Avent v. North Carolina Oral Arguments 1

    In The
SUPREME COURT OF THE UNITED STATES

OCTOBER 'TERM, 1962

JOHN THOMAS AVENT, ET AL.,

Petitioners

v s .

STATE OF NORTH CAROLINA,

Respondent

Washington, D. C.
November p, lyo

No. 11, ET AL

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

628
4266
4267
4268
4269



rb-A A

C O N T E N T S  Page

ARGUMENT ON BEHALF OF RESPONDENT STATE OF 
LOUISIANA
By Jack P. F* Gremillion, Esq.,
Attorney General 12|.8

REBUTTAL ARGUMENT ON BEHALF OF RUDOLPH LOMBARD,
El AL., PETITIONERS 
By John P„ Nelson J r ., Esq.

ARGUMENT ON BEHALF OF JAMES GQBER, ET AL.,
PETITIONERS,
By Mes„ Constance Baker Motley 201

ARGUMENT ON BEHALF OF RESPONDENT CITY OF 
BIRMINGHAM
By Watts E. Davis, Esq. 215

(AFTER RECESS —- p. 235)

ARGUMENT ON BEHALF OF RESPONDENT CITY OF 
BIRMINGHAM
By Watts E. Davis, Esq. —Continued-- 235

REBUTTAL ARGUMENT ON BEHALF OF . JAMES GOBER,
ET AL., PETITIONERS,
By Mrs. Constance Baker* Motley 257

ARGUMENT ON BEHALF OF F. L. SHUTTLESWORTH, ET AL., 
PETITIONERS,
By Mrs. Constance Baker Motley 266

ARGUMENT ON BEHALF OF CITY OF BIRMINGHAM,
RESPONDENT,
By Watts E. Davis, Esq., 278

ARGUMENT ON BEHALF OF JAMES RICHARD PETERSON,
ET AL., PETITIONERS,
By Matthew J. Perry 294

ARGUMENT ON BEHALF OF CITY OF GREENVILLE,
RESPONDENT,
By Mr. Snyder 307



Doran #1 

rb-1 IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1952

JOHN THOMAS A VENT, ST AL.

Petitioners

v sv

STATE OF NORTH CAROLINA,

Respondent

WILLIAM L* GRIFFIN, ET AL,,

Petitioners

v s .

STATE OF MARYLAND,

Respondent

RUDOLPH LOMBARD, ST AL*,

Petitioners

vs .

STATE OF LOUISIANA,

Respondent

JAMES G033ER, ET AL,,

Pet i t  loners

vs.

CITY OF BIRMINGHAM,
Respondent.

No. 11

No. 26

No o 58

No* 66



1*1-6

P. L. SHUTTLES!?*ORTH, El AL., :

vs„

CITY OP BIRMINGHAM,

P etitioners,

No* 67

Res pondent

JAMES RICHARD PETERSON, ET AL.,

P etitioners,

V 3 .

CITY OP GREENVILLE,

No. 71

Respondent

NATHANIEL WRIGHT, ET AL.,

P etition ers,

vs.

STATE OP GEORGIA,

Respondent

No. 68

■x

Washington, D. C.

Tuesday, November 6, 1962
Oral argument in the above-entitled matters was resumed at

10:10  a.m



PRESENT:

The Chief Ju stice , Earl Warren, and Associate 

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

White and Goldberg*

APPEARANCES:

On behalf of Rudolph Lombard, et Gl*, petitioners

John P. Nelson, J r ., Esq.

On behalf of Respondent State of Louisiana:

Jack P. F. Gremillion, Esq.,
Attorney General

On behalf of James Gober, et a l . ,  p etitioners: 

Mrs * Constance Baker Motley.

On behalf of Respondent, City of Birmingham: 

Watts E. Davis, Esq.

On behalf of F. L. Shuttiesworth, et a l . ,  
p etition ers:

Mrs. Constance Baker Motley 

On behalf of Respondent City of Birmingham: 

Watts E. Davis, Esq.

On behalf of James Richard Peterson, e t a l . ,  
p etitio n ers:

Matthew J. Perry, Esq.,

On behalf of Respondent City uf Greenville:

Theodore A. Snyder, J r ., Esq.



148

P £  £  £  E E D I N G S

The Chief Ju stice i Wo. 58, Rudolph Lombard, et s i . , 

p etition ers, vs. S tate of Louisiana.

Mr, Nelson, you had reserved the rest of your time.

Mr. Nelson: Yes, s ir .

The Chief Justice: Mr. Gremillion..

ARGUMENT ON BEHALF OF RESPONDENT STATE OF LOUISIANA 

BY JACK P. F. GREMILLION, ESQ.

ATTORNEY GENERAL

Mr. Gremillion: Thank you, Mr. Chief Justice and 

Associate Justices of the Court.

I , in Louisiana, am in  a unique position here today because, 

frankly, we have no quarrel with the law as i t  presently e x is t s ,  

at least in our opinion, in th is matter.

I think that th is case of Lombard here is  one that can 

largely resolve the decision on what the facts actually  are, 

and they are so important that I would like to  take a minute or 

two to go through the facts of th is  case, and then we can discuss 

the appropriate lega l points.

Now, the facts surrounding th is  case was the basis of a 

criminal mischief charge brought against the defendants by the 

State of Louisiana.
Between ten and eleven o'clock, on the morning of September 

17th, i 960, two Negro men and a Negro woman and a white man 

took seats at a 24-stool lunch counter reserved for white



customers in McCrory's Five and Ten Cent Store on Canal Street 

In New Orleans,

Now, McCrory's is  one of a national chain operating in 

3M- s ta te s . It s e l l s  a l l  kinds of merchandise, i t  is  open to  

the public and, of course, the statements I am making here are 

a l l  borne out by the record because I  am following my brief.

ihe question of whether the lunch counter f a c i l i t ie s  in 

various McCrory's stores are segregated or integrated is  le f t  

oo the national o ffic e  of the McCrory's Stores, to  be determined 

by local trad ition , law, and custom, as interpreted by the 

manager of each individual store.

ihat is  in the transcript of the record at page 21

Of course, as has been pointed out by Mr. Nelson, Louisiana

has no law requiring segregation of eating f a c i l i t ie s  in the 

S tate.

It never has had. Neither does the City of New Orleans..

Nor do I know of any c ity  or municipality that has such an 

ordinance in the sta te . In fa c t, there is  none.

In the McCrory's store in which these defendants staged th eir  

s i t - in  demonstration had separate food counters for serving food 

to Negro and white customers since 1938 and, as I said before,

there is  no law or ordinance requiring segregation of these eating  
places,

And by operating separate luncheon counters for whites and 

Negroes, McCrory's was simply following a loca l custom as Inter-



150

preted by that store manager, Mr. Barrett.

An employee of the lunch counter, at which the defendants 

sat down, called  the restaurant manager who informed these four 

students, both white and Negro, that he could not serve them at 

that counter and that he had to  s e l l  them eating materials at 

the rear of the store where he had a colored counter.

Now, when the manager received no answer at a l l  from these 

individuals — th is  is  the restaurant manager — he turned off  

the l ig h ts . He removed the unoccupied stools and he closed the 

lunch counter.

A sign reading "This counter is  closed" was pointed out 

to  the students but they remained s i le n t .

The restaurant manager then called the store manager and 

the p o lice.

And the police — i t  is  s ign ifican t that the police were 

never present at any time.

The Manager, Mr. Barrett, came behind the counter, and he 

talked to the individuals and he asked them to leave. The 

police s t i l l  were not in the establishment but they neither 

answered him nor did they move. They continued to s i t  there.

When the police arrived the store manager advised the 

students, in the presence of the police and prior to talking  

to the p o lice , that the counter at which they were seated was 

closed and that he asked them to leave the store.

Nothing happened



151

Justice Black; I did not quite get that.

How did the police get there? Were they called?

Mr, Gremillion: Yes, the restaurant manager n otified  the 
store manager and then called the police,

Up to that time the police were not involved in th is factual 

situ ation  ac a l l ,  and wnen the police arrived the store manager 

talked to  the four individuals, and he told  them that the counter 

at which they were s it t in g  was closed, and he asked them to  leave 

the store and, as I sa id , nothing happened.

Thereupon, —

Justice Stewart: Was that done in the presence of the 

police ?

Iir, Grenullion: Yes, And the manager told these individuals 

that he wanted them out of the store and he asked the police to  

take them out of the store because i t  was his custom not to  

serve them,the custom as interpreted by him.

It was his custom not to  serve them at that particular 

counter. Then the police o fficers told them, "The manager 

wants you out; you are violating Louisiana law."

And th at, of course, is  in the record.

Justice Stewart: He did not id en tify  what law they were 

v io la tin g , did he?

Mr. Gremillion: No, he just sa id , "You are v io lating  State 

law" and he asked them to leave.

He asked which one was the leader and the white student said,



152
"I am the leader” and th a t's  the only words that were ever 

spoken by these four people.

He id entified  himself as the leader and he said that they 

had come there for a particular purpose and that their mission 

was to be served, and i f  they were not served they were w illin g  

to  be arrested.

So Major — I forget his name right now, but he is  with the 

police —

Justice Stewart: What law were they v io la ting  right at 

that moment by saying they were staying there to be served?

Mr. Gremillion: They were v io la tin g  the criminal mischief 

statu te  of the State of Louisiana, which reads as fo llow s, and 

th is  is  the basis of the charge.

* taking temporary possession of any part or 

parts of a place of business, or remaining in a place of 

business a fter  the person in charge of said business or 

portion of such business has ordered such person to  leave 

the premises and to  d esist from the temporary possession  

of any part or parts of such business."

Justice Stewart: So while th is is  what you prefer to c a ll  

a criminal mischief statu te that part, at le a s t , is  very sim ilar 

to the trespass statute that vie have had in  sim ilar cases?

Mr. Gremillion: Well, you might say that but i t  was a 

statu te that was passed by the i 960 session  of the Legislature 

and was designed to protect the rights of the private individual



rb~9

# 2

153
on his property from the invasion by anyone, regardless of race 

or creed or color.

Now, counsel, and I might go into th is  right now, has 

attempted to t e l l  you that there was a great segregation program 

passed by the State of Louisiana at that session  of the Legis­

lature .

Well, i t  may be that there were a lo t  of laws passed that 

were subsequently declared unconstitutional in l it ig a t io n  in the 

Eastern D istr ic t and subsequently in the Circuit Court of Appeals. 

But these particular criminal statutes were passed as a resu lt  

of the D istr ic t Attorneys* conferences, and I might t e l l  the 

Court that as Attorney General I have inaugurated conferences 

for D istr ic t Attorneys in my S tate, which is  required in  some 

s ta te s , and we meet every year in February of the year and we 

discuss the decisions of th is  Court as they a ffec t our laws.

We discuss the decisions of our Supreme Court as they 

a ffect our criminal sta tu te s , and we are always amending our 

criminal code to  provide for situations that were never covered 

by law before.

So there is  no sign ificance to  be attached to  such a fact 

lik e  that.

As a resu lt of working with the Louisiana Law In stitu te  

our Code of Criminal Procedure was completely overhauled at the 

same session  of the Legislature.

So I don't think anyone can say that that was a result of



trying to  maintain segregation in my S tate.

Some of the laws we amended we had quite a t i t  of l i t ig a ­

tion  involving our registrars and voters. We woke up and found 

out that no one had ever provided an Attorney for the Registrar 

voters because u n til recent years the o ffice  was re la tiv e ly  

unimportant, and they passed a law at that session  making the 

Attorney General the attorney for the Registrar voters, ju3t  

giving me a l i t t l e  more work to do.

Ana I rec ite  that to  you because there is  nothing in any 

of these statutes that we passed which were drawn up upon recom­

mendations ox the D istr ic t Attorneys, and th is Act was drawn in 

my o ffic e . So I know why i t  was put in there.

We never had a statute before because we never had s itu a ­

tions that existed lik e th is  before.

We never had statutes on our books that could punish someone
\

for coming in and taking possession of that property much lik e  

someone can walk into your home and say, "I am in your home,1' 

and you could say, "I don't want you in my home; get out."

You certain ly  would have the right to in v ite  him out i f  he

refused to  go out. You would certain ly  have the right to  c a ll

the police in that case, because he has no right tc  be in  your

home, no vested righ t, and th is is  why we passed th is  particular 

sta tu te .

Justice Harlant What does th is  statute accomplish that is  

not already embraced in your general trespass statute?



155
Mr*. Gremillion: Mr* Justice Harlan, cur general trespass 

statute., as I r e c a ll, re la tes mostly to farming and enclosed 

lands<

The general trespass statu te of our state would not cover 

the factual situ ation  that occurred here.

Justice Harlan: Can you give me the citation?

Mr. Gremillion: Unfortunately, I do not have i t  here.

I did not think i t  was a portion of th is  case, hut I w ill  

be very glad to  provide that to the Clerk for you.

Justice Brennan: Bo you remember, Mr. Attorney General, 

what the penalties are under the general trespass statute?

Mr. Gremillion: No, but they are the same, approximately, 

They are misdemeanors. They provide for a fin e o f, oh, I 

believe one year in j a i l  or up to $1,000, at the d iscretion  

of the court, a l l  depending upon the facts of the case.

The Chief Justice: Has your Supreme Court held that 

your general trespass statute did not apply to  businesses like  

th is  ?

Mr. Gremillion: Well, i t  was, no they never had held that 

but i t  was always the contention of the D istr ic t Attorneys and 

others that the general trespass statute would not apply to  

a situ ation  where individuals come into a place of business, 

3ueh as happened here, and take possession of i t  because the 

general trespass statute did not cover such a situation  and 

that is  why we passed th is  sta tu te .



We wanted to  sp e ll i t  out*

Juscice Douglas; Has i t  been applied to any group except­

ing Negroes?

Mr. Grerailllon: Well, —

Justice Douglas; Does i t  apply to  Jews?

Mr. Gremillion: I can't say — i t  has been used in several 

court prosecutions in the sta te . How many, Ido not know.

But we published a booklet on the number of times i t  has 

been used. It has been used about 40 or 50 times since i t s  

passage and indiscrim inately, both white and colored. I mean, 

regardless of race or color.

There has been no d istin ction , Your Honor, is  what I am 

trying to  point out to  you.

Justice Douglas; Doe3 i t  apply to Americans of Mexican 

ancestry?

Mr. Gremillion; Well, I am sure that It would apply to  

them i f  one had committed the particular crime, but our State 

Supreme Court, Your Honor, went into that very carefu lly  in i t s  

decision when it  discussed the con stitu tion a lity  of i t s  statu te  

and i t s  application and, of course, I don’t  want to burden th is  

court by reading chat to you, but i t  Is in the record*

Justice Douglas: Yes*

Mr. Gremillion; What is  that?

Justice Douglas; Yes, I am aware of the opinion,

Mr. Gremillion: You are aware of it?



157
Justice Douglas: Yes.

Mr. Gremillion: I just wanted to save time so that we can 

ta lk  about something that we a l l  know about.

Justice Goldberg: You made several references, General, 

to  people coming in and taking possession but surely there is  a 

difference here.

These people were invited into the store , were they not?

Mr. Gremillion: Well, that is  true, but a fter they were 

invited in , as customers, and went to th is  particular place of 

business the store manager walks up and says, "I cannot serve 

you; I am asking you to leave our prem ises.”

Justice Stewart: Did he say "I cannot" or "I w il l  not”?

Mr. Gremillion: Well, I don't think i t  would make any 

difference i f  he said —

Justice Stewart: It might make a great deal of d ifference. 

It is  a matter of semantics but i t  might be important.

If he said "I cannot" i t  might mean that he was being 

coerced.

Mr. Gremillion: There is  no evidence, absolutely no e v i­

dence of coercion in th is  record whatsoever.

Justice Goldberg: General, what about the statements made 

by the Mayor and the Chief of Police?

Mr. Gremillion: I would be very glad to  discuss that.

Now, you must bear in mind that these s i t - in  demonstrations 

occurred just about the time we were having s i t - in  demonstrations



158
a l l  over the South and feelin gs were waxing high.

We had a s i t - in  demonstration at Woolworths which caused 

the Superintendent of the Police to  issue that particular s ta te ­

ment. That was on a Friday,

On the next Saturday we had a picketing fiasco  at another
A-

store in the French quarter in New Orleans, It turned out not 

to  be any peaceful picketing at a l l  and the police were not there, 

of course.

Arid the pickets were running the pedestrians o ff the street  

and making them run out into the narrow streets  of the French 

quarter, and there was a tremendous excitement prevailing which 

could have blown up at any minute and we could have had race 

r io t s ,

That was at that — and, incidenta lly , those individuals 

have been charged with obstructing a public passageway and making 

pedestrians get o ff , and that case was tried  and they were con­

victed in  the lower court and i t  is  now in the Supreme Court 

of Louisiana.

And I imagine you w ill  be having i t  up here sooner or la ter . 

But anyway, —

Justice Douglas: Mr. Attorney General, the more you ta lk  

the more i t  sounds to  me lik e  th is  may be possibly a Yick No 

case.

Mr. Gremillion: A what?

Justice Douglas: A Yick Wo. You remember the Yick Wo case?



r~i .5

159

Mr. Gremillion: I don't think no.

Justice Douglas: That is  where i t  is  a lav; that is  used 

against a race., one group. I t has the label "Negro" on i t .  

That had the label "Chinese" on i t .  That is  the Yick VJo

case.

Mr* Greiaillicn: I don't think that these laws were used 

indisoriginately  against Negroes in th is particular case. I do 

n ot.

And I don't think there is  any proof in th is  record that 

would Indicate that.

Justice Douglas: I was just listen in g  to what you vrore 

saying.

Mr. Grerailllcn: Yes. Your Honor. New, we were talking  

about the Mayor's statement,

Justice Goldberg: No were talking about the Mayor's s ta te ­

ment .

Mr. Grcmillion: So then Mayor Morrison issued his statement. 

Now, I have read those statements very carefu lly .

I have read them again th is  morning and Mayor Morrison 

refers t c ,  or, when Mayor Morrison refers to  so-called  "peace­

fu l picketing" v.’hat he meant was something that was attempted 

to  be conducted under the guise of law which could possibly  

obstruct the peace and harmony of the community.

And that Is why those statements were Issued. They were 

issued purely as a m in isteria l function of the Mayor and his



ch ief law enforcement o fficer .

It is s ign ifican t to  note that the Mayor at no time said he 

was sending police to  these department stores. At no time did 

he say that he was going to take the lavj into h is own hands.

Reading th ese, you can only come to  the conclusion that here 

was the Mayor of a great city., a great Mayor, a distinguished  

Mayor, who was doing h is job under the Constitution of his 

State and the Constitution of the United S ta tes, to  maintain peace 

and order.

Now, Mr. Ju stices, le t  me ask you th is , and th is  is  one of 

the dilemmas that Louisiana faces.

When we, in cases of th is kind, c a ll  upon our p o lice , which 

we certain ly  have the right to do a fter an occurrence has happened 

such as th is ,  i f  we f a i l  to  maintain the peace and tranquility  

of our community by the use of our own p o lice , which is  paid to  

do th at, i f  we f a i l  to  do that we are castigated before the eyes 

of the Nation in  the press.

And the f ir s t  thing you know we have got marshals and, in 

some cases, troops.

Then i f  we donft  take care of our people, i f  we donrt use 

our police to  maintain lav; and order in  a community, they come 

before th is great tribunal claiming that th eir  rights have been 

violated  as a result of certain sections of the due process 

clause of the Constitution.

Now, what are we going to do? The only thing that we can do



is  exactly what transpired in th is  case*

I say to  th is  Court that Mayor Morrison is  a man of modera­

tion  and so is  Chief Giarrusso.

He made an outstanding Mayor and he acted without d is ­

crimination whatsoever in th is case. He had just run for 

Governor and had gotten a l l  of the Negro votes.

Certainly, he wasn't going to turn around and repudiate 

them. And, furthermore, I say to th is  Court that the President 

of the United States would never have appointed Mayor Morrison 

as ambassador to the Organization of American States i f  he had, 

in any way, discriminated against anybody in the City of New 

Orleans.

So I attach no sign ificance whatsoever to  that. It is  

certain ly  not a part of the res gestae of th is  case.

It was not a d irective to any store owner that they get 

together. It was not a d irective to  any store owner that they 

get together to c a ll  the police.

Nothing was mentioned about that.

Justice Goldberg: General, le t  me interrupt at that point.

Does th is  record not pretty p lain ly  indicate that the 

store owners did get together prior to the particular demonstra­

tion  which is  here involved?

Mr. Grerailiion; Mr. Ju stice, my answer to  that is  that i t  

wouldn't have made any difference i f  they had gotten together and 

discussed It because i t  doesn't constitute state action because



rb-18 162
private c itizen s and owners of private property can get together

and discuss their problems; no more than they would get together 

and discuss th eir  income tax problems.

I f  they discussed their Federal income taxes would you say 

that would be Federal action , because they a l l  pay Federal income 

taxes?

Justice Douglas: What i f  they had gotten together with the 

police ?

Mr. Gremillion: But they didn't get together with the
f

p olice. They didn’t  get together with the p o lice , and there is  

no evidence to prove that they did.

Justice Douglas: Were not the defendants foreclosed by the 

t r ia l  court from offering that evidence?

Mr. Gremillion: Yes, because of the fact that i t  was 

absolutely irrelevant to  the prosecution of the crime, and even 

i f  they had proven that, even i f  these people had discussed such 

a situ ation  with the police i t  would s t i l l  be immaterial because 

a l l  they were talking about was the question of what their  

property rights are.

I repeat —

Justice Harlan: We do not know what they were talking  

about.

That is  what was excluded.

Mr* Gremillion: But, Mr. Justice Harlan, I say to  you that 

even i f  they had shown that there would have been discussions i t



r'c-19

163
would s t i l l  have been immaterial because —

Justice Harlan: Supposing i t  had been shown that in a 

conference with the representatives of the City Police Depa3?t- 

ment these particular store owners said they would be glad to  

have Negroes on their premises, and the police sa id , "No, you 

had better support the policy" of whatever i t  was "in keeping 

these Negroes out," and they said , "All right."

Would that be relevant?

Mr. Gremillion: If such a thing was possible to have been 

proven I am sure that i t  would have been allowed, but he —

Justice Harlan: Is that not —

Mr. Gremillion: Wait just minute, but these people were 

defended by competent counsel.

He had Chief Giarrusso on the stand. He had Morrison on the 

stand. But he only called them as witnesses on the motion to  

quash. He didnft  c a ll  them on the t r ia l  of th is  case.

He had that right. He had that opportunity to  proffer that 

and did not avail himself of i t  and, therefore, I say that he 

fa iled  to  do that, i f  i t  existed .

Now, i f  th is Court wants to  remand the case for the taking 

of that evidence, I so move.

Justice Goldberg: Well, General, would you have said , as 

a very experienced lawyer, which you are, and a very able one, 

that in ligh t of the rulings of the t r ia l  court in th is case

where such evidence was offered, any purpose would have been



served by a counsel further pursuing i t ;  that the t r ia l  court 

wade i t  clear., and I refer to page S& of the Record, that he 

uould not admit evidence on the question of what was discussed  

with the police?

Mr. Gremillion: Well, I say —

Justice Goldberg: And did not Mr. Nelson object, General, 

and reserve his objection on that point?

Mr. Gremillion: And the court went into that very thoroughly. 

He said i t  was absolutely immaterial.

At no time did he offer any proof of consortium or collusion  

or cooperation to  deny anybody anything.

You can look at Mr. Nelson's objections and he never called  

that to  the court's attention.

Justice Goldberg: Well, look at page 91' again, i f  you w il l .

Mr. Gremillion: Yes.

Justice Goldberg: Does he not c a ll  that to  the court's 

attention  when he says that his purpose in offering th is evidence 

is  to  show a sta te policy here?

Mr. Gremillion: But i t  has been held in the Howard Johnson 

câ »e that regardless of what the sta te  policy is  that that doesn't 

come within the scope of sta te  action under the Fourteenth 

Amendment.

Our Supreme Court went into that very thoroughly.

Justice Goldberg: Are you arguing that i f  the sta te  here 

directed the store owner not to  admit Negroes i t  would not have



rb -21

165
been sta te  action?

Mr. Gremillion: Mr. Justice Goldberg, I say th is ,  that i f  ~~ 

oh, yes, I v;ould agree with you on th at, very d e fin ite ly .

I would also say th is , that i f  the manager had gotten  

together with a l l  of the managers and they had decided that they 

were going to  segregate th eir  counters and then he turned around 

and changed his mind and called the police or someone sued him, 

rather, as a resu lt of h is breaking the agreement, that that would, 

of course, be sta te  action.

Likewise, i f  he had decided or said he was a great advocate 

of c iv i l  rights and in his own mind, h is interpretation of what 

the custom was, he had decided that he was going to  serve every­

body indiscrim inately, and a group of ira te  c itizen s called  the 

police and went over there and had the police arrest them, under 

that that would be sta te  action but that is  not what happened 

here.

What happened here is  that you had a bunch of people who 

moved in deliberately with design, sat down, and sa id , "I want- 

service ."

The manager said , "I am not going to serve you.” The police  

had never been called . The police had never been contacted.

The police gave them ample opportunity to  leave and reluc­

tantly  arrested them after they had been at that counter some 

twenty or twenty-five minutes. So —

The Chief Justice: Mr. Attorney General, suppose Mr. Nelson



wanted to  conduct his cross-examination and direct i t  to  th is  

language of the Mayor in his public statement;

S,I have today directed the Superintendent of Police 

that no additional s i t - in  demonstrations or so-called  peace­

fu l picketing outside r e ta il  stores by s i t - in  demonstrators 

or their sympathizers w ill be permitted."

And then, jumping over to  the end of i t :

"It is  my determination that the community in terest, 

the public sa fety , and the economic welfare of th is c ity  

require that such demonstrations cease and that henceforth 

they be prohibited by the police department."

Mr. Gremil1Ion: Yes.

The Chief Justice: Now, would you discuss whether that 

represents sta te  action inasmuch as the Mayor is  the ch ief 

o fficer  of the c ity  and the Superintendent Is sworn to  uphold 

the —

Mr. Gremillion: N ell, my answer to  that would be th is ,

Your Honor; Again, we are speaking about a custom. Again —

The Chief Justice: Where does he say so?

Mr. Gremillion: N ell, that is  what he is  talking about,

In e f fe c t . He is  talking about the policy —

The Chief Justice: Where does he say that?

Mr. Gremillion: I am looking at i t ,  Mr. Chief Ju stice , from 

the standpoint of what Mayor Morrison meant by that.

The Chief Justice: A ll right. Well now, why not apply the



rb-23
167

language that he used in there to  indicate that?

What did he say in there to  estab lish  your position?

Mr. Gremillion: But I come back to th is :  he did not c a ll  

the Mayor on the t r ia l  of th is case and ask him a single thing 

about that.

These s it - in s  happened after the statement of the Mayor.

So apparently i t  had no e ffe c t .

He never discussed with Mr. Barrett, during the t r ia l  of 

th is  case, whether Mr. Barrett ever knew about the existence of 

those particular statements.

And I don't —

The Chief Justice: He could not go into that, could he?

Mr. Gremillion: And I don't think that that constitutes  

sta te  action, bedause I think that a l l  that the Mayor was trying  

to  do was to maintain peace and order, and i t  is  a fact that these 

s i t - in s  occurred, as Mr. Nelson said , very q u ietly , without any 

passion whatsoever, and, of course, the State Police was not 

there to  stop them as a resu lt of th is statement by the Mayor.

A statement by the Mayor to me, as w ell as the Chief of 

P olice, is  s tr ic t ly  one of maintaining peaceful situations in 

the City of New Orleans.

It is  to be noted in h is statement that he didn't say any­

thing about peaceful picketing. He is  talking about so-ca lled  

peaceful picketing.

Justice Black: Well, I suppose you would agree, General,



rb-24
168

# 4

would you not, that even If 

books, or i f  the law was not
they did not have any lav; on the 

in lorce, custom Is common practice
and that would be the same as though i t  were written on the
books ?

Mr. Gremillion: Oh, no, I donrt agree on that.

Justice Black: We have had numerous cases of that kind. 

Mr. Gremillion: I donft agree with that.

Justice Black: Not particularly th is  year, a l l  of them, 

bur we had a case where there was a question of the denial of 

equal protection of the law which came up on taxes.

The books said one thing but the practice was another, and 

we said that the practice was there even though i t  was not 

written on the books, and we decided the case according to 

v/hat actually  happened, as in the Yick Wo case that Justice  

Douglas has called  to  your attention.

It does not make any difference about what law is  written  
on the books.

If the sta te  o ff ic ia ls  believe i t  was there I would think 

that you would go that far because I think your defense is  the 

one which you mentioned f ir s t  but have not mentioned much since 

that you have what I s , in e f fe c t , a trespass act or warning or 

a trespass when a man has been warned to  get out.

Mr. Gremillion: That Is correct.

Justice Black: That Is what you have.

Mr. Gremillion: That is  correct.



rb-25
169

Justice Black: Nov;, i f  you have that, but even i f  that 

law was used constantly and continuously by individuals for the 

purpose of prohibiting something which the sta te  cannot pro­

h ib it , to  w it, and I suppose you would agree that the sta te  

could not pass a law which made i t  i l le g a l for a merchant to  

serve a colored man —

Mr. Gremillion: I agree with that and that is  why we don't 

have such a statute in our S tate.

Justice Black: I thought you would. That being the 

case, i f  you have such a law in actual practice, although i t  is  

not w ritten on the books and that law which is  in actual practice 

among your? o ff ic ia ls  were u tiliz ed  here, how could you escape 

the fact that that was sta te  action?

Mr. Gremillion: Because I think that the cases show that 

the mere u tiliz a tio n  of the courts is  not su ffic ien t state  

action as covers the due process clause of the Fourteenth Amend­

ment „

Justice Black: Well, one could agree with you wholly on

that >

Mr. Gremillion: But the question we have here to  f in a lly  

determine is  the one that you are talking about:

Does th is rea lly  constitute sta te  action?

Now, what happened in th is particular instance —

Justice Black: If they can prove that the Mayor of a c ity ,  

and he has a good deal of power whether the statute says i t  or



not, goes to  them and says, "Now, we want th is stopped, these 

s it - in s " , and they say "We do not care whether you want it  

stopped or not" —

Mr. Gremillion: But he is  talking about unlawful s i t - in s .

Justice Black: I know, and he is  going to say that "we are 

going to have the police ready; you c a ll  them/' —

Mr. Gremillion; I agree with that.

Justice Black: Why then should not the man be allowed to 

introduce evidence to try to prove that?

Mr. Gremillion: Because that does not f i t  the factual 

situation  as i t  occurred here. The only necessary —

Justice Black: How can you know unless i t  were offered into  

evidence?

Mr. Gremillion: The only necessary ingredients to  th is  

crime is  to show the possession, is  to show the orders to leave, 

and to show the continuance of the remaining, and that was a l l  

that was necessary for th is particular conviction.

Justice Black: Now, I draw a d istin ction  myself, and I 

would like to draw your attention to  that because I would like to  

use that s itu ation .

But myself, I draw a decided d istin ction  between what a sta te  

can enforce, where the owner of property wants to  protect i t  for 

certain uses, and he has a right to  do i t ,  and one where the \ /  

police or the sta te  steps In and says, "Irrespective of what 

you want".



rb-27 171

I think I wrote somewhat on that in the Struthers cane, — 

Mr. Gr era i l l  ion : Yes.

Justice Black: "Irrespective of what you want."

Gremillion, That was a doorbell ringing caso 

Justice Black: "Irrespective of what you want we want to

stop these things and, therefore, you send for them and we w ill  
arrest them."

Mr, Grem illion: I would agree with th at, Your Honor.
Justrce Black: Well, I am asking you now about th is  one 

point.

He was denied the opportunity to offer evidence to show 

i t ,  i f  he could. Maybe he could not.

Mr, Gremillion: Well, I must be quite frank with you in 

te ll in g  you i f  that were in the record I would agree with you, 

but i t  is  not in the record and i t  is  not the S ta te 's  fau lt that 

he didn't c a ll the Mayor and the Superintendent of Police to  

prove that particular point even though he was not allowed to  

introduce that evidence by a question of Mr. Earrett.

Justice Black: Why 3hould a lawyer do something when the

court t e l l s  him in advance, "We are not going to  have any evidence 

on that subject"?

Justice White: Well, General —

Mr, Gremillion: Yes?

Justice White: — i t  seems to  me that he was talking to the

man whose decision i t  was, whose decision was the sign ifican t



decision in the case.

Mre Gremillion: I don't quite understand who you are talking  

about.

Justice White: On the property.

Mr. Gremillion: You mean the store manager?

Justice White: Some people say the question is whether or 

not the store ovmer exercised h is own discretion and h is own 

decision.

And i f  that gentleman is on the stand i t  would seem somewhat 

sign ifican t to inquire into whether or not i t  was his decision  

or the s ta te 's  decision that these people be excluded and when 

he asked the question the question was whether th eir  decision  

was a matter of conforming to state policy or not —

Mr. Gremillion: Yes.

Justice White: — and th is  was the direction in which 

apparently he was heading.

Now, i t  is  true he might have gotten that in in other ways 

but in the long run i t  would be most sen sib le , I would think, to 

get at i t  through the owner of the store.

Even i f  you had had the Mayor and the policemen on the 

stand, the police ch ief on the stand, he s t i l l ,  I would think, 

would fe e l  some compulsion to get at th is  matter through the 

store owner.

Mr. Gremillion: Well, Mr. Justice White, a l l  of that or 

the answer to  that is  covered in Judge Cocke' 3 denial of the



173
motion to  quash and also  in the judgment ox the Supreme Court of 

the s ta te .

Justice White: How is  that? How is  that, General?

Mr. Gremillion: I say i t  is  covered.

Justice White. But how is  i t  covered?

Mr. Gremillion: It Is discussed.

Justice White: Well, what is  the answer?

Mr. Gremillion: Would you just bear with me one second 

u n til I can find it?

Here i t  Is on page 146 of the Supreme Court's Opinion:

"The defendants sought to Introduce evidence to  

estab lish  that the action of the manager of McCrory!s 

was provoked or encouraged by the s ta te , i t s  policy, or 

o ffic er s , and they would have th is  Court hold that th is  

action of McCrory1s was not i t s  own voluntary action, but 

was Influenced by the o fficers of the s ta te .

"The conclusion contended for is  incompatible with the 

fa c ts . Rather, the testimony supports a finding that the 

manager of McCrory!s had for the past several years refused 

service to  Negroes, that the policy of the store was e s ­

tablished by him, that he had set out the policy and followed 

i t  consistently;

"That Negroes had habitually been granted access to  

only one counter within the store and a deliberately  pro­

voked mischief and disturbance such as the one he complained



rb-30 17^
of here had not previously occurred.

"In the past other Negroes who had mistakenly taken 

seats at the counter in question and who were told to  move 

had cooperated and recognized the requests of the McCrory's 

employees and had sat at the counter set aside for them.

"Even under the provision of the questioned statute i t  

is  apparent that a prosecution is  dependent upon the w ill  

of the proprietor, for only a fter  he has ordered the 

intruder to relinquish possession of his place of business 

does a v io la tion  of the statu te occur.

"The sta te ,th erefore , without the exercise of the 

proprietor's w ill  can find no basis under the statute to  

prosecute."

And then i t  goes on —

Justice White: We11, I s t i l l  do not consider that an 

answer.

Mr. Gremillion: Well, I know that you are not properly 

answered —

Justice White: I see no answer there sp ec if ica lly  to the 

question.

Mr. Gremillion: Mr. Justice White, I agree that we are 

probably weak on that particular point but just so be i t ,  as far  

as we are concerned.

I f  th is  Court says he should be allowed to do i t  there is  

nothing that I can do about i t ,  but we do not fe e l  that their



rb-31

175
rights were violated  in th is respect in th is  particular tr ia l  

because of the provisons of the Louisiana law, and the court 

went into that quite thoroughly, and I w ill  just have to  stand 

on the decision of my Supreme Court.

The Chief Justice: General, you said a few moments ago 

that the Mayor was speaking only of unlawful demonstrations.

Would you show me in his statement, please, where he says 

he is  only referring to  unlawful —

Mr, Gremillion: No, he doesn't come right out and say

that but, certain ly , I don't think anyone would understand that 

he was trying to  say — that he was referring to  anything but 

violations of the law.

In other words, I am being as candid about th is as I 

possibly can, and I am considering what occurred, these three 

demonstrations, and why the Mayor did th i3 .

And I have never talked to him about i t .  I have never 

discussed i t  with him.

And I suppose that we can draw or that anyone can draw his  

own inferences from his statement.

But I  repeat that I  think that his statement was one purely 

of a m in isteria l nature in which he was trying to  maintain the 

peace of the community because he went ahead and quoted in h is  

statement, Mr. Chief Justice, Act 70 of the i 960 Legislature 

about disturbing the peace.

He quoted another provision of 70. He quoted 80, which was



obstructing public passages, and the restraining of tr a f f ic .

And looking at i t  from an overall p icture, I do not think -  

I thank he was d irecting his statement to the en tire population 

of New Orleans and not to  one sp ec ific  group, to restrain them­

selves and co act in a lawful manner.

That is  what I get from ham and, apparently, that is  what 

the court got from i t ,  and I repeat, that Mayor Morrison is  

certa in ly  a man of moderation.

He is  very lib era l in his thoughts. And 1 don't think that 

he ever had in mind the u tiliz a tio n  of p o lio s  force or his o ffic e  

or anybody to take anyone’s rights away.

And I repeat that certain ly these s i t - in s  occurred some 

four or five  days after his particular statement.

So i t  must have been a situation  whereby these individuals 

wanted to provoke some action where they could come under the

cover and the cloak of the Fourteenth Amendment and have th eir  

prosecutions voided.

The Chief Justice: He was not speaking to the general 

public when he said t h i s :

I have carefully reviewed the reports of these two 

in i t ia l  demonstrations by a small group of misguided white 

and Negro students or former students.

"It is  my considered opinion that regardless of the 

avowed purpose or intent of the participants, the e ffec t  

of such demonstrations is  not in the public in terest of th is



rl}'-33
177

c ommunity *:|

Mr. Gremillion: That is  correct.

Now. in a l l  candor, is  not that speaking about the policy  

of the sta te  which wa3 one in favor of segregation? That, I 

admit, and we admitted in our b rief.

That is  what he is  talking about.

The Chief Justice: He is  talking about maintaining that 

policy of segregation?

Mr. Gremillion: He is  talking about a policy or a custom 

which the people in my sta te  have practiced ever since we became 

a union, ever since we were admitted to the Union, and which, as 

our Supreme Court has said , was practiced freely  by both white and 

black.

May I t e l l  you something, Your Honor?

The Chief Justice: Let me ask th is  one more question:

And he is  in sistin g  in the statement that that foe adhered

to?

Mr. Gremillion: Oh, yes, absolutely, because he says i t  is  

not in the public in terest and he does not want any unlawful 

acts to  occur.

That is  what I would welcome.

We were talking about inns and in that connection le t  me 

go into th is . We were talking about inns and hotels in other 

s ta te s .

We have no such statu te in that respect, but talking about



rta-31!- 178
the policy of the s ta te , just recently a motel was opened up 

in  Baton Rouge, called  the International Motel, and they have 

signs up and down the highway.

Do you know what they have on the bottom of those signs?  

"Owned and operated by and for colored people only."

We have the Lincoln Hotel in Baton Rouge which is the same 

way. Hotels are in New Orleans which are the same way. There 

are tou rist courts in Lafayette, tou rist courts in Lake Charles, 

and tou rist courts in Shreveport, and they publicly say, "This 

is  for colored only."

Now, who made them do that?

It Is s tr ic t ly  the policy of the sta te; th a t's  a l l .

Negroes are doing i t  just as much as white people.

Are we to be condemned i f  they do that? Can you say that 

a posse is  sta te  action under the due process clause of the 

Fourteenth Amendment?

The c iv i l  rights cases hold otherwise, and I agree with the 

gentleman up here from Baltimore, or wherever he is  from, yester­

day when he said to  reverse these convictions that you have to  

overrule the c iv i l  rights cases, and I said quite frankly, "I 

agree with you as to  what the law is ."

And I b elieve, to  overrule i t ,  i f  you approach i t  from the 

facts in the law, that you have to  overrule the C ivil Rights Act 

which, of course, w ill  give us, by the decision of th is Court 

i f  you do that, a national c iv i l  rights policy.



rb-35

# 6

179
Justice Douglas: I suppose that we have the same case that 

we have today or would have that we have today i f  a white man 

was thrown out of a Nepjro restaurant?

I-fr. Gremillion: We surely would. And i f  he would go into  

that International Motel that I am talking about,, to  seek a 

room, why. you would have another astronaut coming out of 

Baton Rouge.

Let me t e l l  you about another l i t t l e  incident.

Well, I wasn!t  trying to be facetiou s. 1 rea lly  was trying  

to  t e l l  you what i t  was.

Now, we have a case that I am sure is  going to  end up here. 

We have a Negro in Louisiana charged with aggravated rape, and 

he claimed his constitu tional rights have been violated because 

Negroes have been system atically included in the jury panels and 

he wants to be tried  by an all-w hite jury.

Now, isn 't  that one for the books?

So I am only bringing that out to  t e l l  you what the policy  

of our sta te  i s ,  what the custom is  down there, and i t  hasn't 

been enforced by vrhite people only.

It has been enforced by Negroes as w ell.

We have got a new community down there at Houma, Louisiana, 

which is  sort of an Indian tr ib e , a mixture of French and 

Negro, and they have got th eir  own school,, They want their  

own school. They t e l l  the School Board they want nobody e lse  

in  there. They don't want white, colored or Orientals.



They want th eir  school. Those are things which are just 

innate. Those are things which are positive and there is  no law 

v;hich requires them.

They just do that. They segregate and stay unto themselves.

Yes, gentlemen, th is  is  a serious question. I rea lize that 

a l l  of these cases are t ic k lish  because they involve prejudices 

and we have prejudices a l l  over the United S ta tes, not only in the 

State of Louisiana.

In fa c t, I would say we have more throughout the United 

States than we have in our s ta te , lie donrt try to  hurt anybody.

I don't say that th is  opinion is  for black and th is  opinion is  

for white.

I don't have segregated signs in my o ff ic e . I receive a l l  

of the races in my o ff ic e , Mexican, Red, Green, and a l l ,  and 

Irish .

Justice Goldberg: General, may I ask you th is:

Ey the way, going back to  the Mayor's statement — and, by 

the way, I share your opinion of Ambassador Morrison ~  but is  

not th is  proof of your very candid statement of what was happen­

ing, that what the Mayor was saying in th is  statement was that 

i t  wa3 not conducive to the best Interests of the c ity  to have 

desegregated eating places in New Orleans, and, therefore, he 

was instructing the Police Department to prohibit any effort to 

desegregate restaurants?

Is that not what he was saying, in effect?



rb-37
181

Mr. Gremillion: No., I don't think so , Your Honor, because 

he did say that he knew of no integrated eating places, as well

as the Chief.

But I come back to the fa c t, that when you read h is s ta te ­

ment, in view of what occurred, what was in  the papers about the

s it - in s  in the rest of the c it ie s  and about the two that had

already happened in New Orleans, that he was appealing to  the 

pride and to  the in te lle c t  and to  the peace-loving people of the 

City of New Orleans.

And that is  a l l  that he was trying to do.

And the reason I say that is  because i f  he had been other­

w ise, he had the power to take police and station  them in McCrory's 

in Katz & Eetzhoff, in Woolworthrs , and Kress, and in a l l  those 

stores , but he did not do that.

He allowed those people to conduct their business as they 

wish and as they saw f i t ,  and that is  further proof even by the 

fa c t, and th is  is  in the Government's b r ie f, and Mr. Nelson ad­

mitted i t  yesterday, that these store owners got together and 

decided that they .were going to  open th eir  lunch counters to 

everybody, which was —

Justice White: Is there any fact or evidence in the record 

showing any nexus between the Mayor's statement and the action  

of the stores?

Mro Gremillion: No, there is  not. There is  no evidence 

showing any connection whatsoever between the Mayor's statement



rb -38 132

and the fact that the store manager knew about I t  or that he 

used the Mayor's statement as the basis of his decision.

Justice White: Is the only fact that the store owner said  

he was following local customs —

Mr. Gremillion: The store owner said he was following  

local custom as determined by him, and that he had followed that 

policy for years and that he had followed i t  in other c i t i e s , 

and that that was his prerogative and his alone.

Justice White: Is there any evidence that he knew or _

Mr, Gremillion: No.

Justice White: — read of the Mayor's statement?

Mr. Gremillion: No., there is  no evidence. I stated that 

ea r lier , Mr. Justice.

There is  no evidence to  that e ffe c t  that I know of.

The Chief Justice: In th is case did the store owner not 

say that he was following local custom —

Mr. Gremillion: Yes.

The Chief Justice; — or law and something else?

Mr. Gremillion: Oh, yes, because that was his discussion

from —

The Chief Justice: He was following the law?

Mr. Gremillion: No, we had no law. You see, that was his 

statement*

That is  h is statement though, traditions and law — pardon 

me, but th is  is  important because in other communities such as the



cases we have here you do have laws and that Is what he was 

talking about*

There was no sta te  law., written or unwritten, on th is  

particular subject.

He was exercising his own right of choice and there is  no 

sta te  connection whatsoever.

The Chief Justice: Mr. Justice Black was pointing out to  

you a few moments ago, whether the law in sp ec ific  terms required 

such conduct, i f  the administration of the authorities was such 

that i t  did constitute sta te action , and here they would not 

even le t  the counsel for the defendant interrogate as to  what 

his conversations were with the police prior to the time that 

that a l l  happened.

Suppose we had —

Mr. Gremillion: Didn't he say in that record that he 

hadn't talked to  the p o lice, i f  I am not mistaken?

He said he hadn't talked to the p olice. The police didn't 

t e l l  him what to  do. That was brought out during the t r ia l  of 

the case.

He talked to  the p o lice, and he said , "What must I do?"

And the policeman 3aid, "All you can do i3 to ask them to leave."

And he said , w ell, he had already done that. Do you 

understand ?

The Chief Justice: No, I do not quite understand.

Mr. Gremillion; That is  in the record,



rb-40 184

The Chief Justice: I did not quite understand i t  that way, 

GeneraI.

Mr. Nelson wanted to inquire what relationship between the 

manager and the police was before th is thing happened and the 

t r ia l  judge did not permit him to  ask the question.

Mr. Gremillion: Well, le t  me say th is —

The Chief Ju stice: Whatever is  in the record, we have i t ,

Mr. Gremillion: Let me say th is ,  i f  i t  was denied him:

If I would have been defending those people I would have sought 

some other way to  get i t  in , and I don't think that Louisiana 

should be held for the negligence of an attorney as competent 

as my friencl from Louisiana may be.

The Chief Justice: But you would have thought i t  was 

material?

Mr. Gremillion: No, not i f  I would have been an Assistant 

D istr ic t Attorney or an Attorney General, no, because i t  was not 

su ffic ien t to prove I t  material or the res gestae or the 

essen tia l a llegations for a conviction.

Justice White: Well, General, would you not say there 

would s t i l l  have been le f t  the question even i f  the evidence 

had come in , that there s t i l l  would have been le f t  the question 

whether or not the store owner was or was not exercising his 

own choice?

Mr. Gremillion: But that was proven, Your Honor. That was

proven.



r b - ^ l

135

That actually  was proven,, that he alone made that decision. 

That is  in the record.

Justice Black: But th is is  lik e many others, as I read 

the record, in that he did not want to  say what had been said 

up to that time. He wanted to offer some other evidence that 

th is  was not his choice and i f  that was not true, i f  i t  was the 

choice of the Mayor or which he followed, rather, than his own 

choice, of course the principle on which you stand, that the 

owner has the right to  act upon his own judgment, would not 

apply, would i t ,  i f  i t  was the choice of the Mayor and the 

police rather than —

Mr. Gremillion: Oh, yes, I see what you are getting a t.

I f  the Mayor had sent instructions out by publicity and 

so forth , and said , "Now, look, donrt you le t  anybody come in 

here" that would have been state action , there is  no doubt about 

that.

But that did not happen in th is  case.

Justice Black: The record leaves that question unanswered 

because the court mistakenly or otherwise did not le t  that 

evidence in , and i f  that is  a mistake then i t  should be reversed, 

should i t  not?

Mr. Gremillion? Well, I don't say i t  should be reversed.

Justice White: General, one more question:

If the Mayor had said, "Now, don't le t  anybody in the 

store" and the department store did not have anyone in the store



at the lunch counter

Mr. Gremillion: That would have been state action.

Oustice White; That would have been s ta te  action, but do 

you not s t i l l  have the question le f t  of whether or no t the 3 to re  

owner is  saying, "I agree with the Mayor and no matter what the 

Mayor said I would have done i t  anyway"?

Suppose he had said , "If he had told me to le t  them in I 

was going to  keep them out"?

Is that not s t i l l  the question of whose w ill  and whose 

decision that was?

Mr. Gremillion: No, I don't think so , Mr. Justice White, 

because a l l  of that was thoroughly gone into both on the motion 

to quash and both on the t r ia l  of the cause, because Mr. Nelson 

cross-examined Mr. Barrett and Mr. Graves very very thoroughly, 

and that was brought out.

Justice White; So you w ill  say then that —

Mr. Gremillion: The question of the national policy was 

kept out — pardon me.

Justice White: You were saying then i f  there was an

express statement by the Mayor or some other o f f ic ia l ,  ruling  

or d irective , to keep Negroes out of lunch counters, that that 

ends the matter?

Mr. Gremillion; Oh, yes.

Justice White: When they keep them out, no matter whose 

decision i t  was after th a t, you would say that i t  —



rb-43
187

Mr. Gremillion: I f there had been some showing that the 

Mayor or even the Chief of Police said these things, "We are 

not going to permit them; we are going to put police at the 

doors; you are instructed to c a ll  us immediately and we w ill  

arrest them for you" yes, that would be sta te  action.

Justice White: So i f  Louisiana had had a sta te  lav; or a 

municipal ordinance forbidding the store owners to le t  Negroes 

to come to the lunch counters, that would end the case as far as 

you are concerned?

Mr. Gremillion; Oh, yes, but we don't have such a statu te  

and we never have.

Justice White: Regardless of whether i t  would have been 

constitu tional or unconstitutional?

Mr. Gremillion: Oh, yes, but, you see, we have no such 

statute or ordinances and we never have.

Justioe White: Yes, I understand.

Mr. Gremillion: Thank you.

The Chief Justice; Mr. Nelson.

REBUTTAL ARGUMENT ON BEHALF OF RUDOLPH LOMBARD, ET AL.,

PETITIONERS

BY JOHN P. NELSON,JR., ESQ.

Mr. Nelson; May i t  please the Court, I was on Mayor 

Morrison's s ta ff  for four years as Assistant D istr ic t Attorney 

and I am fu lly  aware of the problems involved in Mayor Morrison's 

administration.



Might I point out to  the Court that the reason why they 

have a sign on Negro motels "For Colored Only" is  because of 

a sta te  statu te that segregates inns, h o te ls , and places where 

people board.

The Attorney General must have forgotten about that statute  

or overlooked i t .

The Chief Justice: Is that statu te in your brief?

Mr. Nelson: No,, i t  is  not, s i r ,  but i t  is  s t i l l  in fu ll  

force and e ffe c t , and i t  is  one of the reasons why the New 

Orleans hotels have never desegregated, sp e c if ic a lly  —

The Chief Justice: Mould you mind giving us the c ita tio n  

of that, Mr. Nelson?

Mr. Nelson: I w il l ,  s ir .  It is  in the Government's b r ie f.

The Chief Justice: Oh, i t  Is in the Government's brief?

Mr. Nelson: Yes, s ir .

The Chief Justice: Well, never mind then.

Justice Black: Is i t  on the statute books now?

Mr. Nelson: It has never been repealed. It is  on the 

statu te books now.

Justice Black: What does i t  do?

Mr. Nelson: It segregates h otels. A Negro and white cannot 

liv e  under the same roof in Louisiana hotels today, and i t  is  

not a question of sta te policy, and the reason th is  man would 

want to leave Louisiana as fast as he would Is because the 

police would have ejected him.



rb-4f>

189
Justice Black: Do they have one covering the stores?

Mr. Nelson: Sir?

Justice Black: Do they have one covering the stores?

Mr. Nelson: No, they do not. Another thing., p lease, 

gentlemen, i f  you send th is  case back, give us some d irectives, 

some lim itations which vje can try th is case with them.

To try cases lik e th is  in Louisiana courts today, from a 

defense attorney's standpoint, is  a trying thing particularly  

when you get the Attorney General of a sta te  that makes s ta te ­

ments about race r io ts  due to picketing and maybe that is  what 

Mayor Morrison was referring to .

You know what the picketing consisted of? One picket, 

walking on the sidewalk behind Woolworth's on Ib erville  S treet, 

where there was a restaurant.

This is  the man that represents them. This case is  now 

pending before the Louisiana Supreme Court.

This is  the case that the Attorney General said was about 

to cause race r io ts  and mass picketing and pickets pushing people 

off the sidewalks in the French quarter.

One picket. Nov;, there Is a great deal of play in Louisiana 

p o lit ic s .  The statement Is , when you run for p o lit ic a l o ffice  

you play in South Louisiana and you pray in North Louisiana.

Now, th is  same thing is  being done here. We say one thing 

in New Orleans and one thing here. And the thing Is that we are 

trying to  somehow get in to  the main stream of the lega l l i f e



that is  going on in the United S ta tes.

Now., in Terrebonne Parish the Indians. Do you think they 

want to  segregate themselves? A case is  just about to start 

with fiv e  Indians.

Now, they force an Indian to  go to an Indian school. They 

couldn't go to  a white school or Negro school in Terrebonne 

Parish, Do you know they can't go even to  a high school in 

Terrebonne Parish?

They have a two-room grammar school there, and when they want 

to  go to high school they have to  go three hours to  another 

Parish.

Do you think they want th is , as the Attorney General would 

have you believe?

Members of th is  Court, basica lly  th is is  not a question of 

eating a hot dog with a white man. This is  a protest and dissent 

in an effort to  change a ttitu d es, to  try to  develop the conscious­

ness of a community to choose ju stice  and equal treatment.

B asically , that Is what th is  case i s .

Justice Stewart: The fact is  that these restaurants are 

now integrated?

Mr. Nelson: Yes, s ir .

Justice Stewart: So the attitudes have been changed insofar 

as conduct —

Mr. Nelson: The attitudes of the c ity  of New Orleans have

greatly changed.



191

I f  !  s te p  ac ro ss  th e  p a r is h  l in e  i t  has n o t changed, and

th a t  IS ju s t  one b lock  away, depending upon where I  am.

tea  there is  no question that in the City of New Orleans

th e  a t t i t u d e s  have been changing.
ju s t i c e  Goldberg: Mr. N elson, on your answer on th e  h o te l

s i t u a t io n  X though t th a t  th e  A ttorney  G e n e r a l ,  s ta tem en t was the

c o r re c t  one, th a t  th e  s t a t e  had p rev io u s ly  had a s t a tu t e  banning

,„ ,n„ .eo-re la t io n  on inns but had rep ea led  s e g re g a tio n  or r e q u ir in g  s e g re g a n

t h a t  s t a t u t e .

Is  th a t  no t c o r re c t?
* .  N elson: Oh, h o te ls  and m otels a re  d eseg reg a ted .

Now, am I  m is tak en , Mr. G rem illion?
, < -in -Tull fo rc e  and e f f e c t  Ihey  have a s e g re g a tio n  s t a tu te  in  f u l l

today.
You mean a Negro oan walk into the R oosevelt?

G rem illio n : .here is  no sta tu te  covering the s e g re -

gation in motels and h ote ls.
* to  b e lab o r th e  p o in t ,  bu t

j u s t i c e  Goldberg: I  do no t want to
. . __ there had been a statu te requir-x thought what had been said was there ha

, . „  opening inns to  everyone and that statu te had ing desegregation, opening

been repealed.
tb o re  i s  no s t a tu te  a t  £.11?As the law now si/and^, oher

. trmi talking about the l i t t l e  c i v i l  rights  Mr, N elson: Are you talking

s t a t u t e '
Goldberg: The innkeepers' statu te.ju stice



rb-43 192

Mr. Nelson: There was u n til 195  ̂ when i t  was repealed, 

but today hotels are segregated by statute in the City of New 

Orleans and the State of Louisiana.

Justice Goldberg: I do not find such a statute quoted in 

the Governmentrs b rief.

Mr. Nelson: Well, in any event, I w ill  correct that i f  I 

am mistaken.

The Chief Justice: Jf they require such a statu te w ill  you 

make a memorandum for the Court, please?

Mr. Nelson: I w il l .  Oh, i t  is  a New Orleans c ity  ordi­

nance, he says. But, in any event, I w ill  check that.

If I might just sum up in a hurry, as I see th is  Courtrs 

job, the issue here is  three:

Number one, the determination of sta te  action in these 

cases;

Number two, the question of defining the lim its within which 

a protest might be made in a store which Is open to the general 

public, and in defining that lim it you also set a lim itation  on 

the power of the sta te to prevent that particular right being 

exercised, and the th ird , as brought out by Justice Douglas, the 

question of whether there is  sta te involvement per se in the 

operation of a store such as McCrory's or Kress or Uoolworth's.

Justice Black: Do you distinguish between McCrory’s and 

Woolworth's ?

Mr. Nelson: No, s i r ,  they are Identical.



Justice Black: Or the corner store where a man liv es  in i t

or does not —

Mr. Nelson: There is  no one who liv e s  there,, s ir .

Justice Black: I know, but i f  i t  applies to McCroryfs and 

the others, i t  would have to apply to the smaller ones, would i t  

not?

Mr. Nelson: It would apply to any store open to  the public„

Now, I say we do not have to  concern ourselves with the 

question of whether the Metropolitan Club or the Boston Club, 

in the City of New Orleans, are involved because you have an 

element of poverty there.

You have an element of poverty that you do not have in 

McCrory?s or Woolworth's or Kress, and that element may make a 

tremendous difference.

So here we concern ourselves with a piece of property that 

is  open to the entire public, that is  a public thoroughfare that 

men have given up th eir  rights for any type of privacy in ik*

So the question is  on that issue.

Justice Douglas: A r e ta il  house is  not a home?

Mr. Nelson: No, s ir .

So on that issue the question that vie are •— i f  th is  case 

is  sent back sp ec if ica lly  — looking for guidance on is  whether 

or not these kids who have protested on th is  open property are 

exercising a First Amer^ment right, and whether that right w ill

be preferred to the corresponding property right of racia l d is-



rb-50 I n ­
crimination that a man may have., which would of course then

be exercised by prosecution and subsequent sentencing.

I say i f  we start with Marsh and, as I read the case, —

Justice Black: Marsh, as I reca ll i t ,  did not say that 

the sta te could not have laws against trespassers about leaving 

the property a fter —

Mr. Nelson: No, s ir ,  but the way I read i t ,  Marsh with the 

privately owned town of Marsh, with no sta te  involvement, th is  

was set up as a characterization of a particular piece of 

property so as to  define the lim its of a l l  rights being exer­

cised on i t .

Apply that to McCrory's and then we come up to date on 

the Shelley vs. Kraemer, and I submit that on the basis of these 

two cases, as far as I appreciate jurisprudence, we can come to 

the lega l conclusion that the preferred right of these kids to  

demonstrate in the manner in which they did, in the circumstances 

within which the act took place and the environment that covered 

the whole thing, that to be accused of trespassing was a v io la tion  

of their Fourteenth Amendment rights.

Thank you.

Justice Black: May I ask you just one thing?

I want to ask you just one thing.

Mr. Nelson: Yes, s ir .

Justice Black: Are you saying that the sta te  is  without 

power, by reason of the Federal Constitution, or that the owners



rb~51

# 8

195
of property or stores are unable to , under the Constitution, 

decide to  whom they w ill  s e l l  and to whom they w ill not s e l l  

and the conditions under which they w ill  s e l l  in their store?  

Do you have to  go that far in th is  case?

Mr* Nelson: Because of the strong sta te  action in th is

case I think not —

Justice Black: I understand that* I understand that 

fu lly .

But the issue, the basic issu e , when you get to  the bottom 

of these cases, is  whether ar* owner of a store , as you put i t ,  

can do th is and whether because he has the right to do i t  the 

sta te  can c a ll  i t s  o f f ic ia ls  to help him to enforce his lega l 

righ ts.

Mr* Nelson: In McCroryrs , a store open to the public, —

Justice Black: A ll stores are open to the public.

Mr. Nelson: Well, not Morrison's Cafeteria in the city*

They stop you at the sidewalk.

I would not say that was open to the public; not the 

Saenger Theater. It is  a property that is  — i t  has a public 

faculty  about i t  but i t  is  rea lly  not open to  the public, and 

they put up a "White Only’1 sign.

The barber shop that might just want to wait on white men —

Justice Black: Could the barber shop say that?

Mr. Nelson: Sir?

Justice Black: Could the barber shop say that?



rb-52 196
Mr, Nelson: Sir?

Justice Black: Could the Fourteenth Amendment forbid the 

barber shop saying that i t  would serve on white or only colored 

people?

Where does your argument take you there?

Mr. Nelson: Frankly, to answer your question, X have not 

thought that through here because they have an element of privacy, 

an element of privacy in there that we donrt  have in the McCrory's 

type of situ ation , where —

Justice Black: I am trying to  get i t  clear myself.

But I am finding great trouble myself, and th is  may be 

because I am too lib era l, in saying that stores, some mercantile 

establishm ents, can choose their customers and some cannot.

It would seem to  rr.e that i f  the man in the country place, 

i f  his door is  wide open to  everybody that wants to  come in, 

and he t e l l s  them not to , that he would be governed by the 

Constitution on that just the same as the other and that the 

Constitution forbids him, or, i f  the Constitution forbids him ts 

choose his customers on account of color —

Mr. Nelson: S ir , i f  that is  the predominant right every 

dispenser of goods In the City of New Orleans could refuse to  

serve every Negro.

At what point then —

Justice Black: Well, are you saying that the Federal 

Constitution, without any leg is la tio n  to back i t ,  bars a mer-



rb-53
197

chant from following that course?

That i s ,  as I understand i t ,  ultim ately the basic issue  

that w ill  sometime have to  be reached in  seme of these cases. 

Maybe not in these —

Mr. Nelson: Not in these. And insofar as to  whether the 

Constitution would prohibit a manager from actually  serving 

a customer, I would approach i t  on th is , th a t  1 b e lie v e  the 

Constitution would prohibit a Negro from protest at that very 

counter,if i t  rs open to  the public, that he not be served and 

for that protest I donrt  think he should be — the Constitution  

should keep him out of j a i l .

Justice Black: The question behind that would s t i l l  be 

whether he can go to a mercantile establishment against the w ill  

of the owner or stay there against the w ill  of the owner in order^ 

to make a speech of protect.

Are you saying that he could?

Mr. Nelson: Absolutely. Under the circumstances in which 

these demonstrations took place I say th is  was free speech and 

they were invited in.

I respectfu lly  submit that they can.

Justice White: Mr. Nelson, as I understand one branch of 

your argument, your argument says that no matter how you answer 

the question of whether or not a store owner has a right to choose 

his customers that i t  is  unquestionably clear that the state has 

no right to choose them for him and in th is case the sta te  chose



198rb-S^

them for him.

Mr. Nelson: That Is right.

Justice White: That is  one branch of your argument?

Mr. Nelson: That is  correct.

Justice White: And i f  you are correct in that these other 

questions are not in the case?

Mr. Nelson: That is  true.

Justice White: Is that not true?

Mr. Nelson: That is  true.

Justice White: And It is  only i f  you answer that question 

in that way that you reach another branch of your argument that 

I reach here today that I did not understand today, that a store  

is  such an establishment that i t  may not discriminate because 

a store, per se , is  a sta te  action for the purposes of the 

Fourteenth Amendment?

Mr. Nelson: That is  correct. But with the question of 

the p o ss ib ility  that th is  case may be sent back for a new tr ia l ,  

and I would respectfu lly  request that that be done, that these 

questions in th is case or these issues be defined, I would request 

th a t, so that we w ill  have some guidance to  prevent me re­

appearing here in 1962!-.

Justice Black: May I ask you, i f  i t  were sent down under 

Louisiana law, would It now be moot because a l l  of the stores 

now permit them to come in?

Mr. Nelson: I don't think the Governor would dismiss these



cases. The environment is  that way. I don't know.

I am sure i t  wouldn't he moot. It would be a question of 

whether the D istrict Attorney would just arb itrarily  not want 

to  prosecute these cases.

Justice White: Well., i f  they would be moot then they would 

be moot now?

Mr. Nelson: Well, there is  a j a i l  sentence facing these

k ids.

Justice White: There s t i l l  would be but how would i t  

change ?

If these cases were sent back how, in terras of mootness, 

would the situ ation  be changed?

Mr. Nelson: Well, there would have been no mootness as far 

as the defendants are concerned.

Justice White: I mean, somebody has to  take some action as 

far as these cases are concerned.

Mr. Nelson: That is  correct.

Justice Black: I f  there had been a statute which forbade 

th is  to  be done and the sta te has changed many laws, under those 

circumstances many changes are made and I presume i t  would be 

true, although not a statute or the common law, but the custom 

has been that Federal law changes, the custom changes, the 

practice of the sta te  changes or the sta te  would well order, i f  

i t  wanted to , and i t  might, that a l l  actions pending on i t  had

abated



That was the question I wa3 putting.

Iir. Nelson: Your Honor, of course, Louisiana, I respect­

fu lly  submit, would not because the Pendency —

Justice Douglas: If we affirm th is  judgment we would have 

to  do i t  on the basis or on the assumption that th is person would 

go to ja il?

Mr. Nelson: You would. There is  no question about i t .

Justice Douglas: Perhaps the Governor would pardon him, 

but we cannot make that assumption?

Mr. Nelson: No, s i r ,  because of the fact of the pendency 

of so many cases in Alexandria and Shreveport and other areas 

in Louisiana where th is is  s t i l l  a v ita l  issue.

The Chief Justice: Thank you, Mr. Nelson,



rb-57 201

The Chief Justice! No. 66, James Gober, et a l . , 

p etition ers, vs. City of Birmingham.

The Clerk: Counsel are present.

The Chief Justice: Mr. Motley.

ARGUMENT ON BEHALF OF JAMES GOBER, ET AL.,

PETITIONERS

BY MRS. CONSTANCE BAKER MOTLEY 

Mrs. Motley: Mr. Chief Justice and may It please the Court: 

The petitioners In th is  case are ten Negro students attending 

Daniel Payne College in Birmingham, Alabama.

They are here pursuant to T itle  28, United States Code, 

Section 1257, seeking a reversal of th eir  convictions to  tr e s ­

pass a fter warning by the Alabama courts.

Now, relying on the due process-equal protection clauses 

of the Fourteenth Amendment, these petitioners repeatedly claimed 

and assert here, that th eir  convictions are con stitu tion ally  

void because they are the product of sta te  action, manifestly 

prohibited by the equal protection clause of the Fourteenth

Amendment.

Now, a l l  ten petitioners were arrested on March 31, I960 

following s i t - in  demonstrations In fiv e  Birmingham department 

sto res ,

They were at that time seeking food service at a lunch 

counter lim ited to white persons.

Each petitioner was charged and convicted of v iolating

>



rb-58 202

Sec cion 1436 ox the Birmingham Code, a trespass act and warning 

sta tu te , which appears on Page 2 of our b rief.

There were fiv e  tr ia ls  in  these cases. One petitioner  

w«3 tried and Cnen i t  was stipulated that the testimony as to  

that one petitioner would apply to his companion.

You see , two petitioners went into each of these five  

stores and they were f ir s t  tried  in the Recorder’s Court of 

the City of Birmingham, and convicted, and then appealed to  the 

Circuit Court and th eir  convictions were there affirmed and 

confirmed by the Court of Appeals in Alabama, which was the 

only court which wrote an opinion and certiorari to the Supreme 

Court was denied.

Now, the s ign ifican t facts in a l l  of these cases are 

re la tiv e ly  the same. The f ir s t  important fact is  that 

Birmingham has a c ity  ordinance which makes i t  unlawful to  serve 

Negroes and whites in the same room.

That ordinance appears on page 2 of our b rief. Now, th is  

ordinance is  a pare oj. a massive sta te  policy of racia l segre— 

gation. We set forth in our brief the Alabama segregation 

s ta tu te s .

A ll of the p etition ers, of course, are Negroes who un­

s u c c e s s fu l sought service in department stores where Negroes 

are welcomed at a l l  counters except the lunch counter where th is  

ordinance requires that there be racia l segregation.

Now, in every one of these cases the petitioners were asked



to  leave the counter by some representative of the store , in 

the sense that they were told that they could not be served 

there or "we have a counter for Negroes in the basement; wonrt  

you go there?"

Or in some instances the counters were closed a fter  the 

Negroes appeared and they were told  they could leave.

Now, the police arrived in some instances when the people 

were s t i l l  eating, and the police arrived not pursuant to a ca ll  

from any member of the store in any case, and the record is  

absolutely clear on that, that no employee in any one of the 

five  stores called  the police.

Moreover, —

Justice Stewart; How does the record show how they were 

called?

Does the record show how the police got there? Why they 

came ?

Mrs. Motley; YeS, s ir .  In every case the o fficer  t e s t i ­

fied  that he was directed to go there either by a superior 

o fficer  or by a c a ll  over the radio in his car from police head­

quarters .

Justice Stewart: It does not show the chain behind that, 

does It?

Mrs. Motley: No, i t  doesn't, but he te s t if ie d  that he was 

directed by a superior or a c a ll  from police headquarters, and 

every store employee te s t if ie d  that he or she did not c a ll  the



rb--6c

204
police.

And that is  clear.

Justice St Bart: There is  no indication, in any case, that 

the police were already there ?

Mrs. Motley: No, s ir ,  I don't believe there is  any in d i­

cation to that e f fe c t .

Justice Black: Your case d iffers from the other one, as I 

understand i t .

The restaurant owner could not have chosen to  serve _

Mrs. Motley: Yes, I would —

Justice Black: — without making himself v io la te  a c ity

law.

Mrs. Motley: I say in th is case, unlike the others, we 

have the ordinance which was c learly  in the record, I think, 

or the court was certain ly required to take ju d ic ia l notice of

i t .

But I want to  make i t  clear that even i f  there were not an 

ordinance in th is  case the arrest of the petitioners and th eir  

conviction in th is matter, in these circumstances, would s t i l l  

v io la te  the equal protection clause —

Justice Black: I  understand your argument but certa in ly , in 

th is  case, you have a c ity  law which he would have violated or 

they would have violated  i f  they had served them?

Mr. Motley: That is  right, s ir .

Justice Black: And they could not make a choice of their own



free w il l ,  i f  i t  had been the other way, without subjecting 

themselves to  prosecution?

Mrs, Motley: Yes, s ir ,

Justice White: lies. Motley, was there any evidence in the 

record that they were enforcing th is  law by way of prosecution?

Mrs. Motley: Yes, s ir .  On page 24 of the record the 

representative from P izitz Department Store was on the stand, and 

he was asked what the petitioners had been to ld , and his answer 

on page 24;

"Answer: He told  them i t  would be against the law 

to  serve them there."

Then petitioners' counsel asked him about th is  ordinance 

which I have just referred to and there was an objection by the 

lawyer for the City and the judge sustained that.

He said he didn't think the w itnesses’ knowledge of the 

law was material or anything like that.

And the counsel for the defendants here 3aid "This is  the 

whole theory of our case" and the court would not permit him 

to develop that theory of the case.

He said:

"It is  our theory of th is case i t  is  one based simply 

on the City's segregation ordinance."

Justice White: I assume that such an ordinance would be 

unc ons titu tio n a 1?

Mrs. Motley: Oh, certainly



rb~62 206

Justice White: And is  there some evidence in the record 

rhat th is  just was not a dead le tte r  ordinance, that i t  just 

had not been cleared from the books but that i t  rea lly  had some

teeth  in i t ,  that i t  was a meaningful ordinance in th is  context 

at th is  time?

i^ s . Motley: As I say, the court would not permit him to  

develop i t ,  but I think th is case shows or th is record shows 

that fcnis ordinance is  vjhac was being enforced, because each 

police o fficer  came into the store and on the stand he was asked, 

l/hat did you see unusual as you came into the store?"

And each one replied, "I saw two Negroes s it t in g  at a 

counter" and for him that was enough.

Justice White: This did not have sp ec ific  reference to the 

ordinance, however?

Mrs. Motley: No, he didn't refer sp e c if ic a lly  to an ordi­

nance but in one case he said , "I arrested them under the authority 

of the City of Birmingham."

But the police o fficer  — in most instances he spoke to no 

one as he came in . In one case he said , "Mrs. Evans gave me the 

complaint."

The petitioners said they never saw Mrs. Evans u n til she 

got to court, the Recorder's court.

Bo that the testimony in each case is  that the police o fficers  

went in and did not speak to any employee of the store.

Justice White: But there is  no sp ec ific  reference to the



ordinance as being a factor in the store owner's decision in any 

of the cases?

Mr. Motley: Well, what I just read —

Justice White: Except that it  is  against the law?

Mr. Motley: That is  right.

Justice White: But that is  just in one case?

Mr. Motley: That is  right.

Justice White: And there is  nothing like that in any of 

the other cases?

Mrs. Motley: Well, in the other cases I think the court made 

i t  clear to the lawyer that he wasn't going to have that testimony.

Justice White: Yes.

Mrs. Motley: And in another place the lawyer for the 

petitioners wanted to  bring out that these people would have been 

served i f  i t  hadn't been for the ordinance, and the court cut 

that o ff .

Justice Brennan: What page is  th at, Mrs. Motley?

Mrs. Motley: Yes, s ir .  It is  one on page 167 and one on 

page 168.

The court said at th is  point, in the middle of that page:

"The Court: Is there any question before the court

now?"

And Mr. H all, the lawyer for p etition ers, said:

"If Your Honor pleases we had asked Mr. S ta llin gs

about Newberry's policy.



"The Court: That is  not competent."

And then he took an exception.

Justice White: What did the Appellate Court say about th is  

evident iary ruling ?

Mrs. Motley: Pardon me?

Justice White: What did the Appellate Court say about th is  

evidentiary ruling?

Mrs. Motley: They didn't say anything about that sp ec ific  

ru ling .

They ignored a l l  the evidence of the sta te  ordinance and 

said the owner here was exercising his right to  choose h is own 

customers.

As to the ordinance they said i t  had not been pleaded and, 

therefore, they wouldn't pass on that.

But there is  a statu te in Alabama which requires courts to  

take ju d ic ia l notice of the —

Justice White: But the Alabama Supreme Court ruled that 

they did not have to?

Mrs. Motley: The Court of Appeals.

Justice White: The Court of Appeals, yes.

Mrs. Motley: They said i t  should have been pleaded, that 

by some pleading we should have set forth that ordinance.

Well, of course, I don't believe that is  true because, 

number one, you can take ju d icia l notice of i t  and, number two, 

petitioners said , "My whole defense is  this" and certainly that



v;as before the court.

Justice Black: How is  th is  sta te  in a position to  say 

that th is  isa  voluntary action of an owner when he would be a 

criminal under the sta te  law i f  he did it?

Mr, Motley: Well, of course, they are not and the court, 

in making it s  decision, just ignored a l l  of the evidence here.

The police came in . Yet the store owner did not c a ll  the 

police. And even after the police arrived the store owners did 

not request the arrests and the o fficers were asked in every case 

was an arrest requested.

So i t  is  c lear, I think, that the sta te  was acting in th is  

case to enforce a sta te policy regardless of what the owners' 

policy might have been.

The Chief Justice: In the absence of the ordinance — 

do you have the Garner case here? Is th is  Garner?

Mrs. Motley: Yes, I think that here — as far as free

The Chief Justice: No evidence.

Mrs. Motley: Well, I think in each of these cases 

petitioners were asked to leave the store by some representative 

of the store and, in that sense, there Is evidence that they 

were asked to leave.

The Chief Justice: I see.

Mrs. Motley; Novi, as to the Garner case, what we say with

speech, you say, or Garner with respect to  no evidence?

reference to that Is that th is situ ation  is  lik e  the opinion of



rb-66 210

Mr. Justice Harlan, Your Honor, that here the store owners are 

apparently w illin g  to  endure th is  controversy.

They did not c a ll  the police* When the police came they 

didn't ask that they be arrested.

And so these petitioners were there demonstrating against 

the s ta te 's  policy of enforcing segregation, and they demonstra­

ted in th is  manner by seating themselves at a counter quietly

asking for service lik e anyone e lse  who is  white does, and the 

owner apparently was w illin g  to , as I say, endure th is  kind of 

controversy in th is  manner.

If he was not he obviously would have called the police.

When the police arrived he would have sa id , "I want them 

arrested." And there is  no question that they were peaceful.

There were only two in each store.

Justice Goldberg: Mrs. Motley, did I understand you ear lier  

to say that there was a stip u lation  incorporating the record 

in Gober in the other cases ?

Mrs. Motley: No, s ir .  Gober was tried  and his companion 

was Davis. Davis was not separately tr ied .

The testimony as to Gober was stipulated as to Davis.

Justice Goldberg: But not in the other cases?

Mrs. Motley: And then the next two that came up, one was 

tried  and the testimony as to that defendant was stipulated as 

to  h is companion, and so forth.

Justice Goldberg: Now, with reference to  the ordinance, in



rb-67 211

checking the record as you were arguing, I find i t  mentioned 

in the Gober tr ia l., but I do not find your reference in the other 

one, 168, which refers to the ordinance.

Is that right?

Mrs. Motley: That is  right. After that he did mention 

the ordinance again, but as I say, there is  a sta te statute  

which requires the courts to take ju d ic ia l notice of ordinances 

in c it ie s  of a certain s iz e , of which Birmingham certain ly is  one.

Justice Goldberg: Yes, I understand th at, but there is  no 

further reference to  the ordinance by counsel —

Mrs. Motley: That is  r ig h t.

Justice Goldberg: — for the defendants in the other 

cases?

Mrs. Motley: That is  right.

Justice Goldberg: The* only reference that was made was in  

the Gober case?

Mrs. Motley: That is  right.

Justice Brennan: And were these cases tried  in sequence?

Mrs. Motley: Yes, s ir ,  one after the other.

Justice Brennan: Before the same judge?

Mrs. Motley. The same judge.

Justice Brennan: Same counsel?

Mrs. Motley: Yes, s ir .

Justice Brennan: Same day?

Mrs. Motley: They were treated as a whole. The motions were



rb-68
212

a l l  id en tica l.

Justice Brennan: The tr ia ls  were a l l  the same day, were

they?

Mrs. Motley: Yes, they were. I believe they were.

And the sentencing was a jo in t sentencing for a l l  of them. 

They were treated a3 one case.

I don't think there is  any question about that.

Justice Harlan: On page 26, Mrs. Motley, —

Mrs. Motley: Yes, sir?

Justice Harlan: — am I wrong in reading the judgeTs ruling  

as overruling the objection to  the inquiry as to  the segrega­

tion  ordinance, overruling it?

Mrs. Motleys I think there is  some confusion in the record. 

Justice Harlan: I have read i t  three times now, and that is  

the reason for my question.

Mrs. Motley: Yes,

Justice Harlan: "I want to object," This is  Mr. Davis, 

the counsel for the City or the s ta te , "I want to object to the 

reference to the Segregation Ordinance. This ordinance has 

nothing to do with the matter of segregation."

I take i t  he means the trespass sta tu te .

Mrs. Motley: That is  right.

Justice Harlan: And then the court, "Wouldn't i t  apply 

equally to everybody?"

And I take i t  that refers to  the Segregation Ordinance.



rb-69 213

"I overrule the objection."

ffirs. Motley: Yes, but then Mr. Hall went on to ask about 

the ordinance and he said that that wasn't competent, and I 

think what he intended to say was that he was sustaining the 

objection of the City Attorney to  the introduction of any 

testimony concerning the ordinance.

It is  very confusing.

I was not at the t r ia l ,  and the way I read i t  here th is  is  

what he was rea lly  doing.

Justice Clark: He did not le t  him te st ify ?

Mrs. Motley: That is  right. He did not le t  him put in 

that evidence referring to  the ordinance.

So what he was doing was sutaining the C ity's objection to  

the Introduction of testimony bearing on the e ffec t of the 

ordinance.

Justice Brennan: Mr3 . Motley, perhaps I should say i t  is  

very confusing to me. It does not seem very confusing to me 

though.

Mr. Hall thought he had an opening and he asked the question, 

"Are you aware of the ordinance".

And the witness promptly answered, "I have heard of it ."

And then Mr. Davis promptly objected again and the judge 

sustained the objection.

What is  confusing about that?

Mrs. Mocley; Well, I think that what the clerk was saying



rb-70 214
is  that he didn't want any testimony regarding that ordinance 

in th is  record.

That is  the way I read i t .

Justice Brennan: Well, i t  can be read in that way.

Justice Harlan: It certain ly can be read as meaning that 

a l l  the judge meant as to what the ordinance provided was the 

question of law as distinguished from what e ffect the ordinance 

had on the action of the r e ta il  merchant?

Mrs. Motley: Yes, I think i t  Is subject to  that Inter­

pretation.

Justice Clark. The judge just said on the page before 

though, page 25, that the policy would not be material anyway.

Was that —

Mrs. Motley: Yes, I think at that time he was talking about 

the management policy.

Justice Clark: There he was referring to  the ordinance 

rather than the policy of the manager, but he said what the 

manager thought would not be material ■—

Mrs. Motley: Yes, they were talking about both, I think, 

at th is  point.

He said that the manager's policy would not be material and 

he also  said the ordinance was not.

As I understand the t r ia l  judge, he didn't want to hear that 

P lzitz  would serve these people notwithstanding the ordinance.

He didn't want to  hear that eith er.



rb-71 215
Justice Clark: He was the manager, was he?

Mrs. Motley: Well, he was the President or Vice President,

Mr. P iz itz .

Justice Clark: He is  the one who told  him to  leave the

store?

Mrs, Motley: That is  right. I think I would lik e to save 

the remaining portion of my time for rebuttal.

Justice Black: Let me ask you one question.

Was th is  store one of those that has now abandoned i t s  old 

practice?

Mrs. Motley: Not that I know o f, s ir .

Justice Black; It is  not in that group?

Mrs. Motley: No, s ir .

The Chief Justice: Mr. Davis,

ARGUMENT ON BEHALF OF RESPONDENT CITY OF BIRMINGHAM 

BY WATTS E. DAVIS, ESQ.

Mr, Davis: May i t  please the Court, first,, i f  I might 

c la r ify  one or two items that have just gotten into th is matter, 

we have been discussing here the unusual circumstances of the 

court{s ruling. I think simply i t  wa3 a s l ip  of the tongue.

You w ill  notice Mr, Hall and the jutfge have been discussing  

th is  matter from page 24 through page 26, and I think the judge 

forgot the frame of the question or the objection at th is  point 

and was simply going along overruling It and when he said , "over­

rule" I think he means he overrules the general approach to  th is



rb-72 216

# 11

things that we were getting  into irrelevant matters.

But another thing I want to mention, before I go into what 

I had in mind, addressing the court on,, is  the proposition that 

counsel has said that apparently they were w illin g  to to lerate  

th is  condition, and I believe in the brief they mentioned the 

proposition of economic give-and-take.

And I might throw th is  question out for answer i f  they desire 

to  answer i t :

Why would the store owner have turned out the ligh ts i f  

they wanted to s i t  there and to lerate th is?

Why did they say, "We cannot serve you here" i f  they were 

w illin g  to tolerate it?

Justice Black: Well, he had just said immediately before 

"We cannot serve you," and he told them i t  would be against the 

law to  serve them.

Mr.. -Davis: I would like to go back to that page 24, Mr. 

Justice Black, and follow that i f  we may in the language.

I believe Mr. Gottlinger was te st ify in g  at the time, and 

th is  was cross-examination, and Mr. Hall was asking Mr.

Gottlinger what some other person had said or I believe what 

Mr. P izitz had said .

He said he told them they wouldnrt  be served there that 

they had f a c i l i t ie s  in the basement to serve them.

He told them that i t  would be against the law to  serve them 

there. He told  them that i t  would be against the law.



217

"What law did he have in mind, do you know?

"Answer: I don’t  know.

"Question: He didn't say i t  was against P izitz policy

to serve them there?"

And th is  is  the key:

"Answer: He used the term 'We cannot serve you here'."

"Question: And you assume that he meant i t  was

against the law?

"Answer: I assumed that."

Justice Black: Mr. Davis, do you suppose there is  any 

merchant in Birmingham, even i f  he has not heen there as long as 

the P izitz  store has, who did not know i t  was against the City 

law to serve white and colored together?

Mr. Davis: Mr. Justice Black, i t  is  my sincere thought on 

th is matter that the ordinance never comes into the thought 

process.

Justice Black; I understand that.

Mr. Davis: I can make a confession —

Justice Black: How can anybody in Birmingham that has lived  

there and knows P izitz store has been there a l l  these years, how 

can they hot knew.that i t  was against the law to serve them 

together?

How could anybody know that i t  was on the books and was 

i l le g a l  since i t  has been the practice since time immemorial?

Mr. Davis: Well, I can say that I have lived there 4o years



and I have never heard of i t  being enforced.

Justice Black: You have never heard of i t  being enforced 

because i t  was obeyed*

Mr. Davis: That is  right. That is  a p o ss ib ility .

Justice Black: It is  a remote one.

Mr. Davis: Well.. I think i t  goes back to  the question of 

which comes fir st ., the chicken or the egg.

Wasn't that the question, that that existed before the 

ordinance came into e f fe c t , so there was no occasion for a 

change.

But I w ill  say th is , Your Honor, and I am a l i t t l e  ashamed 

to  admit i t .  I was in the City Attorneys' o ffic e  just a few 

months when th is  came up. I didn't know there was such an 

ordinance on the books, and when Mr. Hall got on th is  question 

he shouted constitu tional questions in  a l l  d irection s. I thought 

th is  was a general segregation issue.

He had no —

Justice Black: You had not been a merchant running a 

restaurant.

A merchant running a restaurant knows who he can serve and 

who he cannot.

Mr. Davis: Weil, l e t ' s  get back, i f  I may, to the basic 

question which I think is  the basic question in th is  whole contro­

versy:

F irst, what were the Issues in th is  case. We f i le d  a



rb-75 219

complaint charging one thing, that they trespassed a fter warning.

They concede in each case that they didn't.

Justice Black: Well, i f  they hadn't trespassed after warn­

ing i t  would have been against the law to go in there and do i t .

Mr, Davis: We have a void ordinance which we concede is  

void* I have never known of a case s in ce, before, or —

Justice Black: A merchant cannot be put to th e .r isk  of 

saying maybe they w ill hold i t  void and put himself up to 3uch 

a proposition.

I personally do not see how in th is case i t  is  possible to  

say or for anybody to reach a conclusion, in a matter of th is  

importance, that th is  merchant acted because he wanted to  rather 

than because i t  was against the law.

As far as I am concerned, I see no answer but that —

Mr. Davis: I  think there is  an answer.

Justice Black: Now, I see a great difference ~  do not 

misunderstand me — but I see a great difference myself between 

a merchant deciding that he does not want to s e l l  somebody, and 

I do not care what the ground i s ,  that he wants to s e l l  somebody 

e lse  and having the law t e l l  him that he cannot s e l l  them and 

then saying because of his own choice he didn't s e l l  them.

Mr. Davis: Well, Mr. Justice Black, you are fam iliar with 

the locale of Birmingham.

Justice Black: I am fam iliar with P iz itz .

Mr. Davis: You, of course, know that there is  an abundance



of attorneys down in Birmingham and, notwithstanding th is  old 

expression, you know that you canrt figh t c ity  h a ll, and many 

of them do figh t c ity  h a ll.

Justice Black: limy of them figh t c ity  h a ll on th is issue?

Mr. Davis: On th is issue.

Justice Black;’ On th is  issue?

Mr.Davis: No, s ir ,  out on many others and i f  the merchants 

wanted to  bring th is thing to a head and see what th eir  rights 

are I think i t  should have been done a long time ago.

But again I think i t  goes back to the question preceding 

the ordinance, and the ordinance didn't bring on th is  occasion 

whereby they changed i t  —

Justice Douglas: Well, in any case, a sta te  putting a 

person in j a i l  — what was the sentence here? Prison?

Mrr Davis: Oh, 30 days.

Justice Douglas: in any case, whether i t  was the proprietor, 

because he does not like you in his store or whether the c ity  

ordinance says he sh a ll not serve, in either case you have a 

sta te  putting a man in prison because he is  a Negro shopping in  

a certain  place.

Is that not right?

Mr.Davis: No, s ir ,  I  don't think so. He is  put in ja i l  

because he trespassed after he was told  not to remain there.

Justice Douglas: Well, that is  a matter of semantics as



rb~77 221

Mr. Davis: But the point i s ,  and I don’t  think we have yet 

touched the basic point in the City o f Birmingham case —

Justice Douglas: You think a r e ta il  store is  like a man's

home?

Mr. Davis: Very d efin ite ly .

I think there are some factual d ifferences, certain ly , tout 

as far as the law and the powers under the Constitution is  

concerned, we think private property is  private property whether 

i t  is  in your home or in any o ff ic e  or whether i t  is  in a small 

store or big store.

But the prime question, I think, is  important to  th is case, 

and i t  is  —

Justice Douglas: I suppose i f  you were right on that then 

what you would do is  you would use the Constitution to drive 

the wedges of segregation into a l l  of our society?

Mr. Davis: No, s ir .  I construe the Constitution as a 

lim itation  of power and not some affirm ative instrument to use 

to  do p ositive th ings, tout a lim itation  upon the s ta te s , not to  

give anybody p ositive power*

Justice Douglas: But i f  you use i t  in th is way what you 

w ill  do is  you w ill  use i t  in a constitutional way to  grant 

segregation as a way of l ife ?

Mr. Davis: Well, some people use the word "segregation". 

Some people use the expression "racial discrimination".

Justice Douglas: The constitutional clause, of course, is



rb~?8

# 12

222

equal protection.

Mr. Davis: Yes. I  prefer to think of i t  in a d ifferent  

sense, "racial choice", "racial se lec tiv ity " .

I know that Irishmen prefer Irishmen, or at lea st I have 

heard that.

There is  a l i t t l e  Chinese community in our home town —

Justice Douglas: There is  a l i t t l e  difference from or you 

have a different problem when you go to the judge and say, "Put 

the man in j a i l  because he violated my premises."

Mr. Davis: No, s ir .  They have segregation among themselves 

in our c ity .

You see , some people have the fee lin g , I think, that the 

Negroes don't prosper in the South. N ell, I can assure the Court 

in my home town they have beautiful resid en tia l d is tr ic t s ,  and 

I fe e l  right ashamed when I see some of their C adillacs, new 

ones, and I am s t i l l  driving a ten-year-old automobile.

That is  the rule and not the exception. But the issue that 

we are getting at here now was th is issue tried  under the sta te  

court. To me i t  was just another law su it .

We f i le d  a complaint saying, "Well, you didn't leave when 

you were asked to"; a simple c ity  ordinance.

They came along and f ile d  a motion to  strike the complaint.
The Supreme Court cited authority in two cases of th is

Court. One was B iorella vs. City o f' Birmingham, and the other 

was Taylor vs. City of Birmingham, and they said that a motion to



strike in th is type of action does not serve to attack the 

su ffic ien cy  of the complaint.

They don*'t say i t  does. They have never taken issue with 

th is  proposition. The motion to  strike went out of the way.

What did they do, along with the next?

They cited the H ill case and the Court of Appeals in  

Alabama said two things: F irst they are a l l  general and we have 

a Code Section which says you must f i l e  sp ec ific  demurrers to  

the portions of the complaint you are objecting to and not the 

general.

The Court of Appeals said that was no good.

In an additional case they raised additional objections.

This applied to the trespass order and the court said that was 

seeking demurrers; that i t  was required evidence and i t  didn't 

appear on it s  face now i t  affected i t .

It took evidence. That is  what they were speaking of.

They have not denied that that was the way the case came about.

So what do we normally come to? A plea of general issu e* 

and then a trespass a fter warning. Isn 't that the only question 

we have? We charged they did. They said they d idn't.

Now they come along and say, oh., but the City must negative 

sta te  action.

Under what theory are we required to  negative anything?

They drew the boundary line in th is dispute. They didn't 

f i l e  formal or specia l pleas.



They brought up nothing of that nature that the court could, 

adjudicate. This court, in H ill versus Mendenhall, found in 

88 U.S, 453, announced the fundamental principle of pleadings.

Pleadings apply to  the parties in the court on the facto 

at issu e . The court may declare the law and the p arties , what 

they might meet by their proof, and here we are s it t in g  here with 

a general issu e„

And they say, w ell, you can take ju d ic ia l notice. They are 

asking the lower court to  act as counsel*

Judicial notice is  not a substitute for pleadings, i f  I may 

mention i t .

The Chief Justice: Do you require pleadings in a criminal

case?

Mr. Davis: Yes, s ir ,  but these are q u a si-c lv il.

The Chief Justice: Yes, but do you require the pleadings?

Mr. Davis: Yes, s ir .

The Chief Justice: What are the pleadings?

Mr. Davis: Mr. Breckenridge was saying that th is  case 

was quasi-crim inal, and you asked -—

The Chief Justice: Well, i t  is  criminal when you go to  

j a i l ,  is  i t  not?

Mr, Davis: Not under the Alabama decisions interpreting  

these matters, Your Honor.

Justice Black: You mean not under the label here?

Mr. Davis: I beg your pardon?



rb-8l 225

Justice Black: You mean not under the label here, but 

where a man can be sent to j a i l  or prison for s ix  months —

Mr. Davis: Yes, s ir .

Justice Black: — and fined how much?

Mr. Davis: $100 or a hundred days.

Justice Black: By virtue of —

Mr. Davis: I don't contend that they are not penal.

The Chief Justice: They are not criminal though, you say?

Mr. Davis: Under the Supreme Court decisions of the State  

of Alabama they are quasi-crim inal. Your rules of c iv i l  pro­

cedure apply. On appeal your rules of c iv i l  procedure apply.

They must decide error and —

The Chief Justice: What e ffe c t  does a plea of not gu ilty

have?

What issues does i t  raise in a case of th is kind?

Mr. .Davis: They didn't do i t .

The Chief Justice: Well, they can enter the plea but what 

issues can be raised under a plea of not gu ilty?

Mr. Davis: Only the question that they didn't do the act 

complained of in the complaint.

Justice Black: As i t  applies, as I understand i t ,  or i t  

used to  be, was that the sta te  or the c ity  approved it s  case 

beyond a reasonable doubt, every element in i t .

One element, that he was trying to trespass a fter  warning, 

would have to  be proved beyond a reasonable doubt, of h is own



choice not because he had done i t  or, in fa c t , had directed the 

man to  leave.

So that would be an issue in th is case, would i t  not?

Mr, Davis: If i t  were brought up by plea or defense.

Justice Black: A plea of not gu ilty  brings i t  up,

Mr, Davis: I f I may say th is , Mr. Justice Black, I think 

you are going into what is  a defense in th is trespass thing.

A ll we are involved in is  proving that he did what the ordinance 

says you must not do.

Justice Black: Yes, but the ordinance i s  based on the 

princip le, I suppose, that he was ordered by the owner of h is  

choice, with his own knowledge, making up h is own mind, not 

to stay there, is  i t  not?

Mr. Davis: Well, I would assume —

Justice Black: Suppose you ask a charge, i f  you believe  

from the evidence on a plea of not g u ilty , i f  you believe from 

the evidence in th is  case that the owner did not himself do th is  

because he wanted to do i t  but because there was a man standing 

behind him with a gun in his hand, suppose they ask a charge on 

that and there was evidence to that e f fe c t , can you convict?

Mr. Davis: I think once you prove the simple fact he was 

to ld  to leave the premises and he didnrt ,  the sta te  has carried 

i t s  burden of proof and the state takes over.

Justice Black; You can convict without a shadow of a doubt 

i f  a man had a gun to his back and somebody is  te llin g  him to  do



Mr, Davis: A man told  him to  do it?

Justice Black: Yes.

Mr. Davis: No* sir* that would not be a voluntary act.

Justice Black: N ell, the same thing has always been recog­

nized in the law when somebody t e l l s  you •—

Mr, Davis: Nell* you are assuming* of course* that they 

acted under th is  —

Justice Black: No* I am assuming that the sta te  has to 

show that they acted or exercised th eir  own judgment and their  

own choice in ordering him to get out and what you have here is  

the law staring you in the face that i f  they do not order him to 

get out they w ill  go to j a i l  themselves,

Mr, Davis: Nell* as I interpret your question* or statement* 

i t  looks lik e  the state* in prosecuting any case where somebody 

shoots somebody e lse  they are going to have to show that they 

voluntarily did i t ;  they are going to have to show that they are 

not insane: that the sta te  has got to negative every defensive.

But th is  is  purely defensive —

Justice Black: Beyond a reasonable doubt every allegation  

in there. Does i t  not Include that?

Mr. Davis: Nell* i t  says that he fa iled  to  leave after  

being warned.

Justice Black; N ell, i t  would certainly be a bad ordinance* 

would i t  not* i f  i t  were based on the fact that the owner did



rb-84

228

that because the lav; told  him?

That would be a bad ordinance, would i t  not?

Mr„ Davis: Well. I think the ordinance, te llin g  him that 

he has got to  make that e lection  is  bad and void, yes, s ir .

Justice: Black; That would be one. So that that is  an 

essen tia l element that he did i t  himself., not because the sta te  

made him, I would think.

Mr. Davis: W ell, i f  that were the law, and I am not a 

prosecutor you can probably guess, I am a land attorney from 

the City of Birmingham.

Justice Black: Well, I have done some of both.

Mr. Davis: But I don't think the lav; places any burden on 

the prosecution to come along and negative any possible defense 

that might creep into the situ ation .

As I say, th is is  a defense matter. And you w ill  notice 

in the discussion between Mr. Hall and the court that Mr. Hall 

said f i r s t  i f  they had not gone into Pis i t s  store and lit?. P izitz  

had not told them to go out of the store, and th is  is  on page 24 

or 25, he said "we wouldn't be here."

And the court says, "Well, is  there any divergence between 

you and the City on this?"

In other words, P izitz said to him to get out — or, rather, 

i f  P izitz  hadn't told him to  get out, why, they wouldn't have 

been prosecuted, and he said , "I don't know."

Then the court said th is :  "Isn't the issue in th is  thing



rb-85 229

13

whether they trespassed after warning?”

And he said, "I think s o .” That was Mr. Hall., counsel for 

p etition ers.

Then the court said one other thing: "Well, is n 't  that the 

issue? Isn 't that the thing that is  germane?”

And what did he say? He said , "It certain ly i s ,  Your Honor.”

How can we be more doubly sure of what we were trying in 

th is  case, what the Issues were? How were we to f ix  the boundary 

lin es of th is  dispute not only by the pleadings but by admission 

of the counsel him self, that the boundary line Is has there been 

a trespass committed. Isn 't that the issue?

Isn 't that the thing?

Justice Black: After warning?

Mr. Davis: Pardon?

Justice Black: After warning?

Mr. Davis: Yes, s ir .

Justice White: Well, Mr. Davis, are you saying that the 

rules of procedure, applicable to  th is  kind of a proceeding, 

require the defendant to  affirm atively raise th is  sort of a 

defense based on the Const itution?

Mr. Davis: Oh, very d efin ite ly . Very d e fin ite ly .

Justice White: And i f  he raised i t  in a proper form are you 

saying that he had the burden of carrying that?

Mr. Davis: Well, i t  is  a matter that he asserts. He has 

his burden of proceeding with i t ,  at le a s t .



rb-86
230

■Justice White: And what was the burden?

What degree of proof is  the sta te subject to  in th is  kind 

of a proceeding beyond a reasonable doubt or is  i t  just a pre­

ponderance of the evidence?

Mr. Davis: It is  beyond a reasonable doubt but may I say 

th is  at th is  point, that they have cited the Thompson vs.

City of L ouisville case, and of course, the Garner case, and 

we would like to  join them In c itin g  those two cases.

The rule that th is Court enunciated, i f  I reca ll correctly , 

in Garner was that the te s t  is  not the su fficien cy  of the evidence 

but whether then was any evidence.

They concede the evidence in each case* The employer of the 

store ordered them off the store.

So vie ha^e no issue there, rea lly .

Justice White; Well, did the Court of Appeals give any 

consideration to the exclusion of the evidence that was excluded?

Mr. D .v is : No, i t  was not argued. It is  mentioned in the 

Court}s opinion.

They had fiv e  assignments■ of error which they must — that 

they relied  on.

The f i f th  one. on that one there was some question about 

error. I believe i t  is  about bias and prejudice, but i t  appears 

in the assignment of errofs but they didn't even argue that.

They didn't argue any question of evidence whatever in  the case.

They simply argued that there were demonstrations and there



rb~87 231

were symbols of communications or symbols of something or other, 

and i f  you w ill  notice, the court took o ff on one or two of those 

arguments, but the only thing they argued before the Court of 

Appeals was their ruling, and they didn't argue that.

They assigned i t  as error - -  the overruling of the motion 

to str ik e the complaint as error, and then they f ile d  the motion 

to  exclude the evidence and the motion for a new tr ia l .

May I say th is , i f  you w ill  notice the three grounds — i f  

I may say th is  and invite your attention  to i t .

I think on page 6 you w ill find the f ir s t  one, in the 

Gober case.

In fiv e  of those grounds they say i t  is  not the policy of 

the City of Birmingham or the State of Alabama. They say i t  is  

the policy of the custom or usage that f a c i l i t ie s  or whatever 

particular department store is  involved that has deprived them 

of their Fourteenth Amendment guarantees.

The other ground they couldn't d irectly  attribute to anyone. 

But that is  a confirmation as to  what the simple issue was as to  

what the t r ia l  court did or did not decide a fter  someone told  

them to get off the premises.

But the loca l counsel, and there were fiv e  of them who were 

expert in these matters — i f  you w ill  notice that motion there 

are fiv e  times i t  went through there for the grounds asserted, 

said i t  was the policy of the store or the policy of custom and 

use of the store or the custom of the preponderant number of



rb-88 232

department stores in the City of Birmingham that deprives them 

of their righ ts.

So we were not arguing any constitutional issues in th is  

thing *

But since they brought them up I think very clearly  loca l 

counsel connects the policy of the stores themselves as contrasted 

with the sta tes and i t  c learly  answered the question.

The Chief Justice: Is i t  your position that the Federal 

questions were not adequately raised below?

Mr. Davis: Not raised at a l l .

N e ll, "adequately11 is  perhaps a better way to  put i t .

Demurrers were not properly raised and the motion to s tr ik e , 

that doesn't even l i e .

There have been two cases from th is Court, Taylor vs.

City of Birmingham and F iorella  vs. City of Birmingham where a 

writ of certiorari was denied.

After the evidence was taken there we went to issue on 

that simple question. After that evidence was in they then come 

along and f i le d  a motion to exclude the evidence, never suggesting 

that the evidence was in su ffic ien t in any way.

They simply said that these stores weren't cited  in here.

Justice Goldberg: Mr. Davis, am I correct, in looking at 

your motion for a new t r ia l  or th eir  motion for a new t r ia l  in 

th is :  Did they not in the motion raise appropriately the evidence 

as w ell as the constitutional points?



rb-89
233

I am looking at page 12 of the record.

Mr, Davis: Well, as I reca ll —

Justice Goldberg: And was not the motion part of the 

assignment of errors on appeal, the old overruling of th is  

motion?

Mr. Davis: Which ground, please, s ir?

Justice Goldberg: I f  you w ill look at page 12 of the 

record —

Mr. Davis; Yes, s ir .

Justice Goldberg: — they say that the judgment of the 

court in said cause is  contrary to  law, contrary to  the fa c ts , 

that the judgment of the court is  not sustained by the great 

preponderance of the evidence in the case.

Then they go on to sp ec ific  rulings and overruling of 

objections and then on page 13 they raise the constitu tional 

issu es.

Nov/, is  not that an appropriate way to  raise an issue in 

the t r ia l  of a case?

Mr. Davis: I would not think so. The case had already 

been tr ied  at th is point,Your Honor.

Justice Goldberg: But in the t r ia l  i t s e l f ,  f ir s t  starting  

with the pleadings and the demurrers and then the objections to  

evidence and the motions to  exclude evidence, was there not a 

constant reference to constitutional Issues?
. r* '

Mr. Davis: Yes, s ir ,  they are constantly referring to



constitu tional provisions but not once did they come in with 

a formal or general plea*

How would any lawyer know how to prepare a case i f  they don 

have prepared pleadings?

The Chief Justice: You may fin ish  th is afternoon*

(Whereupon, at 12:00 o'clock  noon, the Argument was 

recessed, the Court to  reconvene at 12:30 o rclock p«m. on 

the same day.)



5 is  Doraii 
Firsh#l 
e t i

AFTER RECESS

235

12:30 p.m.

The Chief Justice: Mr. Davis, you may continue with your 

argument.

ARGUMENT OH BEHALF OF RESPONDENT CITY OF BIRMINGHAM 

BY MR. WATTS E. DAVIS — continued

Mr. Davis: Thank you, s ir .

May i t  please the Court, . one other question v/hich was in­

jected into the controversy here, and I say here because I 

respectfu lly  submit i t  was never injected into the controversy 

in the sta te  courts, was th is  question of police action.

As I mentioned ear lier , in Alabama you assign to the 

appellate courts your errors that you wish the court to con­

sider.

The Supreme Court rules sp ec if ica lly  sta te  that i f  you do 

not assign them or do not argue them, they won't consider those 

grounds. But these things are injected into the thing by 

appellate counsel, and not by loca l counsel in the state court? 

but i t  has been injected into the tiling here, which I do not 

think i s  the proper forum for i t ,  without the lower court f ir s t  

having had a chance to rule on i t -

They bring up the question of how the arrests were e ffectu ­

ated and brought about. Again, I say that the plea was a 

simple general denial.

Had we known that th is  v/as one of the channels that they



et2 236

wanted to proceed on by the pleadings, then we would have 

brought the police records to Court. We could have mustered 

up the complaint records. We could have looked for witnesses 

to say or to find out who made th is  report to the p o lice .

The police did not come there through some form of mes­

merism. Someone in it ia ted  th is  thing. But i t  was not upon us 

to explain that situation  under the simple general issue in 

th is  matter.

The Chief Justice: Well, we have had a good many of these 

s i t - in  cases where the police did in it ia te  i t ,  and we have had 

to reverse them for chat reason.

Mr. Dai v i s : I think that would be proper action.

The Chief Justice: So i t  i s  not necessarily mesmerism.

Mr. Davis: But I think th is , that we have got to try the 

case within the framework of the pleadings. We cannot shoot 

buckshot in every direction  hoping one w ill  h it  here and one 

there.

Going back to your H ill versus Mendenhall case, the funda­

mental reason for pleadings i s  to define the issues so the 

Court can apply the law, and the parties w il l  know what to 

meet.

But in  any event the p etition ers e lic ite d  themselves that 

the o ffic ers  who were te stify in g , for instance, in P iz itz , 

when he arrived here were his superiors talking with people 

in the store, presumably witnesses who had seen th is thing,



237

getting information, and they directed the arresting o fficer  

to make the arrest.

I t  brought out also that in Loveman°s, one of the o ffic er s , 

through cross-examination, one of his superior o ffic ers  had 

been to ld  that two of these involved here had been told to 

leave, and refused.

So i f  there was a duty on him to make an arrest, an 

ordinance had been violated, and in the case of Woolworth, 

which I think they brought out in the tr ia l  court, Mrs. Evans, 

the lunchroom manager, told  the o fficer  she had told  the two 

boys to leave, and then in  his presence she told  them. So in 

the presence of the o ffic er , the offense was committed.

I say again, and I hope the Court w il l  adhere to i t s  

rulings that i t  has adopted in the past, that these matters, 

which are not before a sta te court, w il l  not come up here for 

a f ir s t  hearing; in other words, not le t  them come here to 

try their case.

The Chief Justice: Mr. Davis, may I ask i f  in your 

b rief you have cited  the statute which compels a special 

pleading in  th is  case to be raised specially?

Mr. Davis: Yes, s ir .  I t  is  in t i t l e  7 —

The Chief Justice: I t  i s  in your brief?

Mr. Davis: Yes, s ir .

The Chief Justice: I f  i t  i s  in your b r ie f, that is  a l l

r igh t.



et4 233

Mr. Davis : I t  re la tes to c iv i l  cases; and X also sp e ll  

out that these are quasi-criminal cases, that a l l  your rules 

of evidence which apply in c iv i l  cases apply in quasi-criminal 

cases; your appellate rules that apply in  c iv i l  cases apply in  

quasi-criminal cases. I t  is  a c iv i l  proceeding.

The Court, whether rightly  or wrongly, has held that an 

offense against a c ity  ordinance does not r ise  to the dignity  

of a crime whether that i s  th is  philosophy in th is  matter or 

not, I do not know. I do not go into i t .

The Chief Justice: This i s  not an ordinance; th is  i s  a 

state law.

Mr. Davis: This is  a c ity  ordinance under which they were 

prosecuted.

The Chief Justice: Oh, yes, s ir .  I remember now.

Mr. Davis: In any event, th is  Court had said, I believe  

i t  was —

Justice Black: You said there was a rule in your brief 

about it?

Mr. Davis: I t  i s  a code section  in t i t l e  7.

Justice Black: Well, now, i s  i t  c ited  in your b rief here?

Mr. Davis: Yes, s ir .

Justice Black: Well, i f  you do not know, that is  a l l  right.

Mr. Davis: I t  i s  t i t l e  7, and I think i t  i s  235 — l e t ’s 

see, Code o f Alabama, 225. I copy a portion of i t  on page 5.

Justice Black: Page 5?



et5 239

Mr. Davis: Or at lease I make a reference to i t  at that 

point. I think in the Shuttlesworth case i t ,  perhaps, was, and 

I copied a part.

Justice Clark: Would th is  plea sp ecia lly  prevent the 

evidence that ha offered from being receive d as to the policy  

of the stores?

Mr. Davis: He went into the policy of other stores, I 

re ca ll, and 1 think the Government suggested chat as being 

tantamount to attempting to show the c ity  ordinance.

I made the objection that the policy of the other stores 

would not be involved in th is  case, not in Birmingham where 

th is case came from, but in other areas, and I think the Court's 

theory was and, perhaps, erroneously — I  won't comment on i t  — 

that policy  had nothing co do with i t .

#2 Justice Clark: That i s  what the Judge said, wasn't it?

Mr. Davis: I believe he said, "Aren't we trying a question 

here of whether he violated th is ordinance?"

Well now, they brought nothing before the Court in the 

nature of a formal plea to suggest these things.

Justice Clark: May I ask you, what kind of special plea 

would have to be f ile d  to raise the issue that th is  man did 

not do th is  of h is own choice but because the lav/ forced him to 

do i t ,  what kind of a plea? I t  has probably been changed 3 ince 

I was there, but I do not reca ll i t .

Mr. Davis: Well, i t  would just be a plea settin g  up



240
affirm atively these defensive matters or that there ex is ts  in 

the City of Birmingham an ordinace defined as section  so and 

so, and that i t  was in compliance with th is  ordinance that the 

store owner made th is  request to leave or d irective to leave, 

and so put i t  in issu e .

Justice Black: You mean that the burden of proof would 

have been put on him under Alabama law co prove that the man 

actually gave the orders of h is own choice?

Mr. Davis: I do not conceive that choice i s  an issu e .

The ordinance says i f  a man t e l l s  you to get o ff  his property 

you must leave. I f  you do not, you v io la te  the ordinance, i f  

that is  the ordinance Your Honor i s  thinking o f.

Justice Black: Well, what you are saying is  that whether 

the man did i t  because the lav; compelled him to do i t  or w hether^^  

he did i t  because he wanted to i s  immaterial to proving the 

crime.

Mr. Davis: I t  is  a defensive matter. Your Honor.

Justice Black: A defensive matter, and that the burden 

would be put on him?

Mr. Davis: That is  correct, s ir .  He has not even put 

i t  in issue, irrespective of whose burden i t  is ;  i t  i s  not even 

in issue in th is  case here.

Justice Black: Have you cited  any cases to that e ffe c t

with reference to a defendant —

Mr. Davis: I c ited  i t



241

Justice Black: (continuing) — affirm atively proving on 

his part that which i s  an essen tia l element of a crime, assuming 

that choice i s  an essen tia l element of a crime?

Mr. Davis: Your Honor, perhaps I made th is  mistake. I 

assumed that i t  was not a question for debate. To me i t  is  

similar to a plea of contributory negligence. I could sue Your 

Honor i f  he ran into me.

Justice Black: You do not plea contributory negligence 

in cases or in offenses for which they can be sent to j a i l  for 

s ix  months.

Mr. Davis: No, but b a s ic a l ly  you have affirm ative matter 

and defensive matter. You are the defendant in th is  thing -«•

Justice Black: X have always stuck very tenaciously to 

the idea that the business of government, whether i t  is  c ity  or 

sta te , is  to prove the g u ilt  of the defendant beyond a reasonable 

doubt.

Mr. Davis: Prove that he committed the act charged.

Justice Black: Beyond a reasonable doubt.

Mr. Davis: Yes, s ir .

Justice Black: Well, you would not have to prove he shot 

somebody. Y0u have to prove that he shot somebody with malice 

and deliberation, and so forth.

Nov;, he would not have to plead any of that, would he, as 

a defense?

Mr. Davis: Well, I do not know.



ec8 242
Justice Black: Why so?

Mr. Davi3: I don't know that I am in  accord with His 

Honor in that proposition, although i t  i s  not exactly the 

question here.

Justice Black: What about an a lib i?  Does he have to plead 

sp ecia lly  an alib i?

Mr. Davis: Wo, s ir ; because he pleads not gu ilty , which 

means "I didn't do i t ,  and i f  I can show I v/as somewhere e lse  

at the time, then certain ly  the jury can assume, using i t s  

common experience and common sense" he wa3 somewhere e lse , and 

he sure didn't do i t .

Justice Black: What he can prove — i f  he i s  not gu ilty  

— i t  i s  a sta te problem, and I am interested , and I w ill  have ^  

to confess my in terest — what he charges here i s  i f  he is  not 

gu ilty , he may say he is  not gu ilty  of being there or staying 

or he may say, "I am not gu ilty  of staying there after the 

owner of the property, not because he wanted to , but because 

the sta te  made him, ordered me co leave."

tlr. Davis: Well, our position  i s  that he simply says,

"I am not gu ilty  of what you say I did."

We say he did — or there are two elements to what we say 

he did. Number one, he v/as on the premises? he v/as told to 

leave.

Number two, he refused to leave.

Justice Black: Suppose he had been told to leave by a man



ei:9 243

who came in from the street?

Mr. Davis: Well, they don’t  say that was a fact that they 

concede.

Justice Black: Suppose i t  was?

Mr. Davis: I think I mention in my b rief i f  that situation  

existed  I did not fe e l lik e  the ordinance had been v io lated .

Justice Black: You think the ordinance had been violated?

Mr. Davis: 1 didn't think i t  would be v io lated . I said  

that in my b r ie f. But they make no such contention in th is  

case.

Justice Black: I see.

The Chief Justice: Mr. Davis, you c ite  your Alabama code

1940, T itle  7, Section 225, and you quote as follows:

"The defendant may plea more pleas than one without

unnecessary repetition? and, i f  he does not rely  so le ly

on a denial of the p la in t i f f ’s cause of action, must

plead sp ecia lly  the matter of defense."

That sounds to me more lik e  a c iv i l  proceeding than a 

criminal proceeding. Does th is sp ec if ica lly  apply to criminal 

cases?

Mr. Davis: Now, that particular code section applies to  

c iv i l  cases.

The Chief Justice: To c iv i l  cases?

Mr. Davis; Yes. In our b rief we have developed i t s  appli-

cation in th is  case. But —



etiO 2 4 4

The Chief Justice: Is there any case that holds that 

these c iv i l  rules apply to criminal cases?

Mr. Davis: Rules of evidence — we do not have a whole 

f ie ld  of law.

The Chief Justice: Is  there any one case chat you cite?

Mr. Davis: No, s ir ;  no. But even under criminal law, i f  

you wanted to come in and say that a person was insane, you 

would put in a plea of insanity . Or i f  you wanted to plead 

i t  was involuntary, i t  was an involuntary act, where he was 

charged with, perhaps, murder, you want to show i t  was an in­

voluntary act, you would have to do something — you admit he 

did i t ,  and i t  i s  sort of like confession and avoidance. You 

admit he did the act, but, and then we avoid the act even in 

criminal law. This happens to f a l l  on the c iv i l  side.

Justice Black: The elements of f ir s t  degree murder down 

there is  premeditated and with malice aforethought.

Mr. Davis: That is  right, s ir .  I t  i s  presumed from the 

homicide.

Justice Black: That he does — I am not talking about 

what inference they can find from the evidence that i t  was done 

with malice aforethought; but do you mean that the burden was 

on the defendant to show he did not do i t  with malice afore­

thought?

Mr. Davis: Of course, the burden i s  on him, yes, s ir .  

Well, I w il l  c e ll  you th is , there i s  a presumption.



245

When I pull out a weapon and I f ir e  i t  at a man, they do 

not have to go beyond that and say, “Oh, but in h is heart, 

his heart v/as black, he intended to do it ,"  and, why, the ev i­

dence speaks for i t s e l f .

But i f  I wanted to show that somebody drugged me with 

something or disturbed me to a p itch of insanity through some 

process, I would come along and set that up as a defense. But 

certain ly  the sta te i s  not going to say that a l l  of these 

various defenses did not happen because they were not within  

their case.

Justice Black: I f  i t  i s  a question maybe i t  i s  too 

far a fie ld  from your case — i f  i t  i s  a question of showing 

ic  was done with deliberation and malice, forgetting the v/ord 

"presumption", the court always charges the jury, doesn:t  i t ,

"You must find from the evidence that he did i t  deliberately  

and with malice aforethought, and find i t  beyond a reasonable 

doubt without regard to pleadings?"

Mr. Davis: I think that i s  in the indictment; yes, s ir .

So I think they generally v /ill show some motive involved with i t .

Justice Clark: I would lik e to come back to my question. 

Assuming that he was supposed to f i l e  a specia l p leading,, and 

assuming that the s ta te 's  proof v/as su ffic ien t co withstand a 

motion for a directed verdict of not gu ilty , v/ould i t  be per­

m issible for the defendant, in examining, in puttingcn his 

evidence, to o ffer the proof that he said he wanted to offer



2H6

with reference to Mr. P iz itz ' policy?

Mr.Davis: Assuming that i t  was a proper form of plea or 

i t  wa3 a proper issue, I think so.

Justice Clark: Well, assuming that he did not raise i t  

by plea at a l l ,  just lik e the case here, and that he was supposed 

to ra ise i t ,  and that your proof or the s ta te 's  proof was 

su ffic ien t to go to the jury. Could he, in rebutting your 

proof of trespass — I guess you would have to prove i t  was a 

trespass, wouldn't you?

Mr. Davis: Yes, s ir ; he remained after you warned him to 

leave.

Justice Clark: Now, assuming that, in common parlance, 

you would c a ll  that that you had met a prima facie proof in a 

c iv i l  action —- I suppose there i s  no such thing in a criminal 

action — and you were able to —

Mr. Davis: Yes, s ir .

Justice Clark: (continuing) — and you were able to go 

to the jury on that. Could he rebut that prima facie  proof by 

offering proof, as I understand i t ,  which i s  on page 25, Mr.

P iz itz , w ell, assumed no such policy of segregation, and that 

he wanted these people here, and indeed he invited them to come in?

Mr. Davis: I think i t  was in the form of a plea or any 

pleading instrument —

Justice Clark: I raean, suppose he didn't plead i t .

Mr. Davis: No, sir? I don't think so.



247

Justice Clark: The evidence v/ould not be admissible?

Mr. Davis: I am certain not in Alabama? not in Alabama.

Justice Clark: The Judge did not dwell on that ground,

Mr. Davis: Pardon?

Justice Clark: The Judge did not dwell on that ground.

He said i t  v/as not material?

Mr. Davis: Well/ what he said was, as X understood v/as, 

that the w itness, v/ho v/as an employee of the store, h is knowledge 

of the lav/ v/as not competent rea lly . Later on he said i t  v/as 

not competent or material.

Justice Clark: Well, this i s  the Court's statement on 

page 25:

"The action of P iz itz  i s  not material as I conceive it ."

That i s  what he said.

I f  that were true, i t  looks lik e  to me he would have said, 

"Well, you didn't plead th is  so the evidence i s  not admissible."

Mr. Davis: Well, I think the court v/as right in  th is  

particular instance where i t  v/as not made an issue, and they 

have the right to draw the boundary lin es on th is  dispute. As 

i  said before, they have handled; more of these cases than X have.

Just ice Clark: That would not be trying to meet your 

burden or, X mean, meeting your burden of showing trespass, 

that wouldn't be trying to reach your burden, I mean, trying to  

counteract your burden or your proof?

Mr. Davis: No, s ir ,  We only had the tv/o elements to



e t l4 246

prove: one, that they were told  to leave, and two, they refused. 

That was the only burden on the sta te  or on the c ity , because 

they did not f i l e  any pleadings. They f ile d  a l l  sorts of other 

things, very extensive pleadings, but they elected  to go to the 

issue — to try i t  on a general denial.

.the Chief Justice: Where can we find any discussion in  

any cases of the Supreme Court of Alabama or in any textbooks 

on tne requirement to f i l e  special pleadings in criminal cases 

in your state?

Mr. Davis: In criminal cases?

The Chief Justice: In criminal cases; yes, s ir .

Mr. Davis: Your Honor, we have in the Code forms of pleas 

to f i l e  in  criminal cases. I think they assume —

The Chief Justice: Why don't you c ite  them in your b rief  

instead of c itin g  i t  in general language such as there i s  in 

page 25?

Mr. Davis: Well, I stuck to the c iv i l  rules which we: 

contend th is  case comes under and the Court of Appeals cited  

cases. I t  i s  in the opinion of the lower court, in the case 

of Alabama —

The Chief Justice: That is  the only time that such a 

thing has been discussed in the history of Alabama?

Mr. Davis: Ho, s ir .  I c ited  two cases th is  morning where, 

on appeal, y>ur c iv i l  rules apply, F iorella  versus City of 

Birmingham which came to th is court on a writ of certiorar i.



et!5

4 249

Senator Glen Taylor:s case versus the City of: Birmingham 

came to th is  Court; p etitio n  for certiorari was denied. But i t  

i s  true in a l l  of these cases. These cases follov; c iv i l  rules 

in Alabama.

They had another case before th is  one came to th is  Court 

where the c iv i l  rules on the record did not get to —

The Chief Justice: That is  because you c a l l  i t  a quasi- 

criminal act.

Mr. Davis: Well, I never have rea lly  liked the word 

"quasi-criminal"» How much is  quasi? I do not know.

The Chief Justice: That i s  what 1 was wondering about 

because Justice Black was asking you about a f ir s t  degree 

murder case, and there you said there would have to be a special 

pleading. So i s  that under the c iv i l  ru les, too?

Mr. Davis: Mo, s ir ; I am sure i t  i s  not.

The Chief Justice: What sec of rules?

Mr. Davis: But under the common law rules, under the same 

rule enunciated by an ear lier  court here in H ill versus 

Mendenhall, that the parties have got to be apprised of what 

the issues are, and the Court has got to know.

Justice Black: Have you read the case of s ir  Leland versus 

Oregon, where we had up the question of whether they could put 

the burden of proof on a man to  prove insanity, and the Court, 

the majority of the Court, held they could in insanity because 

they had always — i t  had always been done, but point to the



e tl6 250

fact that the Court, th is  Court, had held that the Government, 

the Federal Government, must prove every sing le  element of the 

crime.

Mr. Davis: Oh, I think we must prove every essen tia l  

element of the crime.

Justice Black: There is  no difference? Maybe I have not 

quite understood. Is there a difference in your mind that 

pleadings are required in an appeal from a Recorder's Court, 

which th is  was, wasn't it?

Mr. Davis: Yes, s ir .

Justice Black: Is there a difference in your mind that 

the pleadings that a defendant i s  required to put in in a case 

in the Recorder's Court where he has been convicted of an offense 

lik e th is  in  the rules that would be applied i f  they were 

charged with a sta te crime or misdemeanor?

Mr. Davis: I think generally the same rules apply. But, 

of course, i t  i s  sp ec ifica lly  stated that these cases are 

quasi-criminal cases.

Justice Black: Oh, I understand that.

Mr. Davis: I don't see - -

Justice Black: I agree with you on that.

Mr. Davis: I don't see but two basic differences in making 

i t  quasi-criminal and c iv i l .  One i s  in c iv i l  a motion to exclude 

the evidence must — i t  won't lie?  i t  must be a motion for an 

affirm ative charge. There was another that s l ip s  my mind, but



etl7 251

chore is  no real basic difference that I see in  our pleadings.

Justice Clark: I suppose they could have offered co prove 

that there was not a trespass, couldn't they?

Mr. Davis: Well, they should have proved either one of 

two things. They were not asked to leave or when they were 

asked, they did leave. But they conceded those conditions 

existed , and we met that burden of proof.

Justice Clark: Well, i f  that b e  true, could i t  have been 

that Mr. P iz its  did not want them to leave, that he was acting  

under a sta te requirement of lax*;?

Mr. Davis: Of course, Mr. P iz its  himself did not te s t ify .  

Somebody was simply quoting him stating what he assumed he 

meant in  th is  thing.

Justice Clark: X mean they offered to prove, as I under­

stand the tr ia l  —

Mr. Davis: Xf they put in a plea of sta te  action, they 

would have been able to come in and sa tis fy  that.

Justice Clark: Your burden was to prove chat there was 

a trespass, and i t  was up to them to prove that there was not a 

trespass; that i s  what you say?

Mr. Davis: In essence, yes.

Justice Clark: And now, in trying to prove that i t  was 

not a trespass, would i t  have been appropriate for them to 

offer to prove that Mr. P iz its  instead of ordering them out, 

indeed, wanted them to stay, and the only reason he told  them



etlS
252

to go out was because of sta te law?

Mr. Davis: I would have said that would have been very 

good tr ia l  strategy to have Mr. P iz itz  up there to t e s t ify  and 

to put in a plea to that e f fe c t , to le t  the Court know i t  was 

an issue, were they in fact ever told  to leave, and did they, 

in fact, ever leave after they were told .

Those were the two issues there, and they could have put 

the issues in, and I think i t  would have been in issue; and, 

m race, I think i t  would have been advisable for them to have 

him say, and he could have said, "Why, no, I want them s it t in g  

at the lunch counter0 I want them there, but th is  confounded 

c ity  ordinance won't le t  me." But that i s  not in th is  record.

Justice Black: Of course, p ractica lly  speaking, I suppose 

chere would be some strong persuasive argument against construing 

an ordinance in such a way that the g u ilt  or innocence of a 

person could be determined on the inner, unknown, hidden motives 

that prompted the man to give the order. That would not be a 

very satisfactory  way, would it?  X am not saying vou have 

advocated that.

Mr. Davis: No, s ir .

Justice Black: 1  am just thinking about that as a rule of
law.

Mr. Davis: I am not completely clear on what h is Honor 

has reference to„

Juscice Black: What 1 mean i s  th is: suppose i t  does depend



etl9
253

#5

on your having to prove whether he did i t  for one reason or 

another. The only way to prove that would be to prove whac 

v/as in h is wind.

Mr. Davis: Prove a mental operation.

Justice Black: That would be pretty d if f ic u lt .

Mr. Davis: Yes, s ir ; I think i t  would.

Justice Black: Sometimes the law resorts to th at, but 

not unless i t  has to, doesnct  it?

Mr. Davis: Yes, s ir .  Mental operations, I think we get 

into quite a dangerous f ie ld .

The Chief Justice: Mr. Davis, suppose you had a simple 

assault with a deadly weapon case, and the sta te  proved that 

the defendant used a wrench, le t  us say, and assaulted a person 

with i t ,  and then rested.

That would incorporate a l l  the things that are ordinarily  

necessary in order to prove an assault with a deadly weapon, 

wouldn't it?

Mr. Davis: Yes, s ir .

The Chief Justice: How, suppose chat the defendant wants 

to prove se lf-d efen se . Is he obliged under your law to  f i l e  

a specia l pleading?

Mr. Davis: Not in writing i s  my impression in the criminal

side.

The Chief Justice: Well, do these rules make a d istin ction

between w riting and orally?



254

Mr. Davis: Well, pleadings must be f i le d  in v/riting, 

generally speaking.

The Chief Justice: Why do you d ifferen tia te  between them?

Mr. Davis: I do not knot/ on the criminal level,, and that 

i s  why I went to some extent in pointing out these things as 

being c iv i l ,  that they v/ere c iv i l ,  in  my b r ie f, because I think 

in the rules we travel, we go pretty much on the common lav; 

in the criminal cases. We simply prescribe the forms of pleas 

in criminal cases, i f  you want to put them in issu e .

Self-defense, I think, is  just a matter of argument and, 

of course, i t  would — X do not think i t  would even require a 

plea because the defense said he did i t ,  but noc without some 

provocation* In ocher words, i t  negatives in  i t s e l f  se lf-d efen se.

The Chief Justice: Don't you get right back to the same 

thing here?

Mr. Davis: I don't think so.

The Chief Justice: Where you prove that he was told  co 

leave and he does not leave, he says "there was a reason other 

than the lawful reason as to why th is  man put me o ff  h is property." 

Isn 't  that equivalent? You said a l i t t l e  while back i t  was 

equivalent to contributory negligence. Well now, why is n 't  

that ju st as much a plea under the general issue as self-defense?

Mr. Davis: Your Honor, I cannot answer your question in 

a l l  of the fringe areas. I w ill  just have to admit I cannot.

The Chief Justice: A ll right.



255

Justice Goldberg: Mr. Davis, may I ju st ask you th is;  

i f  you v /ill refer to your ordinance, which is  in the record at 

page 58, v/ould i t  not be a v io lation  of your ordinance as i t  

reads on i t s  face for any of these defendants to have refused 

to leave after being warned by the p o lice , independently of 

what the store ov/ner said?

Mr. Davis: I v/ould not go that far personally, s ir .

Justice Goldberg: Doesn't the ordinance say that?

Mr. Davis: I t  says after being warned. I think we have 

to assume, i t  comes in our code under the chapter heading of 

trespass and, of course, trespass assumes there i s  a proprietary 

in terest, and I do not know how we could assume that the police  

o fficer  had any proprietary in tere st. So i t  would not be a 

trespass.

Justice Goldberg: The ordinance i t s e l f  does not require 

then the warning to be by the owner?

Mr. Davis: I think by implication you v/ould have to con­

strue i t  that way in context as a trespass order by some agent, 

designee o f the person in possession or at lea st the possessory 

in terest must be greater than that of the customer who is  

directed to leave.

Justice Goldberg: In other words, what you are saying here 

i s  the ordinance does not say so, but i t  would have to be con­

strued that way.

Mr. Davis: I think you v/ould have to .



e t 22 256

Justice Goldberg: But wasn't the complaint here based 

upon the ordinance, and the complaint i t s e l f  also did not say 

anything about the owner. So is n 't  the non-guilty plea then 

putting in issue a l l  that was put in issue by the complaint?

I f  you w ill  refer to the complaint, the complaint also does 

not say who did the warning. I t  just says after being warned 

not to do so.

Mr. Davis: That followed the language of the order, after 

being warned0

Justice Goldberg: So from the standpoint of the pleading, 

going back to the point we have been discussing, didn't the 

not gu ilty  plea put in issue everything that the complaint 

alleged?

Mr. Davis: That is  right, sir? yes, s ir .  7«id i f  someone 

other than a person in authority had ordered them o ff , that 

would be in issu e . Me must prove that they were warned, and I 

think i t  goes without saying that a proprietary in terest must 

be involved, and that person warned.

Justice Goldberg: Must you prove then that they were 

warned and, in fact, ordered o ff  by the defendant and not by 

the sta te  — by the owner and not by the state?

Mr. Davis: No, s ir .  I think' the evidence shewed that

these were employees, which they concede? they have never denied 

that. They do not ra ise any issue that some stranger or some 

policeman ordered them o ff the premises, and I do not think



23 257

the o ffic ers  could order them o ff . They took the reports after  

talking with people there.

The Chief Justice: Very w ell, Mr. Davis.

Mr. Davis: Thank you, s ir .

REBUTTAL ARGUMENT ON BEHALF OF .

JAMBS CODER, - ET AL., PETITIONERS,

1>3Y MSS. CONSTANCE BAKER MOTLEY 

The Chief Justice: Mrs. Motley.

Mrs. Motley: Mr. Chief Justice, I think the controlling

consideration i s  whether the Court below or the highest Court 

of the sta te which could have rendered an opinion or did render 

an opinion, considered and disposed of the Constitutional 

issues which we are here presenting to th is  Court, and on page 

61 of the record the Court in the la s t  paragraph of i t s  Opinion 

says:

"Counsel has argued among other matters, various 

phases of Constitutional lav/, particularly as affected  

by the 14th Amendment of the Federal Constitution, such 

as freedom of speech, in regard to which counsel sta te:

'What has become known as a "sit-in" is  a d ifferen t, but 

w ell understood symbol, meaningful method of communication.1" 

Then the Court says:

"Counsel has also referred to cases pertaining to  

r e str ic tiv e  covenants. We consider such principles en­

t ir e ly  inapplicable to the present case."



e t24 256

On page 60 of the record they point out that they consider 

in th is  type of proceeding, because the c iv i l  rules govern on 

appeal, the matters raised and argued in the b r ie f.

The Chief Justice: Where does that appear, what page?

Mrs. Motley: In b r ie f, counsel for appellant argues that 

the complaint is  in su ffic ien t, not settin g  forth — I am sorry, 

that i s  not i t .  I t  i s  page 59:

"This being an appeal from a conviction for v io la tin g  

a c ity  ordinance, i t  i s  quasi-criminal in nature, and 

subject to rules governing c iv i l  appeals. Accordingly, 

we w ill  lim it our reviews to errors assigned and argued 

in appellant's b r ie f .”

And, of course, they c ited  a number of Alabama cases.

Justice Black: Does that mean — and I think maybe i t  

does — that in criminal cases now, what they c a l l  criminal, 

sta te  cases, they are cried by f i le d  assignments of error? I 

am sure that i s  true in cap ital cases. Does that d istinguish it?  

Mrs. Motley: I rea!3.y do not know.

Justice Black: I t  has to assign error.

Mrs. Motley: I assume that i s  what i t  means» I t  appears 

chat i s  what they mean. But a l l  you have to do i s  — "well, 

accordingly, v/e w il l  lim it our review of errors assigned," so 

chat errors were assigned.

Justice Black: And argued in  appellants' brief?

Mrs. Motley: And argued in appellants5 b r ie f.



259

Justice White: As a matter of fact, unless they Eire argued 

in the b rief they could not consider them.

MrSo Motley: That i s  correct; and in these matters, 

particularly the 14th Amendment question, was certain ly  assigned 

as error and argued in  our b r ief, and considered by the Court 

and disposed of by the Court.

Justice Brennan: Well, what you are saying, Mrs. Motley, 

i s  that even i f  Mr. Davis were right about the procedural 

point he makes, in fact the Supreme Court paid no attention to  

them, but considered everything that you raised in  your b rief  

and decided them and, therefore, we do not have any problems 

before us of procedures.

Mrs. Motley: That is  right, s ir .

Justice Brennan: Of procedural irregu larity .

Mrs. Motley: That i s  right, s ir .

Justice White: Except that the Court said there was no 

issue in the record about the ordinance.

Mrs. Motley: Yes, and on that point we say you have the 

statute which says the court must take ju d ic ia l notice.

Justice White: But the court did not.

Mrs* Motley: But i t  did not. But th is  Court can take 

ju d ic ia l notice.

Justice White: Do you have a case for that? Do you c ite  it?

Mrs. Motley: Yes, we c ite  i t  in our brief*

Justice Brennan: Is that one of our cases?



260

Mrs. Motley: Yes, 1 believe i t  i s .

Justice White: Is  that the one that says that the Court —

Mrs. Motley: Our p etitio n  for certiorari, I am sorry,

in our p etition  for certiorar i.

Justice White: Well, that case says that th is  Court takes 

ju d ic ia l notice of the law of several sta tes to the same extent 

that such notice is  taken by the Court from which i t  comes -

Mrs. Motley: Yes. Well, what I am saying is  that here 

the Court was required by the sta te lav; to take ju d ic ia l notice 

of th is  ordinance.

Justice White: The Court did not quite say that, Mrs.

Motley. The Court said that no issue about the ordinance was 

raised. Wow, i f  an issue had been raised, and they had fa iled  

to introduce the ordinance into the record for some reason or 

another, they iuX be .required, i t  might be required of the 

Court, to  take ju d ic ia l notice of i t .  But they say the issue  

about the ordinance was not raised, which is  a d ifferent question.

Mrs. Motley: Well, I think we did rea lly  more than that.

We said to the Court, "Our whole defense i s  the ordinance," and 

I think when we said that we were saying everything that we 

were required to in  th is  kind of a proceeding, to advise the 

Court and the other side of what oir theory was.

Justice Brennan: Well, sp ec ifica lly , Mrs. Motley, in your 

b rief to the Supreme Court of Alabama, did you challenge the

ordinance?



261

Mrs. Motley: In the b rief I believe they did mention i t ,  

because the Court i t s e l f  says that i t  was not raised by a 

pleading. "You are here arguing i t ,  but i t  wasn't raised by 

a pleading." That i s  the way they treated i t .

Justice Brennan: But didn't they, in fact, consider it?

Mrs. Motley: Well, they considered i t  in the sense that 

they said, "Here you are arguing i t  and you didn't put in a 

pleading. We think i t  should have been raised by a plea."

Justice Brennan: And, therefore "We w il l  not decide any 

of the questions raised."

Mrs. Motley: That is  r igh t.

Justice Brennan: That v/as what they said.

Mrs. Motley: As to that ordinance. But then they went on 

to decide that th is  case was not governed by the r e s tr ic tiv e  

covenant cases, and the only reason we were c itin g  the ordinance 

was to show that there v/as sta te  action in v iolation  of the 

14th Amendment. But again even i f  the ordinance were not in­

volved here we would s t i l l  be properly before th is  Court on 

Shelley against Kraemer because there v/as th is  massive sta te  

policy of racia l segregation which we say compelled the owner 

to put these people out, and a sta te cannot escape the responsi­

b i l i t y  for that.

Justice Harlan: I would lik e  to ask you txvo questions.

In your b rief to the Supreme Court, did you raise sp ec ifica lly  

the exclusion or the alleged exclusion of inquiry respecting



e i 2 8 262

the sta te  ordinance, the c ity  ordinance as error? Did you raise  

that as error?

Mrs. Kotlev: Just a moment.

Justice White: I do not see i t  in your assignment.

Mrs. Motley: I  d o  not believe i t  was, Your Honor, raised  

as such.

Justice Stewart: Are the assignments of error in the 

record?

Mrs. Motley: The exclusion of evidence as co that —

Justice Harlan: 1 ara talking about the b r ie f .

Mrs. Motley: The b r ie f, that I do not have a copy of here.

Justice Harlan: Was i t  raised?

Mrs. Motley: so I cannot answer that with defin iteness  

that i t  was so raised.

Justice Harlan: 2 wonder, with permission of the Chief 

Ju stice , i f  you could leave a copy of the b rief in the supreme 

Court.

Mrs. Motley: Yes, we w ill  leave a copy of the b rief that 

was presented in the Supreme Court of Alabama.

How, I wanted to point out with reference to a question 

asked me ear lier  by Mr. Justice Goldberg, there was in the 

record a stipulation  that the rulings made in the f ir s t  case 

would apply to a l l  other cases, and that appears on page 106 

of the record, and on page 122 of the record. Hot that just 

the pleadings would be the same, but the rulings which he had



263

made in the f ir s t  case were the rulings in the other cases, 

and that i s  why they did not again ra ise that question as to the 

ordinance.

Justice White: What page was that again?

MrSo Motley: 122.

and then, as I have said before, in closing, th is  ordinance 

i s  ju st a part of a massive sta te  policy here of rac ia l segre­

gation, and the owner v/as influenced and compelled by th is  

policy to refuse service to these p etition ers at th is  counter, 

and the sta te  bears fu l l  resp on sib ility  for the owner's ex­

clusion, whether he sp ec if ica lly  re lied  on the ordinance or 

not, because here was the sta te policy which compelled him to  

exclude these people from the counter, and we say that for 

th is  reason the 14th Amendment i s  c learly  violated  here, and 

the sta te  certain ly cannot escape resp on sib ility  u n til such 

time as i t  takes affirm ative action to change that policy, such 

as has been done in  other Northern sta tes , by enacting c iv i l  

rights laws.

I think the influence of the s ta te :s design to se t up a 

segregated society  i s  what i s  controlling here.

Justice Brennan: Are these exclusions s t i l l  on a racia l 

basis at these counters in Birmingham?

Mrs. Motley: Yes, they are, s ir .  They are not lik e  the 

other cases where the policy  has been abandoned.

Justice Stewart: X did not quite understand your la st



point- I f  the State of Alabama and a i l  i t s  m unicipalities  

should repeal a l l  statu tes and ordinances which require segre­

gation, you would s t i l l  be making the argument you make here.

You say the sta te  would have to go further and pass leg is la tio n  

requiring integregation before you —

Mrs. Motley: I think i f  those laws were repealed, with 

the understanding and preamble to the repeal, that th is  was 

done to  do away with sta te  enforced segregation —

Justice Stewart: Right.

Mrs. Motley: (continuing) — we would have a d ifferen t 

situ ation .

But as long as the s ta te 's  policy  i s  there on the books, 

th is  i s  the thing which we say influences discrimination in a 

public place of th is  kind, whether the statute or ordinance 

sp e c if ic a lly  says department or drug store or whatever the 

situation  may be; that the s ta te 's  policy  i s  there, and that is  

the operative consideration which makes the person exclude you, 

and u n til the sta te  shows come affirm ative change in that policy, 

that influence i s  s t i l l  there, we would say.

Justice Stewart: Itfhat I did not get, and I s t i l l  do not 

get, Mrs. Motley, was your reference to the affirmative le g is ­

lation  in  requiring non-segregation.

Mrs. Motley: Well, what I  have in mind i s  that here 

Alabama has not —

Justice Stewart: As there is ,  there i s  much of that



265

le g is la tio n , of course, in various s ta te s .

Mrs* 'lotley: That i s  r igh t. Alabama in th is  case has 

not required equal treatment of Negroes in  places of public 

accommodations, as th is  Court, in deciding the C iv il Rights 

cases, assumed that the sta tes would. You remember the C iv il 

Rights cases were cases where they said, "We assume that the 

sta tes would protect you against th is."

Well, th is  i s  not true in Alabama and these other sta tes . 

The sta tes , of course, have done just the opposite, and they 

have done i t  in a massive way so that the whole society  i s  set  

up on a segregated b asis, and th is  influences the determination 

of businessmen in the sta te , and we say that the sta te , in  

order to get away from or escape resp on sib ility  for th is  

enforced segregation, v/ould have to do something more affirma­

tiv e  than i t  has now up to th is  point. I f  i t  does not protect 

us against policy  which i t  has se t up.



et32 266

The Chief Justice: No. 67, F. L. Shuttleswor.th, p etition ers  

versus City of Birmingham. Mrs. Motley, you may proceed with 

your argument.

ARGUMENT ON BEHALF OF F. L. SHUTTLESWORTH,

ET AL., PETITIONERS,

BY CONSTANCE BAKER MOTLEY

Mrs. Motley: Mr. Chief Justice, and may i t  please the 

Court, in th is  case p etition ers are two Negro m inisters here 

on the granting of certiorari by th is  Court to review their  

convictions by the Alabama State Court on a charge of in citin g , 

aiding or abetting the v io lation  of the trespass after warning 

ordinance which we have ju st discussed as the basis of convic­

tions of these students in the preceding case.

Now, the ordinance in th is  case also appears on page 2 

of our b r ie f. I t  i s  a very short ordinance which reads:

"It sh a ll be unlawful for any person to in c ite , or 

aid or abet in, the v io lation  of any lav? or ordinance of 

the c ity , or any provision of sta te lav;, the v io lation  of 

which i s  a misdemeanor."

Nov/, the records on which the sta te  seeks to sustain these 

convictions contain only the testimony of a Birmingham city  

detective, and th is  detective did not himself personally witness 

any of the facts to v/hich he te s t if ie d  on these t r ia ls .

He was present in the Recorders Court when these p etitioners  

in th is  case were on t r ia l ,  and he te s t if ie d  in Circuit Court



267

on the new tr ia l  as to what he heard other w itnesses say in  

the lower Court*

How, the entire testimony in the record in th is  case is 
very brief*

The f ir s t  p etitioner is  Reverend Shuttlesworth. The t e s t i ­

mony as to what Reverend Shuttlesworth, the detective said, 

was that Gober and Davis, p etition ers in the preceding case, 

te s t if ie d  that they cook part in these s i t - in  demonstrations 

on March 31, 1960, and that they went to Reverend Shuttlesworth!s 

house the preceding evening and discussed s i t - in  demonstrations.

Reverend Shuttlesworth was present, h is wife was present, 

several other students were present, and the second petitioner  

in th is  case, Reverend 3 illu p s , was present*

h t  th is  discussion somebody prepared a l i s t  — now, who 

prepared i t  or what the l i s t  was the record does not show.

The only other fh ing the record shows i s  that Reverend 

Shuttlesworth asked for volunteers and, at one point, said or 

announced that he would get them out of j a i l .

MOW, on that testimony Reverend Shuttlesworth has been 

sentenced to  180 days at hard labor, and a fine of $100.

The testimony as to  Reverend B illups, the other defendant, 

the other p etitioner in  th is  case, Davis, one of the students 

in the preceding case, reportedly te s t if ie d  that Reverend 

Billups picked him up on the campus of Daniel Payne College 

which Davis attended, and drove him to Reverend Shuttlesworth:s



268

house, and that Reverend Billups was present during the d is­

cussion, What Reverend B illups said does not appear in the 

record at a l l .

From the record i t  appears that he said absolutely nothing, 

and on that evidence, Reverend B illups has been sentenced to  

30 days at hard labor plus a $25 fin e .

We say, f ir s t ,  that these convictions must be reversed 

because the record i s  devoid of any evidence to support a con­

v iction  that these p etition ers urged the v io la tion  of any valid  

lav/ o f the City of Birmingham.

What they were urging was a s i t - in  demonstration.

Now, in  order for th is  Court to  find that what they were 

urging was a v io la tion  of some valid  lav/ of the City of Birming­

ham, i t  seems to me that th is  Court w il l  have to find that 

a s i t - in  per se, as the court below found, i s  a v io la tion  of law,

Nov/, as the prior decisions o f th is  Court show, a s i t - in  

per se i s  not an unlawful a c t iv ity . In the Garner case, and 

in many sta te  report cases these convictions have been reversed 

or the p etition ers have not been convicted, and their cases 

have been dismissed. So that to urge somebody to participate  

in a s i t - in  demonstration i s  not in i t s e l f  a v io la tion  of any 

valid  law.

Justice Black: Why wouldn't i t  be, in your judgment?

Mrs. Motley: Because a l l  they are urging i s  a protest, 

in th is  case sta te  enforced segregation, and I think we have a



right to protest against state-enforced segregation.

Justice White: By a s it- in ?

Mrs. Motley: Yes. This i s  a method of communication.

In th is  case, these people went into th is  place and sat 

down in an orderly fashion. There were only two involved.

They didn‘t  carry placards into the place. Their a c tiv ity  was 

in protest? it was appropriate to the circumstances.

Justice Black: Was the charge proven that they went there, 

they were urged to go there and stay after the owner had know­

ingly advised them to leave?

Mrs. Motley: No. They te s t i f ie d  —

Justice Black: Was there evidence to that effect?

Mrs. Motley: Not in  th is  case.

Justice Black: In th is  case? that is  the one you are 

arguing, is n :t  it?

Mrs. Motley: That i s  r igh t. There is  no evidence that 

Shuttlesworth urged them to stay there u ntil they had been 

arrested and u n til they had been ordered to leave. There is  

no testimony, that is  what I am saying.

Justice Black: Would there have been a v io la tion  of th is  

ordinance, not the one conceded to  be invalid , but the one 

which i s  the basis of the other prosecution, would there have 

been any v io lation  of that ordinance to go in there and stay 

before they were told ro get out by the cwner? would they have 

violated any 3aw by going in there and staying before the owner



et36 270

told them to get out? Would they ha *e violated that c ity  

ordinance?

Mrs. Motley: In the circuros b.nces of the Gober case,

I think v/e have shown that the ow.iar ordered them out.

Justice Black: I am not ta king about Gober; I am talking  

about th is  one.

.'-s there any evidence in tl.:.s case to show that Shuttles- 

worth and th is  other man urged t/iem to go into the store and 

stay there even though the owner ordered them to get out?

Mrs. Motley: £"0 , s ir .

Justice White: Except the urging or whatever you mean bv 

a s i t - in .

Mrs. Motley: That i s  right.

Justice Black: Well, I don't suppose v/e could take 

ju d ic ia l knowledge that they arc going to stay there i f  they 

are ordered out, i f  chat i s  a valid lav/,

Mrs. Motley: I think that i s  d ifferen t. I chink they 

were going in there in that manaer co protest, chat is  true.

But there is  no evidence in th is case that Reverend Shuttles- 

worth said to them, "Stay there u ntil such time as you are 

ordered to get o u t ," or "Stay there u n til the p olice come along 

and arrest you." There ju st is  not any evidence in th is  record 

to that e f fe c t .

Justice Black: In other words, you are saying that taking 

a l l  their evidence as true, they did not prove any evidence



et37 271

through which i t  could be found that he urged them to go in 

there and break th is  lav; by staying after they were ordered to 

l e a v e 0

Mrs. Motley: That is  right; that i s  r igh t.

Justice Harlan: Doesnrt  th is  depend on what inferences 

a State Court permissibly can draw from the evidence that 

Shuttlesworth cold them, "I w il l  get you out of jail"? That 

is  the real question.

Mrs. Motley: Yes, s ir .  The State Court drew the inference 

there that Shuttlesworth had said "To stay there u n til you are 

arrested," and even the Court had d if f ic u lty  with that, because 

i f  you read their Opinion they were quite aware of the fact 

that there was no evidence that Shuttlesworth told  them to stay 

there u n til the police came.

What he actually said — i s  at the bottom of page 44, the 

second paragraph from the bottom:

"There i s  no question of the restr ic tio n  of any 

right of free speech or other assim ilated right derived 

from the 14th Amendment, since the appellant counseled 

the college students not merely to ask service in a 

restaurant, but urged, convinced and arranged for them 

to remain on the premises presumably for an in d efin ite  

period of timec"

And they used that word because there was no evidence in 

th is  record that Shuttlesworth said, "to stay there u ntil you



272

are asked to leave, stay there u n til the police came."

They might have gone in and le f t  after they were asked 

to leave, as far as th is  record is  concerned.

Justice Harlan: What finding, i f  any, did the t r ia l  court 

make on that from that evidence?

Mrs. Motley: The tr ia l  court?

Justice Harlan: Yes. Isn rt  th is  an appellate court you 

are talking about? I beg your pardon.

Mrs. Motley: This is  the Court of Appeals.

Justice Harlan: This is  the Court of Appeals.

Mrs. Motley: Yes.

Justice Harlan: What was the tr ia l  court:s finding, what 

did they find, i f  anything, on the significance of that portion 

of the statement?

Mrs. Motley: There v/as no opinion by the t r ia l  court in 

th is  case.

Justice Black: There v/as no jury?

Mrs. Motley: There v/as no jury. They were tried  before 

the Court without a jury, and convicted, found g u ilty , and the 

sentence imposed-

Justice Black: And no opinion of any kind, x>/as there?

Mrs. Motley: I do not believe there v/as, s ir .  Hone at 

the t r ia l  court le v e l. The only opinion i s  the Court of Appeals1 

opinion in th is  case.

I f  we should reverse the Gober case.The Chief Justice:



et39 273

#9

could th is  stand under any circumstances?

Mrs* Motley: I did not get the question.

The Chief Justice: I f  we were co reverse the Gober case, 

could th is  case stand under any circumstances?

Mrs. Motley: Wo, s ir .

The Chief Justice: That i t  was merely aiding and abetting?

Mrs. Motley: Yes. They were charged with aiding and 

abetting, yes, and the vio lation  of the trespass after warning.

I f  th is Court should find that the Gober convictions are 

invalid , I should think that these convictions would automatically 

f a l l .

The Chief Justice: Would automatically f a l l .

Justice Harlan: Does chat necessarily follow? Does that 

necessarily  follow?

Mrs. Motley: I f  th is  Court should free Gober?

Justice Harlan: Yes.

Mrs. Motley: And — yes, I think because a l l  they were 

charged with was urging or in citin g  and aiding and abetting 

Gober to commit a crime, and i f  he i s  found not to have committed 

any crime I should think that their conviction would f a l l .

Justice Harlan: Well, won't i t  depend on what ground the 

Gober case was reversed? Suppose the Gober case was reversed 

on the ground that the evidence was not su ffic ien t —

Mrs. Motley: Evidence wasn't su fficien t?

Justice Harlan: (continuing) — to permit the conviction



et40 274

of Gober. Does conviction under your aiding and abetting 

statu te , the statute v/e are concerned with here, depend upon 

proof that the substantive crime, which was "incited" —

Mrs. Motley: I see what you mean now.

Justice Harlan: (continuing) — was committed?

Mrs. Motley: Ho, s ir .  I think that i t  i s  correct that in 

and under a statute lik e th is  you do not have to prove a sub­

stantive crime was actually committed.

Justice Harlan: You do not have to prove i t .

Mrs. Motley: But i f  i t  can be shown they urged the v io la ­

tion of a valid  law, they are s t i l l  gu ilty  whether chat act 

was actually committed or not; yes, that is  true.

Justice Harlan: Therefore, you would have to qualify your 

statement, wouldn't you, that under a l l  circumstances a reversal 

in Gober would resu lt in a reversal here? I t  would depend on 

the ground.

Mrs. Motley: Yes, yes. I see what you mean now. Yes, 

chat is  true.

Justice White: Well, didn?t  the Alabama Court say that 

the Reverend was convicted even though a crime had not been 

committed?

Mrs. Motley: The actual — i f  the actual crime had not 

been committed, he could s t i l l  be convicted of a crime of in­

c itin g  a v io la tion  of a valid  law.

Justice White: Even i f  the v io lation  did not take place?



et41 275

Mrs. Motley: That is  r igh t. He could have been convicted 

of th is  section in  th is  case. But we say his conviction is  

invalid because there i s  no evidence that he urged a v io lation  

of any valid  lav;. A ll i t  shows i t  that they discussed s i t - in s .  

Now, a s i t - in  means, of course, that you go in , but i t  does not 

necessarily  mean that you stay there u n til you are asked to  

leave, and i t  does not necessarily mean he stayed there u n til 

the p olice are called , because these s i t - in s  have taken various 

forms, as the history of s i t - in  has shown. Some they have 

l e f t  when they were asked to leave, and they were not arrested.

Justice White: I suppose there i s  some question about 

anybody's a b ility  to in c ite  a v io la tion  of a trespass lav; in 

the face of a municipal ordinance requiring segregation.

Mrs. Motley: Yes. I think what happened here was the 

segregation ordinance, i t  must be considered, as we ask th is  

Court to consider i t  in considering th is  conviction, that what 

was rea lly  behind i t  was the segregation ordinance.

We ask the Court in th is  case also to take ju d ic ia l notice 

of that segregation ordinance in considering what was behind 

th is  situ ation .

Justice Brennan: Nov;, here was there any reference at 

a l l  to  that ordinance in th is  tr ia l?

Mrs. Motley: In th is  tr ia l  there was not, Your Honor. We 

only asked the Court to take ju d ic ia l notice of a law that 

the Court of the state could have.



et42 276

Justice Brennan: How about in the b rief on appeal?

Mrs. Motley: Pardon me?

Justice Brennan: How about in the b rief on appeal?

Mrs. Motley: Mo, I do not believe they raised that in 

the b rief on appeal in th is  case. But th is  Court now ju d ic ia lly  

knows certain ly from the preceding case that th is  ordinance 

i s  in the background of th is  situation , and what Shuttlesworth 

was urging, i f  he was urging anything, was a law of the City 

of Birmingham, a v io la tion  of i t ,  i t  was th is  invalid  c ity  

ordinance requiring rac ia l segregation, and certain ly  the law, 

even th is  ordinance, does not say, "You may be convicted for 

urging a v io lation  of an invalid  law."

Justice Brennan: Mrs. Motley, from what i s  said in the 

Court of Appeals at page 44 as in the Opinion, would i t  not 

appear that they sustained the conviction so le ly  on the "incite" 

language of the ordinance?

Mrs. Motley: Yes, i t  appears —

Justice Brennan: So that any aiding and abetting is  out, 

is n Jt  it?

Mrs. Motley: Well, they said that our b rief talked only 

about aiding and abetting, and forgot about in c itin g .

Justice Brennan: Yes.

Mrs. Motley: Mow, I do not know whether we can say they 

rested i t  so le ly  on that or not.

Justice Brennan: Well, i t  i s  not the clearest in the world,



277

but i t  docs look as though the Court said that in any event 

"we can sustain th is  on the incitement without reference to  

aiding or abetting."

Mr3. Motley: Yes. They said we just talked about aiding 

and abetting, and forgot about in citin g , and certain ly there 

was in c itin g  here to v io la te  a c ity  ordinance, and th is  is  what 

they found, and then, as I say, they went on to hold a s i t - in  

per se was an i l le g a l  a c tiv ity , and th is  is  the basis on which 

these people were convicted, just by a finding that i f  you go 

and s i t  in a place, and even i f  you leave, in other words, before 

you are asked, or you do not intend to go in there and stay 

u n til the police come, nevertheless, that is  a form of trespass, 

they say, after warning, just to go in a place and s i t  down.

Justice Harlan: Could I ask you one question before you 

s i t  down?

Mrs. Motley: Yes, s ir .

Justice Harlan: Assuming, and I am not suggesting i t  is  

so, but assuming, however, that one concluded that the evidence 

was su ffic ien t as to Shuttlesworth, could Billups be held on 

the evidence as having taken the students over to Shuttlesworth's 

premises, plus h is presence there as an aider and abettor of 

Shuttlesworth1s incitement, either under the provisions, the 

abetting provisions of th is  statute or some general accessory 

in the law that may be there?

Mrs. Motley: I would say, no, because there i s  nothing



et44 273

in the record that Billups did anything at a l l  except take th is  

man there and s i t  there.

I do not see how a man could be convicted of a crime, and 

i f  you read Gober's or Davis1 testimony, his testimony in the 

preceding case was that he asked Reverend Bil.ly.ps to drive him 

over there when he saw Reverend Billups on their campus«

Of course, that is  not in th is  record, i t  i s  in  the p re­

ceding record. But I do not think that th is  man B illups could 

be held gu ilty  of a crime because he sat in on a discussion  

where the record shows that he said absolutely nothing.

Justice Harlan: You have a general accessory statute in 

Alabama?

Mrs. Motley: Well, I do not know.

Justice Harlan: This is  Alabama, is  ic  not?

Mrs. Motley: I understand they do have a general statute.

Justice Harlan: Will you give me the citation?

Mrs. Motley: We do not have the c ita tio n , but I can furnish 

i t .

Justice Harlan: All r igh t.

Mrs. Motley: I would like to save the remainder of my 

time for rebuttal.

The Chief Justice: Mr. Davis

ARGUMENT OH BEHALF OF CITY OF BIRMINGHAM,

RE SPONDEE1?, BY MR. WATTS DAVIS

Mr. Davis: May i t  please the Court, I believe one of you



et45 279

#10

Justices just asked a question whether or not without the use 

of the word "incite" the p etition ers would s t i l l  have been in­

volved under the aiding and abetting language, and I have cited  

in my b rief the case of Davis versus State, 36 Alabama 2d, and 

th is i s  on page 11, i f  you have my b rief, in which the words 

"aid and abet" comprehend a l l  assistance rendered by actual 

words, encouragement or support.

Then I went on to say "nor is  i t  necessary to show pre­

arrangement to do the sp ec ific  wrong complained of."

Then I also c ite  the case of Pruett versus State, stating  

that aiding and abetting comprehend a l l  assistance rendered by 

acts, words of encouragement. And then also the participation  

in the crime, and a community of purpose, and perpetrators 

need not be proved by d irectly  p ositive  testimony, but i t  may 

be inferred from circum stantial evidence, and that i s  Parsons 

versus State, a l l  of which are set out on page 12 of the 

Respondent's b r ie f.

But actually I do not think there is  any especial s ig n if i­

cance in the use of the word "incite" except i t  might c la r ify  

i t  to some extent. But the State Courts, in construing i t s  

own statu te , have said that the actual words are su ffic ien t  

under the aiding and abetting without referring to the language 

of the word "incite".

Justice Brennan: Well, my question — I am basing th is  

on the language in the Opinion of the Court of Appeals.



280

Mr. Davis: I think I  can explain that, i f  the Court please.

Justice Brennan: I see.

Mr. Davis: There are b riefs which you do not have, and 

which I have read, which went to great lengths to say, "Well, 

they never proved that these students went out anywhere and 

committed any crime. How can you aid and abet somebody i f  

you have not established that they committed a crime?"

I pointed out in my brief they were overlooking the use 

of the word "incite". Of course, the use of the word "incite" 

i s  convenient in th is  case and then, of course, you do not need 

the Court decisions to read that in, the words "encouragement 

or aiding and abetting," so our ordinance simply sp e lls  out 

that in c itin g  i s  one of these alternate modes of offending the 

ordinance.

Justice Brennan: Well, you read the opinion as saying 

that the conviction can rest on the language "aid or abet"?

Mr. Davis: Oh, yes; yes, s ir .  "Incite" actually adds 

nothing, in our opinion. But they had gone on th is  lev e l that 

they had to aid and abet somebody to do a crime.

Justice Black: Crime?

Mr. Davis: That made i t  more convenient — w ell, an 

offense — and i t  made i t  more convenient to say, "Let us use 

the word ' in c it e ’ " that i s  a particular word, and you are 

overlooking and I am pointing that they are overlooking the

in c itin g  part*



et4'7 26l

But I think the word “incite" gives a flavor to the thing. 

At lea st, i t  warns you that you do not have to have a combina­

tion of th is  thing resu lt in come actual offense later on.

I f  I get out here and hold a meeting and I say, "I want 

you people to get out of here and I want you to go about th is  

plan of robbery or intimidation, th is , that or the other," and 

I may do my best co influence them, but my powers of persuasion 

are not always very successful, and they may change their minds 

But the point i s  I am in citin g  them. And the Court, under i t s  

decisions in the Court, says that I a.1so am aiding and abetting 

But they go on here and say that to aid and abet you have to  

have the actual commission of the crime.

As I point out in my b rief, many cases hold even under 

common lav; that th is  was an offense, and our position  i s  simply 

we had codified  what was the common law.

Justice Goldberg: Mr. Davis, where in th is  record is  

there any evidence, any evidence that Reverend Shuttlesworth 

incited  or aided or abetted anybody to do anything other than 

to s i t  in? I don't take i t  your contention i s  that a s i t - in  as 

such i s  i l le g a l  under the lav; of Birmingham?

Mr. Davis: Well, I w il l  say th is , the appellate court 

in  Alabama said that a sit-down — they use the word "sit-down" 

as contrasted with s i t - in  —

Justice Goldberg: Yes.

Mr. Davis: (continuing) — was comparable to the s i t



282

str ik es, and that evidently the connotation we used here — 

you see, these things were discussed at a meeting. Sit-down 

was used a l l  through the tr ia l ,  and nobody ever objected to 

i t .  Everyone understood the use of the word. The Court rea­

soned i t  was comparable to the Fansteel case wherein you had 

your s i t  down str ik es.

Justice Goldberg: But your charge here was v io lation  of 

Section 1346.

Mr. Davis: A trespass after warning.

Justice Goldberg: Trespass after warning.

Mr. Davis: And the Court, of course, construed that to  

be a sit-down.

Now, the question rea lly  i s ,  I assume, what is  a sit-down. 

Paramount to that question is  the question did the Court have 

the right to assume i t  knew what a s i t  -down was, and in th is  

case i t  did.

Justice Black: Suppose they had done precisely  what the 

Court of Appeals said, and nothing happened. Would they have 

violated  the law?

Mr. Davis: I don't think the Court of Appeals was as 

comprehensive in i t s  language as i t  might have been. I think 

i t  assumed that the parties in in terest in th is  thine knew 

that there was a warning involved in i t  a lso .

Justice Black: A ll I am saying i s  whether i t  i s  a crime 

or a quasi-crime, i t  has to be proved in court. What i s  charged



2<33

is  in c itin g  to v io la te  th is  section .

Mr. Davis: City ordinance.

Justice Blaclc: And you w il l  agree that that meant that 

they violated  nothing unless they were ordered to get out and 

they refused to go out.

Mr. Davis: That, i s  r igh t. They had to in c ite  them to  

v io la te  some c ity  ordinance.

Justice Black: He had to in c ite  them to v io la te  the whole 

thing., not merely going, but to stay there after they were 

invited to leave.

Wow, I have great doubts myself of finding any evidence 

o f g u ilt  anywhere on which — as Justice Harlan says, of course, 

the Court can draw an inference of in c itin g  to v io la te  the lav/, 

and that would be one thing. But I find i t  d if f ic u lt  to say 

that because they merely invited them to go there and stay 

even for a long time, that that i s  enough.

Mr. Davis: I agree.

Justice Black: R estrictions, I think to quasi-criminal 

actions have to be established to convict a man.

Mr. Davis: I agree with you, that just the suggestion that 

they go there and remain for a long time would not be su ffic ien t.

The essen tia l element is  whether or not he had contemplated 

when they went there that they would be told  to leave. F irst  

he asked for volunteers. Well, of course, just to go there and 

s i t  and leave when they went there, does not require volunteers.



et50 2d4

#11
but he assured them he would get them out of j a i l .

Justice Black: The burden of proof, you have to prove a 

crime by evidence. You cannot ju st guess.

Mr. Davis: I go along with Your Honor.

Justice Black: Of course, And here they said, "Go there." 

Well, I can w ell understand chat much can be accomplished in 

what they wanted to accomplish merely by going there and staying 

there and leaving.

Mr. Davis: I , perhaps, would be the f ir s t  to concede that 

th is  i s  not the strongest case I would like to have.

Justice Black: I am sure of th a t„

Mr. Davis: The question here i s  whether or not the. rule 

as set down in Thompson versus City of L ouisville , and as 

affirmed in Garner versus State of Louisiana is  s t i l l  in e ffec t , 

whether we have any of th is  here.

Justice Black: Well, chat is  i t .

Mr. Davis: Any evidence whatever.

Justice Black: I must say X understood that to mean — I 

had a l i t t l e  to do with i t  — I understood that to mean that 

you much have some evidence from which i t  can be inferred that 

a man is  gu ilty  of each essen tia l element of a crime.

Here an essen tia l element of the crime i s  to stay there 

after they were warned to leave. He did not t e l l  them co do so.

I would find i t  d if f ic u lt  myself to draw an inference 

from th is  evidence that chat is  what he told  them to do to base



et51 285

a conviction of a crime on, a man talking in  h is home.

Mr. Davis: Well, I appreciate Your Honor's problem on 

that, and i t  i s  not an easy one, I don't think. But we do 

have th is  situ ation , do we not, as to whether we know what a 

s i t - in  demonstration is? They c ite  law review a r tic le s  chat 

deal with them as a thing of common experience.

I t  was a fact of l i f e  in Birmingham when these things came 

up for t r ia l  at the Circuit Court lev e l, they were an established  

fact of l i f e ,  pattern of l i£ e 0

When I asl;ed Officer Pierce i f  they discussed sit-downs, 

i f  that was the area of evidence, he said, yes.

I said, "Do you know of your own knowledge whether in fact 

these people attended or attending these people participated  

in s i t  downs?"

He said, "Yes, I know of my own personal knowledge they 

did." Where is  there any question of what a sit-down is?

Justice Black: Wow, the fact chat they went there, and

assuming they went there and went further than they had been 

to ld , they were gu ilty  of v io la ting , you cannot take that into  

account to show when they told  him th is i t  included somethings

Mr. Davis: Well, you take some of these other statements — 

Justice Douglas: I do not see why^ou make these conces­

sions, counsel, because i f  th is  ordinance requires a separation 

of races in restaurants, whether they stay a minute or whether 

they stay ten minutes or whether they stay u n til there i s  a



et52 286

figh t —

Mr. Davis: We never would concede chat the ordinance was 

vala.d, Mr. Justice Douglas. In fact, that leads me up to a 

point —

The Chief Justice: Mr. Davis, I was ju st wondering i f  

the Court, according to your theory, could not take ju d ic ia l 

notice of the provisions of an ordinance of Birmingham which 

sp e c if ic a lly  stated a crime, how can i t  take ju d ic ia l notice  

of the fact that the term "sit-in" contains the elements of 

a public offense?

Mr. Davis: I do not think i t  i s  a question of ju d ic ia l 

notice, Mr. Chief Justice.

The Chief Justice: What is  it?  How do you acquire knowl­

edge of what a s i t - in  is?

Mr. Davis: In the f ir s t  place, these p etition ers passed

up, on their in sistence, they had no jury.

The Chief Justice: I beg your pardon?

Mr. Davis: They had no jury. I t  was their choice and 

they elected  not to have a jury try the case. So the Court 

s i t s  as a jury.

I f  we have 12 men s it t in g  in there, and I think the two of 

us in th is  situation  where they le t  the Court act as a jury, 

he i s  charged by the lav/ — a juror uses h is common experience, 

his common sense, h is common knowledge of a ffa ir s , and he finds 

that as a matter of common experience, not because he ju d ic ia lly



287
knows something.

I think ju d ic ia l knowledge and things we know is  a matter 

of common experience as jurors and they are two d ifferent things.

The Chief Justice: You mean a juror would be expected to 

use h is common sense —

Mr. Davis: Yes, s ir .

The Chief Justice: (continuing) — but the Judge would not?

Mr. Davis: I did not say that.

The Chief Justice: Well, the inference i s  there.

Mr. Davis: Well, I did not say that e ith er . I simply 

said th is: a court ju d ic ia lly  knows certain things. I t  may not 

know i t  a l l ,  as Your Honor knows.

Justice Black: We w il l  concede that.

Mr. Davis: This i s  purely argument. Jurors are charged 

by the Court, "Gentlemen, i t  is  your duty to use your common 

experience as to those things that you know are common facts  

in l ife ."

That i s  why they pick 12 of them, to get a mass of human 

experience in th is .

This thing was widely known. I t  had been sensationalized  

throughout our publications, and I think outside as w ell. But 

i t  was not common knowledge —

Justice Black: May I say, Mr. Davis, in that connection,

I am not an expert on i t ,  but I would think that there are some 

s i t - in s  where they s i t  there u ntil they d irect them to get out,



et54 2d8

and then they get out; and in others they might stay.

Mr. Davis: These were a l i t t l e  more stubborn.

Justice Blade: Well, I say, they might have been when 

they got there.

Mr. Davis: Yes.

Justice Black: But merely te ll in g  a man to go and —-

Mr. Davis: I think th is  may answer that question and, 

please, I do not want to go — I want to save some time for 

after the S o lic itor  General malces h is argument, 15 minutes, i f  

I may — he assured them he would get them out of j a i l .  Nov/, 

admittedly, they did not breach the peace. They claim that 

and we claim that.

Justice Black: There was an ordinance there in which they 

could bo put in j a i l ,  whether i t  was a trespass or not.

Mr. Davis: No. The restaurant operator could go to ja i l  

under th is  restaurant ordinance they bring up in court.

The Chief Justice: Couldn51 anyone who aided and abetted 

him go to ja il?

Mr. Davis: I am sure so.

The Chief Justice: Would these people be gu ilty  of aiding 

and abetting them?

Mr. Davis: No, s ir .  The ordinance does not say that.

The ordinance puts the burden on the restaurant owners to do 

that, and that is  not in the record. We have a record, and 

that i s  not in the record.



et55

#12

28 r

Justice Black: I agree we should lim it our consider at •>! 

to the precise evidence that i s  in the record in a criminr. 

case on the question of the p etitioners —

Mr. Davis: I am lo s t  in that.

Justice Black: I say, what i  mean is ,  I agree w.t-h you

that we should lim it i t  to a consideration of whether there is  

enough evidence here, actual evidence given in the else.

Mr. Davis: Yes. But I think there are reaso-Jtble in fer­

ences we may draw, and one i s  th is: i f  they v/ere not going to 

breach the peace, what were they going to do? I. the operator 

of the restaurant was the one involved in not p itting up separate 

doors and partitions and so forth, certain ly tiey were not 

going to j a i l  for that.

What did Reverend Shuttlesv;orth have in mind when he 

assured them that he would get them out of fail?

The Chief Justice: Well, v/e have had some cases here, 

the Garner case, the L ouisville case and ether cases, where 

they did put them in j a i l ,  where there v/cc not any evidence of 

any type against them.

Mr. Davis: 3: would say th is  —

The Chief Justice: I would say, how can you say that under 

no circumstances would something of that kind happen?

Mr. Davis: I would agree with Your Honor in th is . This 

may not have been the only conclusion reachable under the facts . 

But the question i s  whether the Court, acting as a jury, had



et55

#12

28 f

Justice Black: I agree we should lim it our consideration 

to the precise evidence that i s  in the record in a crimina- 

case on the question of the p etition ers —

Mr. Davis: I am lo s t  in that.

Justice Black: X say, what I mean i s ,  I agree with you

that we should lim it i t  to a consideration of whether there is  

enough evidence here, actual evidence given in the case.

Mr. Davis: Yes. But I think there are reasoreble in fer­

ences we may draw, and one is  th is: i f  they were not going to 

breach the peace, what were they going to do? I . the operator 

of the restaurant was the one involved in not p ittin g  up separate 

doors and partitions and so forth, certain ly  tiey  were not 

going to j a i l  for that-

What did Reverend Shuttlesworth have in mind when he 

assured them that he would get them out of jail?

The Chief Justice: Well, v/e have had some cases here, 

the Garner case, the L ouisville case and ether cases, where 

they did put them in j a i l ,  where there wes not any evidence of 

any type against them.

Mr. Davis: I would say th is  —

The Chief Justice: I would say, how can you say that under 

no circumstances would something of that kind happen?

Mr. Davis: I would agree with Your Honor in th is . This 

may not have been the only conclusion reachable under the fa c ts . 

But the question i s  whether the Court, acting as a jury, had



290

any evidence before i t ,  and could i t  act upon anything i t  had 

to find that he was in c itin g  them to go or remain on the premises.

Justice Harlan: I t  i s  a tighter rule than that, is  ic  not? 

We have got to judge the constitu tional p erm issib ility  of the 

inferences. This i s  not a question for us as i t  might be i f  

we were s it t in g  as a sta te appellate court and reviewing the 

evidence.

Mr. Davis: Yes, s ir .

Was that in the nature of a statement or a question?

Justice Harlan: Well, I suppose i t  was in the nature of 

a statement.

Justice Goldberg: Mr. Davis, am I correct, and I refer to 

page 31 of the record, that the to ta l evidence in the case was 

that Reverend Shuttlesworth ashed for volunteers to participate  

in sit-down str ik es, and that on the following page, he made 

the announcement at that time that he would get them out of 

j a i l .  I sn 't  that about it?

Mr. Davis: That is  a l i t t l e  b it  more — there is  a l i t t l e  

b it  more to i t ,  but that i s  —

Justice Goldberg: Can you point out anything more? I 

have looked at the record pretty carefu lly , and that is  a l l  I 

find.

Mr. Davis: Are you on 30 and 31, I believe?

Justice Goldberg: Yes, and 32.

Mr. Davis: And 32.



et57 291
Justice Goldberg: I do not want you to take time now, 

but that i s  a l l  I did find.

Mr. Davis: Of course, we started out with the statements 

made by Gober and made by Davis on another occasion.

I t  describes the fact that Reverend B illups came out to  

school and he rode with them, and there were several other 

people there.

Justice Goldberg: Yes, I understand. But on Reverend

Shuttlesworth nov/ as to what he did, I have looked over th is  

whole record, and I find —

Mr. Davis: Yes, s ir .  He discussed, he participated in

the discussions.

Justice Goldberg: Yes.

Mr0 Davis: And asked for volunteers and assured them he 

would get them out of j a i l .

Justice Goldberg: To participate in the sit-down strik e, 

as he ca lled  i t ,  and then he made the announcement at that time 

that he would get them out of j a i l .

Mr. Davis: That is  the stun and substance.

Justice Goldberg: And that i s  the evidence; and you say 

on that evidence and the legitim ate inferences that might be 

drawn from that evidence —

Mr. Davis: That i s  right, s ir .

Justice Goldberg: (continuing) — there was a v io lation

of the statute?



et38
292

Mr. Davis: That is  right, s ir .

Justice Harlan: What do you say about Billups?

Mr. Davis: I f  I may take the lib erty  of counsel for 

Petitioners referring to the other record, there is  some ev i­

dence that he carried s ix  over to the meeting, in th is  one he 

carried one. One or s ix , I do not think i t  makes any d ifference. 

But nevertheless he was out to school and carried a student to 

the meeting.

He sat there. He did not take the' stand to negative his 

p osition . But at lea st there was some evidence that he was 

part and parcel of the scheme. They are both members of the 

m inisteria l profession.

Justice Harlan: Is i t  permissible under Alabama lav; to 

draw an inference from the fa ilure of the defendant to take 

the stand?

Mr. Davis: I t  must not be commented upon to the jury.

But whether he commented or not, there i s  no evidence to nega­

tiv e  i t .  That i s  the only point I am making, not chat he did 

not negative i t ,  but there was no negative; and the Appellate 

Court opinion said there was no choice but to assume that he 

was part and parcel.

He did not get up and leave, there i s  no evidence of that. 

There i s  no evidence that he recused himself of any resp on sib ility . 

But he did take someone there, and he did remain there, and 

these things were discussed in h is presence.



et59 293

I do not know whether i t  i s  lik e  finding a group of 

people gambling and one of the people may be standing over 

here just counting his own money, but I think they generally  

assume he i s  part of the operation unless he takes the stand 

and puts up some strong defense.

The Chief Justice: Thank you.

Mrs. Motley?

Mrs. Motley: We have nothing further, Your Honor.



2^4

The Chief Justice: Number 71, James Richard Peterson,

at a l . ,  Petitioners, versus City of G reenville.

The Clerk: Counsel arc present.

The Chief Justice: Mr. Perry.

ARGUMENT ON BEHALF OF JAMES RICHARD PETERSON,

ET AL., PETITIONERS,

BY MR. MATTHEW J. PERRY

Mr. Perry: Mr. Chief Justice, may i t  please the Court, 

th is  case i s  here on w rit of certiorari to the Supreme Court 

of the State of South Carolina.

The case involves principally  the question of whether a 

sta te  may arrest and convict p etition ers of trespass where they 

sat at a white lunch counter in a business open to the general 

public, and where a c ity  ordinance required the policy of ex­

cluding Negroes to be enforced.

The City of Greenville, South Carolina, has an ordinance 

which i s  codified  as Section 31-3 of the Code of the City of 

Greenville, and which i s  reproduced in our b rief at pages 2 

and 3, and i s  in the record at page 49, which provides that:

"It sh a ll be unlawful for any person owning, managing 

or controlling any hotel, restaurant, cafe, eating house, 

boarding house or similar establishment to furnish meals 

to  white persons and colored persons in the same room 

at the same table or at the same counter; provided, how­

ever, that meals may be served to white persons and



e t 61

#13

295

colored persons in the same room where separate f a c i l i t ie s

are furnished.“

The ordinance then proceeds to describe the manner in  

which the f a c i l i t ie s  sh a ll be made separate.

Sc H. Kress and Company is  a large nationwide chain, and 

i t  has a store in Greenville, South Carolina, which caters to  

the general public, including Negroes in the sa le  of more than 

10,000 items.

However, Kress, as in the case in ether lo c a lit ie s ,  also  

has a food counter from which i t  excludes Negroes in obedience 

to loca l custom, and in further obedience to the ordinance to 

which we have referred.

Justice Stewart: Is  i t  a counter, a counter with seats?

Mr. Perry: That is  correct,sir; yes, s ir .

Justice Stewart: I t  is  just a counter, i t  i s  not a 

restaurant?

Mr. Perry: I t  is  a lunch counter. I t  is  not a separate 

restaurant.

Justice Stewart: With tables?

Mr. Perry: I t  i s  not a separately enclosed restaurant.

I t  i s  a lunch counter which has about 50 stoo ls or seats placed 

adjacent to the counter.

Now, the custom to which I have just referred W ill be d is­

cussed la ter  in th is  presentation.

On August 9, i960, about 14 young negro c itizen s  went into



296

the Kress store in Greenville, South Carolina, and seated 

themselves at the lunch counter.

They seated themselves there, and very shortly thereafter, 

Captain Bramlette of the Greenville City Police Department re­

ceived a c a ll  by way of the radio at h is police headquarters 

that there were some young colored boys and g ir ls  seated at the 

lunch counter around at Kress.

This was the message that he received, and according to 

his testimony, i t  was upon the receipt of th is  information chat 

he and other o fficers  proceeded to the Kress preraises„

When he arrived at the Kress premises, he and the o fficer  

who rode with him, met some other o fficers  on the outside of 

Kress, and together they went into the rear door, and they 

found the young colored boys and g ir ls  seated at the lunch 

counter.

The lunch counter area i s  situated just inside the rear 

door and, of course, as soon as they entered the store, they 

saw the young Negroes seated, s it t in g  at the counter.

Now, there was Captain Bramlette and another patrolman 

from his o ffice ,,an d  when they arrived there, they found 

Officer H illyer of the South Carolina Law Enforcement Agency 

also present, and a number of other o fficers  were in and about 

the premises.

Officer H illyer, a member of the South Carolina Lav/ Enforce­

ment Agency, later te s t if ie d  that he works d irectly  under



et 63 297
Chief Strom of the South Carolina Law Enforcement Division, 

v;ho likewise or who also works under Governor R ollings. The 

Governor of the State i s  the Chief Officer then of the South 

Carolina Lav; Enforcement D ivision, and the testimony is  that 

the presence of Officer H illyer on these premises was for the 

purpose of giving assistance to the loca l p o lice . But he also  

te s t if ie d  that h is presence in any situation  more or le ss  re­

flected  the attitude of the o ff ic e  of the Governor.

These young people were told  later that the lunch counter 

was closed , hs a matter of fact, Captain Bramlette of the 

Police Department te s t if ie d  that shortly after h is arrival he 

heard manager G. W. West, the manager, the loca l manager, of 

Kress, sta te  to everyone that the lunch counter was closing,- 

that Manager West then turned the lig h ts  out over the lunch 

counter and thereafter w h en  the young Negroes refused to leave 

he, Captain Bramlette, announced to- a l l  of them that they were 

under arrest.

The Chief Justice: When they refused to leave, by that

you mean that they just did not leave or was there anything 

said to them by the Management?

Mr. Perry: There was nothing further said to them by the 

Manager.

The Chief Justice: They had not done anything up to th is

time?

Mr. Perry: That i s  correct, s ir .  The p etition ers merely



et64 293

declined to move, and the testimony is  they sat there for a 

to ta l of about five  minutes, and that Captain Bramletce and 

the other o fficers  escorted them oU; and placed them under 

arrest*

Justice White: Did they arrest everyone who was s t i l l  

seated there?

Mr. Perry: The evidence is  that only the Negro p etitioners  

were arrested. However, there is  also evidence that some white 

persons remained seated after the lunch counter was closed.

Nov/, Mr. West, the store manager, stated that the white 

persons l e f t  a lso .

The Chief Justice: A ll of them?

Mr. Perry: This was his testimony. Of course, there is  

evidence in the record which contradicts the evidence of Mr.

West on that point. Other witnesses te s t if ie d  that white 

persons kept their seats, remained seated and that, of course, 

only the Negro p etition ers were arrested.

Pour of the young people who v/ere arrested were under the 

age of 16, and their cases were referred to  the Juvenile and 

Domestic Relations Court of Greenville County.

The persons who v/ere cried in the Municipal Court of the 

City of Greenville, were found gu ilty  of trespass, and v/ere 

given sentences of $100 or 30 days. Their convictions were 

la ter  upheld by the South Carolina Supreme Court.

The record here clearly  shows state action, which was



et65 299

prohibited by the 14th Amendment.

I should lik e to sta te the items upon which v/e rely  as 

constituting sta te  action in th is  matter. F irst of a l l ,  there 

i s  a state-wide custom of racia l segregation v/hich i s  generated 

by sta te  law.

South Carolina schools are segregated a l l  the way from 

the elementary schools through the college and university stage.

Negroes and whites may not work together in the same room 

in te x t i le  industries.

Circuses and travellin g  shows must provide separate accommo­

dations for spectators.

Persons serving in prisons and chain gangs are required 

by South Carolina law to be segregated.

Steam ferr ies  and railroad cars are required by law to 

provide separate f a c i l i t ie s  for whites and Negroes.

Station restaurants must provide rac ia lly  separate f a c i l i t i e s .

Streetcars are required by lav/ to do the same thing.

I t  i s  a crime in South Carolina to give a white child  to 

a Negro. Inter-marriage betv/een the races i s  prohibited.

Justice Stewart: I did not understand that. I t  is  a

crime to do v/hat?

Mr. Perry: I t  is  a crime to give a white child  to a Negro.

Justice Stewart: Give a v/hite child?

Justice Harlan: Adoption, you mean?

Mr, Perry: To give custody of a white child  to a Negro.



et 66 300

D'ustice Stewart: I s t i l l  do not understand it„

Mr. Perry: Of course, th is  statute is  cited  in our b r ie f.

Justice Stewart: I see.

Mr. Perry: And we respectfu lly  c a ll  the Court’s attention  

to that sta tu te .

Justice Douglas: You cannot hire Negroes as babysitters?

Mr. Perry: No, s ir .  I t  does not cover the babysitter

days.

Justice Stewart: I suppose i t  i s  fan tastic to give your 

child  away to anybody anyway.

Mr. Perry: Of course, in South Carolina there i s  a 

sp ec ific  statute which goes beyond any general law which covers 

the situation  by further making i t  a crime to give a white 

child  to a Negro.

Justice Stewart: I suppose i t  i s  not v ita l  to th is  case?

Mr. Perry: I t  i s  not.

Inter-marriage between the races is  prohibited.

A ll South Carolina parts are segregated by lav;.

The City of Greenville, South Carolina, has an ordinance 

requiring racia l segregation, and that is  in resid en tia l areas,* 

and, or course, la s t ly  but not the lea st, there is  Section 31-8 

of the Code of Greenville which requires segregation in eating 

establishm ents.

Justice Stewart: Have any of these statutes or ordinances

been tested  in litiga tion ?



et67

#14

301

Mr. Perry: Tne package of leg is la tio n  which requires 

segregation in South Carolina parts is  now the subject of 

lit ig a tio n  pending in the Eastern D istr ic t of South Carolina.

The City of G reenville's ordinance which requires resid en tia l 

segregation i s  likewise the subject of both a c iv i l  action  

designed to have i t  declared unconstitutional, and also one 

or more persons have been arrested under i t s  penal provisions, 

and appeals from convictions which were obtained under th is  

ordinance are now pending in South Carolina State Courts.

As to the other laws which are under question, of course, 

che Courc i s  aware of the decision which accompanied th is  Court's 

rulings in Brown versus Board of Education, and one of the 

cases was ca lled  Briggs versus E llio t t , which came from South 

Carolina, and i t  declared South Caro 1 in a 1 s constitu tional pro­

visions which required racia l segregation unconstitutional.

However, the constitu tional provision i t s e l f  nor the 

statutory provisions which w e r e  enacted pursuant to th is  con­

stitu tio n a l provision have been repealed,, so the laws are 

s t i l l  outstanding on the books and, in fact, schools are s t i l l  

segregated*

Justice Stewart: A hundred per cent?

Mr. Perry: One hundred per cent, that is  correct.

Justice Stewart: Yes.

Mr. Perry: L itigation  is  now  pending on that particular

subject in South Carolina.



et 68 302

Justice Douglas: Whatever happened with that South 

Carolina case that was up here when we decided Brown versus 

Board of Education?

Mr. Perry: One phase o£ i t  i s  s t i l l  pending.

Justice Douglas: The same case?

Mr. Perry: Yes, s ir  — w e ll, no, s ir .  Since that time a 

new case has been f ile d  by reason of certain reorganizations of 

school d is tr ic ts  in Clarendon County. The name of that su it  

i s  ca lled  Brunson versus Board of Trustees of Clarendon County, 

and a phase of that lit ig a tio n  i s  now pending in  the Fourth 

Circuit Court of .Appeals.

I believe that would cover the court decisions which have 

been made with reference to the laws which I have mentionsd, 

and the lit ig a tio n  which i s  now pending in reference to them.

Another item of sta te action that we rely  upon in th is  

matter is  that the independent action by the p olice in th is  

matter in arresting the p etitioners when their only crime was 

s it t in g  at a white lunch counter, was sta te  action which, we 

think, was prohibited by the 14th Amendment.

Lastly, the conviction of the p etition ers and their  

sentencing in South Carolina State Courts* .

The Petitioners, of course, were convicted of the crime 

of trespass and, of course, th is  statute is  se t forth in the 

p etitio n ers0'.b r ief at page 2.

So that the evidence i s  that though p etition ers were



et69 303

convicted of the crime of trespass in the name of the crime 

of trespass, they were, in fact, convicted of v io la tin g  the 

segregation policy of the City of Greenville and of the State 

of South Carolina, as is  reflected  by the ordinance which makes 

i t  a crime for white persons and negroes to be given food 

accommodations in the same room unless those provisions are 

separated.

I f ,  as the manager te s t if ie d , S. H. Kress and Company 

maintained the policy of segregation because of the ordinance, 

then there can be no ocher conclusion that the c ity , by the 

ordinance and by arrest and criminal conviction, has placed 

i t s  authority behind discriminatory treatment based so le ly  on 

color, and we respectfu lly  say that th is  is  p recisely  what 

the record shows.

The manager te s t if ie d  at page 23 in the record, in response 

to a question which was posed to him on cross-examination:

"Mr. West, why did you order your lunch counter

closed?"

His answer was:

" It’s contrary to loca l customs and i t ' s  also the

ordinance that has been discussed."

Justice Stewart: Whore i s  the prior discussion, of the 

ordinance?

Mr. Perry: There is  a prior discussion of i t  which 

appears on pages 10 and 11 of the record in the cross-examination



et70 304

of Captain Bramlette of the Greenville c ity  Police Department. 

The question: "Does Greenville have an ordinance against con­

duct of this sort"? His answer was, "We do."

And over on page 11, "What i s  that lav;, please, sir?"

"A I t  forbids colored and white eating at the same lunch 

counter."

Justice Brennan: Was chat ever formally offered in 

evidence or i s  that, necessary in your procedure?

Mr. Perry: I t  i s  necessary in our procedure.

Justice Brennan: I t  is  not?

Mr. Perry: I t  i s  necessary, s ir .

Justice Brennan: I see.

Mr. Perry: But the Court excluded th is  item of evidence 

under the theory that i t  had nothing to do with the issues 

before the Court.

Justice Brennan: Where does that appear?

Mr. Perry: I t  appears a number of places in the record.

Justice Brennan: Well, I gather that what you are saying 

is  that you made a formal offer of i t  in evidence?

Mr. Perry: Yes, s ir .

Justice Brennan: And the offer was refused?

Mr. Perry: That is  correct.

Justice Brennan: Can you say where that is?

Mr. Perry: Very good, s ir .

Justice Brennan: Don't w ait. You can get i t  and give i t



to me la te r .

Mr. Perry: Very good, s ir .

I t  v/as mentioned on pages 10 and 11. However, at the end 

of the t r ia l  an offer was made and, of course, the Court ruled 

th is  lin e  of evidence out.

Perhaps later in my discussion I can refer the Court to 

the exact pages.

Justice Brennan: Thank you.

Justice Goldberg: You did i t  at page 46 of the record.

Mr. Perry: Thank you, s ir .

Justice Brennan: That is  Section 31-B as amended, right?

Mr. Perry: That is  a misprint. 31-8 as amended.

Justice Brennan: Right.

Mr. Perry: Nov/, these p e titio n ers’ arrest and convictions 

then resu lt d irectly  from the segregation command of the City 

of Greenville, and not from any individual or corporate business 

decision or preference of the manager to exclude Negroes from 

the lunch counter.

The City of Greenville determined that the p e titio n ers’ 

conduct would be unlawful even i f  the department store consented 

to serve them at the lunch counter.

Justice Harlan: What i s  the situation  in Greenville now?

Mr. Perry: The lunch counter at Kress is  s t i l l  segregated, 

and i t  i s  my understanding that th is  policy s t i l l  prevails 

throughout the Greenville community.



e t 72 306

#15

Justice Harlan: Just a matter of in terest, are there any 

restaurants, any restaurants of th is  kind, that have become 

desegregated?

Mr. Perry: In Greenville or in South Carolina?

Justice Harlan: In South Carolina.

Mr. Perry: In Columbia, South Carolina, there are several 

stores, including the Kress store located in Columbia.

Justice Harlan: Are there ordinances there, too?

Mr. Perry: Ho, s ir .

Justice Harlan: Hone?

Mr. Perry: There are none.

So our contention is  that enacting f ir s t  that persons who 

remain in a restaurant when the owner demands that they leave, 

are trespassers, and then enacting that restaurant may not 

permit Negroes to  remain in white restaurants, the State of 

South Carolina and the City of Greenville have made i t  a crime, 

that is  the crime of trespass, for a Negro to remain in a 

white restaurant.

We respectfu lly  say that th is  contravenes the 14th Amend­

ment as has been so. held in a number of cases by th is  Court.

May I save the rest of my time, please?

The Chief Justice: You may.

Mr. Snyder



e t  73 307
ARGUMENT ON BEHALF OF CITY OF GREENVILLE,

RESPONDENT

EY MR. SNYDER

Mr. Snyder: May i t  please the Court, before getting into  

the legal issues, there is  just one part of the factual sta te­

ment by Mr. Perry that I would lik e  to mention, and that i s  the 

remarks he made concerning some of the testimony.

I t  v;as te s t if ie d  by the score manager that prior to the 

time of the arrest a l l  of the white customers departed as a 

resu lt of his request for everybody to leave the lunch counter.

One of the defense witnesses t e s t if ie d  to the contrary 

that a l l  of the white customers did not leave as the resu lt of 

the managercs request.

That presented squarely to  the Court below, to the tr ia l  

court, a question of fact to h e  decided in the case, aid i t  

was decided by the tr ia l  court on those facts that the white 

people did leave at the request of the manager.

Nov;, that holding by the t r ia l  court, we submit, i s  con­

clusive upon th is  Court because i t  i s  amply supported by the 

facts in the case.

Now, getting into the legal issues, they seem to me to be, 

perhaps, three. There are three basic issu es, i t  seems to me, 

in th is  entire case. The f ir s t  thing you have to get to when 

you discuss these cases at a l l  i s  a question of whether a person 

who runs a restaurant or any other kind of store has a right,



et74 308

in the f ir s t  analysis, to choose the people with whom he w ill  

do business. I f  he has not such right, then the whole thing 

is  ended right there. You have to resolve chat issue f ir s t .

Now, le t  us look at the case here and see whether or ro c 

th is  r e ta il  store, which has a restaurant there, does have that 

right..

You have to go back to decide that, f ir s t  of a l l ,  to the 

common law, and you w ill  find as you go back that there i s  no 

statute in the case which discusses i t ,  say you have to rely  

on the common law. You have to rely  on the common lav; to see 

what the rights of restaurant owners have been in times past, 

and you w il l  find, as you examine that, chat shopkeepers and 

people who did business with the public, in general, had a right 

under the common law to  choose, to se le c t , those people with 

whom they would do business and they had chat as an absolute 

r ig h t„

Now, that rule i s  not without exception, and we admit that. 

The f i r s t  exception, and probably the most important exception, 

i s  the case of innkeepers, and you have to look at the facts  

for the rule to see why i t  was that innkeepers were treated  

d ifferen tly , and the facts for d ifferen t treatment of innkeepers 

bring out the facts o f l i f e  as they existed in England at the 

time those rules grew up, and they show that as far as inn­

keepers were concerned that wan tied  in with traval in those 

times, and that v;as a time when the roads were very poor, when



ec75 309

travel was slow either by horseback or by coach, and you could 

not make much time..

I t  was also a time when law enforcement was not as good 

as i t  i s  now, and there were a lo t of robbers and highwaymen — 

we read about them in the novels of chat time — who were preva­

len t on the highways.

So when a traveler traveling along had to have some sort 

of protection, he had to have a place to rest h is horse or h is  

means of conveyance, and he had to have feed for them, and he 

also had to find a place to obtain provisions for himself and 

a place for safety and comfort over night during the time when 

i t  was hardly possible to travel. So chat made the reason for 

the d istin ction  of innkeepers in the f ir s t  p lace.

Now, a second class of things that grew up along —

Justice Douglas: You don't think those are relevant today?

Hr. Snyder: I think they are relevant, Your Honor. I 

think i t  i s  relevant because i t  shows the reason why a pro­

prietor has the right to se lec t h is customers.

Justice Douglas: In a motel?

Mr. Snyder: Yes, s ir .  I chink —

Justice Black: You mean a Constitutional right to se lec t  

his customers? I do not quite understand myself why that is  

the primary place where you have to s ta r t . I ju st do not 

understand i t .

Suppose i t  was a rule under the common law. Common law



et75 310

in th is  country everywhere I know of can be changed by sta tu te .

Mr. Snyder: Yes, s ir .

Justice Black: You have a Constitutional question.

Mr. Snyder: That is  r igh t.

Justice Black: And X presume the Constitutional question 

i s  whether or not the Constitution i t s e l f  forbids v/hat has been 

charged here.

Mr. Snyder: That is  correct, s ir .

Justice Black: So that a sta te cannot pass a law one 

way or the other.

Mr. Snyder: That is  r igh t.

Justice Black: You are not raising a question as to 

whether a sta te  could not pass a lav/, are you —

Mr. Snyder: We are not.

Justice Black. (continuing) — that prohibits th is  d is­

crimination?

Mr. Snyder: The sta te  could pass such a law. Buc having 

passed no lav/, there is  nothing in  the Constitution which re­

quires the sta te  to force a store owner to give equal treatment 

to a l l  who would seek to purchase something from him.

Justice Douglas: That is  the question.

Mr. Snyder: Yes, sir? I think that is  the question.

As I say, there is  nothing in the Constitution v/hich places 

— the C o n s t itu t io n  places no affirm ative duty on a s t a t e  to  

see to i t  that an operator of a store o ffers h is goods to a i l



et77 311
who w il l  seek them* The Constitution leaves that area open 

as far as the store owner’s choice, except insofar as the 

Constitution does not prohibit a sta te  from passing a lav; 

changing the common lav; situation  which existed  prior to the

Constitutiono

The Chief Justice: But i s  does prevent a state from 

passing a lav; chat would prevent restaurant owners from showing 

equal protection to a l l  people, does i t  not?

Mr. Snyder: Y es,s ir .

The Chief Justice: Eow do you explain your ordinance

then?

Mr. Snyder: I explain the ordinance under that by saying 

that the ordinance does not make sta te  action.

Nov/, Your Honor referred to the equal protection clause, 

and that brings us into the 14th Amendment, which i s  a Section 

of the Constitution that we are under here, and under the 14th 

Amendment, as I understand i t ,  and I understand the decisions 

on i t ,  some sta te  action must have taken place which deprives 

a c it ise n  of either due process or of some l i f e ,  liberty  or 

property*

The Chief Justice: Does not the ordinance do that?

Mr. Snyder: The ordinance does not do that, in my opinion, 

Your Honor.

The Chief Justice: What does the ordinance do?

Mr. Snyder: The ordinance, which I concede is  probably



et78 312

#16

unconstitutional under the decisions of th is  Court, placed 

an obligation on the store owner, restaurant operator, to main­

tain  separate f a c i l i t ie s  with a d iv ision  either of space or 

w all, as the case may be and to use separate u ten sils  and 

f a c i l i t i e s  for the accommodation of the two races.

Justice Harlan: When was that, what is  the date of that, 

when was the ordinance passed?

Mr* Snyder: I do not know that, Your Honor, but my under­

standing i s  that i t  has been on the books for some time. I t  

i s  in the code of the City of Greenville that was passed in 

1953. I t  came out in 1954.

I t  was s lig h tly  amended, and i t  now appears in the pocket 

supplement, as amended, but i t s  predecessor, which was sub­

sta n tia lly  the same, has been there for some time before that.

Justice Black: I must have misunderstood you. I under­

stood you co say the ordinance did not constitu te sta te  action.

Mr. Snyder: I did not mean to say that the ordinance did 

not constitu te sta te action. I am saying that the ordinance 

in  the circumstances of th is  case is  not sta te  action which 

deprives these p etition ers of any federally protected right.

Justice Goldberg: Mr. Snyder, how can you say that in ligh t  

of the testimony in th is  record? I know you say i t  in your 

b rief that the ordinance played no part —

Mr. Snyder: Yes, sir*

Justice Goldberg: (continuing) — in what took place.



et 79 313

But Mr. West, when he v/as asked the question of why he 

ordered the lunch counter closed, said at page 23 of the 

record, "It i s  contrary to loca l customs and i t s  also the 

ordinance that has been discussed."

Mr. Snyder: Yes, s ir .

Justice Goldberg: You ignore that in your b r ie f . Nov;, 

why do you do that? I sn 't  i t  relevant to what you are d is­

cussing now?

Mr. Snyder: I did not intend to ignore i t .  I think that 

what he is  saying is ,  f ir s t  of a l l ,  what he said on d irect 

examination, that i t  v/as contrary to custom, which were orders 

from the store headquarters, which order v/as made without 

reference to the ordinance, in which he would have had to have 

followed that whether th is  ordinance v/as here or not; and, 

secondly, the fact that there i s  confusion in th is  record as 

to when he says i t  i s  also the ordinance which has been d is­

cussed.

I f  you look back and see what he i s  talking about, and he 

says i t  i s  the ordinance which has been discussed, you w il l  see 

in the prior testimony the witnesses have been referring both 

to th is  c ity  ordinance and the sta te  trespass lav/ under which 

the p etition ers were convicted, as an ordinance, and i t  is  not 

clear to v/hich one he v/as referring. We think that he v/as 

referring to the sta te  lav/.

Justice Douglas: I would think you had, perhaps, even a



314

better answer, because on page 59 of the record your Court 

says the warrant did not charge a v io lation  of the ordinance 

requiring segregation in restaurants.

Mr. Snyder: That is  correct, Your Honor. The ordinance 

requiring segregation in restaurants does not punish people 

like the p etition ers. I t s  prohibition runs only against the 

store.

Justice Douglas: Well, whether or not i t  does, your court 

on page 59 says they were not prosecuted under that ordinance.

Mr. Snyder: I think that i s  correct.

Justice Stewart: But that i s  not the inquiry. The inquiry 

i s  what motivated the manager of the store to t e l l  these people 

to leave, and he said i t  i s  because of the ordinance that has 

been discussed. That is  the point, not what these p etitioners  

were convicted of v io la tin g . I t  i s  what motivated the manager 

of th is  score to t e l l  them to get out.

He said i t  was the ordinance that motivated him.

Mr. Snyder: He said , yes, s ir , in  two parts. F irst is

company!s orders —

Justice Stewart: Local custom.

Mr. Snyder: Yes.

Justice Stewart: And his company's policy to follow local 

custom and the ordinance.

Mr. Snyder: And we say when the ordinance that is  being 

discussed, he i s  referring to the sta te trespass.



etS l 315
Justice Stewart: How could that have been?

Justice White: How could that have motivated him to

throw somebody out? That lav; did not require him to throw 

anybody out. I t  ju st gave him the right i f  he wanted to do as 

he wanted.

Mr. Snyder: That is  r igh t. I do not mean to say that i t  

motivated him, but aware that he had that right, he acted as he 

did. I f  he had not been aware of that righ t, he might have 

taken some other action, done something d ifferen t.

Justice Brennan: Clear up a minor point to me. We were 

referred on page 46 to the ordinance that we are talking about 

now. I t  was offered, and the offer was refused. Yet at page 

5S your court says, the Supreme Court says:

"The ordinance was made a part of the record upon 

request of defendants8 counsel but defendants were not 

charged with having violated  any of i t s  provisions."

Is that ordinance properly in the record?

Mr. Snyder: I think i t  i s .

Justice Brennan: I t  is?

Mr. Snyder: I t  was incorporated in evidence for the pur­

pose of allowing p etition ers to argue about i t  when they made

that point.

Justice Brennan: The point is  chat i t  i s  in the record 

for our consideration?

M r. Snyder: I think i t  i s .



etS2 316

Justice Brennan: Thank you.

Mr. Snyder: Mr. Perry, in his argument discusses the 

question of whether or not you had sta te  action here as a re­

su lt of sta te  lav; and custom behind that is  generated by i t ,  

and he c ited  a l l  these various sta tu tes.

The biggest part of those sta tu tes, however, are either  

dead le tte r s  — for instance, the one in the te x t i le  m ills re­

quiring various separate f a c i l i t ie s  in te x t i le  m ills , that has 

never been enforced in any way.

The public library in the City of Greenville i s  operated 

on a completely unsegregated b asis.

The buses and railroad stations are completed unsegregated. 

There i s  no policy of segregation at a l l .  Likewise, the air­

port i s  operated on a separate and independent b asis.

Justice Stewart: How about th is  one of giving your baby

away?

Mr. Snyder: That law, as I understand i t ,  refers to either  

adoptions or cases sim ilar to adoptions, where custody of a 

child  might be placed in somebody by a court prior to adoption, 

or placing a foundling or orphan with somebody suitable to  

raise i t  up somewhat in loco parentis.

Justice Stewart: Adoption.

Mr. Snyder: Yes. We do have a lav; which permits indenture 

of children, but I think that would be the same rule.

You reach the question on customs when you consider that



83 317

in addition to the fact that the laws and the facts supporting

us in the custom, can never have, v/e submit, the force of lav;.

Custom i s  something that i s  too tenuous to actually be so strong

as to be a lav; and co be sta te  action in a case.

There is  no way, v;e submit, for anybody who can be charged 

with v io la ting  a law, to be charged with v io la ting  a custom as 

lav;. That v;ould be ex post facto, in e f fe c t .

I f  a man were charged with a crime, for example, for v io la t­

ing a custom, how would he know about it?  How would he ever 

know about it?  How would he know i f  a custom had changed, hov; 

would you have anything that would be a certainty to anybody 

regarding a custom i f  you were to say the custom would have

the force of lav;? We submit that i t  does not.

#17 We think the primary issue here i s ,  f i r s t  of a l l ,  whether

or not th is  man had the right to e jec t anybody that he did not 

like in his premises or take the trespass statute to help him 

i f  he did not want to take the law into h is am hands to do 

that; and under our lav; in a trespass situ ation , i f  you did 

not f ir s t  use the law, you would have the right under the de­

cision s in our cases to protect your own private property by 

ejecting  trespassers who would be people who have refused to 

leave the property when you asked them to, and would not obey 

your orders0

You v/ould have the right under our law, and I think prob­

ably under most sta te lav/s to use whatever force v/as necessary



et84 318

to e ject such person.

Now, the lav; does not favor people taking the force of 

lav; into their ov/n hands. The trouble would arise i f  a man, 

a store owner, or anybody took i t  upon himself to throw out 

people who refused to obey his order to leave, there would be 

a multitude of problems* You are going to have not only mild 

resistance, you are going to have cases where people r e s is t  

with a great deal of force,and i t  can lead not only to broken 

bones but to death, and that i s  something that nobody wants to 

have.

That is  a case — in that case a land ovmer, a property 

owner, a store ovmer, should be permitted to resort to  the 

lav; for the force chat could be administered im partially and 

with an even hand, not something where he i s  in there fighting  

and scraping and using force in a prejudiced manner where his 

personal in terest was so involved.

He needs somebody from the outside who is  not personally 

bound up in  the use of that force.

I f  you do not do that, you are going to have a question 

of whether or not a man can use h is own force, who i s  going to  

come to a situ ation , for example, i f  i t  were to be held a man 

could not resort to a statute lik e  th is  to e ject anybody that 

he does not lik e , he i s  going to come to a situation  where 

everybody i s  going to have to take the law into their own hands, 

and you are going to have to hold that by virtue of enacting



e t 85 319

the law, th is  c ity  ordinance requiring segregation, you are 

going to actually , by le tt in g  the c ity  enact an unconstitutional 

lav;, deprive a land owner of the right that he otherwise would 

have had under a state lav; which permitted him to use state  

force to protect his property rights and e ject trespassers.

Justice Goldberg: Mr. Snyder, you say resort to a lav;.

In th is  case did the manager ask for the arrest of these men?

Mr. Snyder: Yes, sir? I think he did, not e x p lic it ly  but 

in the sense that he telephoned for the police to come there, 

and when they came there he requested the p etition ers to leave, 

and in the presence of the police who heard the request, they 

refused to .leave, were given a reasonable opportunity and did 

not leave, which constituted a misdemeanor committed in their  

presence.

Justice Goldberg: I thought the police o fficer  te s t if ie d  

here he was never requested by the manager to arrest these 

s i t - in  people.

Mr„ Snyder: I admit there was never any express request 

by him to arrest them in formal words. But I say that the 

facts show that there was a request.

The Chief Justice: V7as there a formal request for the 

police to come?

Mr. Snyder: Yes, s ir .

The Chief Justice: By the manager?

Mr. Snyder: The manager so te s t if ie d .



et 86 320

The Chief Justice: That he did that?

Mr. Snyder: That he asked one of his subordinates to 

telephone the police to  come to the premises.

The Chief Justice: We w ill  recess n ow .

(Whereupon, at 2:30 o 1 clock p.m., the Court recessed to 

reconvene at 10:00 o'clock a.m.f Wednesday, November 7, 1532.}