and bringing it out and if it is objected, bringing up a showing 

of what would be testified.

The issue here would be whether or not there was a threat 

of enforcement. Not many store owners in Birmingham —  they 

offered none on the stand to find out if there were any city



officials which said, you do this or that or the other, and 

thereby put state power behind you.

Justice Black? Bo you think it would have been admissible 

if they would have shown statements by the police commissioners 

relative to this statement as to what they had done to violate 

the —

Mr. Breckenridge: Not as to what they would do. That is 

where you run into trouble. When you try to get the mental 

operation of the owner, we run into trouble there. But I have 

had cases in the Federal Bistrict Court, and which have gone 

up, in which there was no problem there and they would bring 

the city official in and put him on the stand and say, didn't 

you say this at such and such a political rally, at such and 

such a place? Bidn't you say this? And the police chief —  

didn’t you tell so-and-so this or that? Then you have facts, 

not mental operations.

Justice Black: Bo you tell us as city attorney that it 

was not the policy of the Commissioner of Police to enforce 

every segregation ordinance they had?

Mr. Breckenridge: I can say that this ordinance was not 

enforced. I cannot tell you that at the time of the trial of 

these cases every segregation ordinance on the books would not 

be enforced or that they would not enforce it. I cannot tell 

you that.

Justice Black: Can you deny the city would enforce it ?



rb-4-7 448
The man in charge of the who 13? The police commissioner?

Mr. Breckenridge: At the time of the trial of these cases,

I have no facts with which I can answer that question.

Justice Black: What about now?

Mr. Breckenridge; As cl now I don't know. Advice of my 

office is that none will he enforced, and I would say this, that 

they would be nolle prossed on appeal if there was a violation. 

For instance —

Justice Black: What court?

Mr. Breckenridge: Circuit Court from the Recorder's 

Court.

Justice Black: Have any been nolle prossed by the Circuit 

Court, segregation cases, on the ground that the law is unconsti- 

tutiona1?

Mr. Breckenridge: Yes. I have nolle prossed.

Justice Black: What case?

Mr. Breckenridge: I have nolle prossed two involving—  

not in this record, of course —  involving bus stations.

Justice Black: That is after the Federal Court passed on 

that law.

Mr. Breckenridge: After the Federal Court passed on that 

law, yes, sir. In fact, —  wait a minute. You asked me if 

they were nolle prossed also. I will tell you in Baldwin vs. 

Morgan we nolle prossed that in court because there vias no

disorderly conduct, because they were sitting in the white waiting



48
449

room, and there was no disorderly conduct.

Justice Black: I am asking you these questions because we 

have to decide this on realities.

Mr. Breckenridge; Well, Your Honor —

Justice Black: Your argument, as I understand it, is 

a man has a right to expect that a merchant should have known 

this law was unconstitutional and it would not be enforced by 

the city.

Mr. Breckenridge: I think you have got to go further than 

that, Your Honor, and show that the merchant intended —  that 

the merchant did not enforce his segregation ordinance because 

—  not because we —  we have quite a few rugged individualists.

Justice Black: Have any of them not enforced it?

Mr. Breckenridge: Ho, sir. Excuse me. I got the words 

wrong. Have any of them integrated the counters, no. I am 

sure, though, it is for an economic reason. Now, the Dobbs 

House has been integrated. That is under injunction. That 

has been integrated and, of course, the economic results there 

show the reason. It isn't enforced, the ordinance. It is the 

economic result of the enforcement. The effect on private 

property.

Justice Black: You are arguing before us the merchant as 

I understand it had reason to think that the law was invalid 

and would not be enforced. How could they, how could the 

statement have been made in every one of the states that the



action of this Court was unconstitutional by leading people in 

the South?

Mr. Breckenridge: The action of this Court in this type 

of case —

Justice Black: Brown vs. Board of Education.

Mr. Breckenridge: Your Honor, in other words, I construe 

that statement to mean that there were quite a few people in the 

South that did not concur in the reasoning or conclusions of 

the cases. I do not think that —

Justice Stewart: The understatement of the week.

Mr. Breckenridge: I do not think that anyone will dispute 

the authority of this Court, and I have not heard anyone dispute 

the authority of this Court, and I have heard them disagree with 

it, but I —  and it cannot be disputed if we expect to live 

under law.

Justice Black: You haven't heard it disputed?

Mr. Breckenridge: I said the authority, the right of this 

Court to render the decisions that it has rendered. They have 

disagreed with it and said they ought not to have done it, but 

as I see it, I mean, some people have, but as I see it, once 

this Court renders its decision, that is its authority. There 

isn't any other answer to that'if we are going to end up under 

a system of law, and I say this, in the enforcement of the 

Fourteenth Amendment, it has got to be •—  it should be enforced 

not according to cases but under general principles where we will



451

know where the dividing line is and not end up with a govern­

ment —  in other words, there has been a transition. The law 

was one thing here when I went to law school and when Mr. Justice 

Black, when you were practicing law in Birmingham. It is another 

thing now.

It is what it is now because of decisions of this Court.

It was what it was then because of decisions of the Court.

Now, there has been a change. Now, that change isn't like 

slipping a leaf. It takes time to go through. You say that —  

and I don't want to get on these cases on the general segregation 

issues because I don't think it is necessary, but I do say this, 

and I do earnest?i.y entreat this Court, that this deals with 

private property and owners of a private business ought to have

the right to serve who they want regardless of reason. That is
l

part of the American system.

And that issue should not be overturned. And it was not 

overturned in Kraemer. There have been numerous cases in 

which statements have been made by Circuit Courts of Appeal on 

this, and I think Kraemer recognized it, and Marsh vs. Alabama 

i3 absolutely not appropriate to this case. The Solicitor 

General brought it out. But that Involved the streets of a 

company town, in a company town here, and the streets were being 

used as the Court said for the same reasons and the same purposes 

that a public property public street was used.

Therefore, being used for the same thing,it lost some of its



qualities in private property. But when you open a store, that 

is not public property. The State of Alabama and the City of 

Birmingham not only can't but they have no authority to operate 

a store like that under the Constitution. It is different from 

Marsh. Marsh didn't pass on property'being used for the same 

purpose of private people.

Marsh was talking about passing leaflets on a company street 

a street that was used for the same thing a town uses its streets

Justice Goldberg: Bid I understand you a little earlier 

to say that you recognize the defendant here would have a right 

to introduce evidence that the store policies were based on the 

compulsion of law?

Mr. Breckenridge: I believe that is a little broader, Mr. 

Goldberg, than what I said. I think they would have a right to 

introduce evidence which showed that the request to leave was

not given voluntarily. I believe that was —

Justice Goldberg: Based upon law?

Mr. Breckenridge: Well, if it could be construed —

Justice Goldberg: That is the purport --

M r . Bre ckenr idge: If it can be construed —  in other words,

the request to leave should be voluntary and not state —

Justice Goldberg: Compelled.

Mr. Breckenridge: —  compelled. You are right.

Justice Goldberg: In the Parker case —

Mr. Breckenridge: And the state may have —  excuse me



Justice Goldberg: I was going to say in the Parker case 

as I read the record here, one of these cases, there was an 

atterapt made by counsel to develop this point, but as I read it, 

the judge denied him that request. Am I correct in that?

Mr. Breckenrldge: I d o n rt remember. I remember the question 

of attempting to bring out the ordinance and the ordinance —

Justice Goldberg: Yes.

Mr. Breckenrldge: And Mr. Pisitz saying, I have heard of 

the ordinance. He said that. And then that was in the record, 

and then counsel for the defendants withdrew the question, but 

they left the answer in. The answer was still in the record 

there. "That I have heard of the ordinance."

Justice Goldberg: Didn't he really develop the point and 

then the Court said in effect "It is not competent"? 168 of 

the record.

Mr. Breckenrldge: The Court said that the policy of 

Pizitz, I think said in effect that the policy of Pizitz was 

not relevant. I believe that was the point.

Justice Goldberg: Rather it was based upon law or not.

Mr. Breckenrldge: Or not. In other words, even though 

they had a law, if Pizitz said they didn't want to serve Negroes, 

they could do so even though they had the lav' And I think

that —

Justice Black: Did I understand you to s a y  the judge said that

Mr. Breckenrldge: The effect of it was —  no. The judge



rb-53 454

didn't say that. The judge didn't even go into the question of 

law* but I would say this, even though there was a law which was 

in effect, the private property owner ought not to be deprived 

of his right to select his customers, and a private property 

owner may say, well, even if they didn't have the law, I would 

still want to select my customers because if the law is going —

Justice Black: That would be subject to proof, would it not, 

on your assumption?

Mr. Breckenridge: I think it ’would be for the defense to 

bring out, and I don't think they could ask to bring out the 

mental operation of the man but I think it would be necessary 

to find out what force and effect the law had on his decision, 

if any.

The Chief Justice: How would you do that without prying 

into the mental effects of the order?

Mr. Breckenridge: As I said before, I believe you would ask 

if there had been any conversations with city officials relative 

to the serving of Negroes at that counter. At least the District 

Court has let things like that go in.

The Chief Justice: Suppose they didn’t have any conversa­

tions but knew about the ordinance? The man could answer it if 

he had been asked, did you do it because you were afraid you 

would be arrested if you didn't do it?

Mr. Breckenridge: I think then sometimes there are excep­

tions to that rule. I think if the defendants had asked such



a question and offered a showing., if it was overruled, that 

then that issue would be straight up to this Court, and, of 

course the main thing is that the Appellate Court did not have 

the issue before it because they did not comply with state 

appellate procedure in arguing the assignments of error before 

the Appellate Court in connection with the constitutional 

question.

Justice Harlan: I was going to aslc you two questions 

specifically. I wonder whether you would comment on the 

Solicitor General's suggestion that even under your appellate 

practice —

Mr. Breckenridge: Presumption?

Justice Black: No, no.

Mr. Breckenridge: Excuse me.

Justice Black: This question was preserved under the 

general equal protection argument.

Mr. Breckenridge: I am inclined to think that that is 

limited to capital cases. I'm sorry, I am not in a position to 

bring it out, but I am inclined to think it is not limited —  

it is limited to capital cases, that the question as to whether 

or not the state court would look beyond the record, beyond the 

record —

Justice Harlan: That isn't the point. The Solicitor General 

says that as far as —  assume for the moment, to be specific, 

assume for the moment that the record of the trial judge



rb-55 456
erroneously excluded questions as to the ordinance. Assume 

that. I am not saying that is so hut let us assume that. My 

question is whether or not under your practice the Supreme 

Court could consider that alleged error.

Mr. Breckenridge: Certainly, if properly raised.

Justice Black: What is that? Well, properly raised —

Mr. Breckenridge: I don't think so in these cases because 

it is necessary to assign error and argue error separately In the 

Supreme Court. I am sorry we don't have the briefs here. You 

asked about that yesterday. If the Court wishes, I will be glad 

to mail to the clerk a copy of the briefs in the State Appellate 

Court.

The Chief Justice: Will you do that, please.

Mr. Breckenridge: I will be glad to do it. In the 

Appellate Court.

Justice Black: Have you discussed the Terminiello case 

on that point?

Mr. Breckenridge: Terminiello. I don't believe we have,

sir.

Now, the Fourteenth Amendment —  one other thing —  does 

not get rid of all state action which as a result will enforce 

Segregation. The Girard case which came up from Pennsylvania,

I believe, to this Court, and then they held that there were 

state officials on the Board and that they could not administer 

a will in such a way as to admit only white orphans. The



rJ>~56

457

Court reversed it. The state courts then in Pennsylvania,

I believe it was, removed as trustees the state officials and 

replaced them by private people, individuals, and I believe 

they sought certiorari before this Court and that was allowed 

to stand.

The Chief Justice: Have we completed all the arguments? 

Mr. Clerk: Ue have.

(Whereupon, at 2-.00 o'clock p.m., the Argument 

was concluded and the Court adjourned.)