Tyson v. Cazes Brief for Appellant

    I n’ t h e

Inifeb Olntirt nf
F or t h e  F if t h  C ircuit

No. 22,616

D r . B ertband  0 .  T y so n ,

V.

Lt. Clarence  J. Cazes, et al.,

Appellant,

Appellees.

ON appeal  prom  t h e  u n it e d  states district court 
POB t h e  eastern  district op LOUISIANA

BRIEF FOR APPELLANT

N orman  C. A m aker 
J ack  Greenberg

10 Columbus Circle 
New York, New York 10019

M u r p h y  W . B ell

971 South 13th Street 
Baton Rouge, Louisiana

Attorneys for Appellant



TABLE OF CONTENTS

PAGE

Statement of the Case .....................................................  1

Specifications of E rror ..................................................... 5

A r g u m en t—

I. The Text and Legislative History of Section 202 
of the Civil Rights Act of 1964 Require Reversal 
of the Decision Below .........................................  6

A. The Text ........................................................... 6

B. The Legislative History ................................ 8

II. The Enforcement Scheme of Title I I  of the Civil 
Rights Act of 1964 Entitles Appellant to Injunc­
tive R elief................................................................  13

C o nclusio n  ......................       14



In t h e

QInttrt of Appralo
F oe t h e  F if t h  C ircu it

No. 22,616

Db. B ertrand  O. T yso n ,

V.

Lr. Clarence  J. C azes, et cd.,

Appellant,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOE THE EASTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLANT

Statement of the Case

This case is one of first impression regarding the con­
struction of Section 202 of the Civil Rights Act of 1964, 
■42 U.S.C. §2000a-l.^

The appeal is from an order (R. 37) of the United States 
District Court for the Eastern District of Louisiana, Baton 
Rouge Division, dismissing plaintiff’s complaint which

1 All persons shall be entitled to be free, at any establishment or place, 
from discrimination or segregation of any kind on the ground of race, 
color, religion, or national origin, if such discrimination or segregation is 
or purports to be required by any law, statute, ordinance, regulation, rule, 
or order of a State or any agency or political subdivision thereof.



prayed for injunctive relief® and damages against defen­
dants because he was refused service and arrested at a bar 
in Plaquemine, Louisiana. Plaquemine has an ordinance 
prohibiting the sale of alcoholic beverages to Negroes and 
whites on the same premises (R. 18-19, 27).®

The complaint (R. 4) was hied on September 2, 1964 
against the proprietors of the Plaquemine establishment 
and the chief of police and four police officers of the City 
of Plaquemine. Defendant police officials on October 23, 
1964 moved to dismiss the complaint (R. 9) on grounds 
inter alia that plaintiff failed to state a claim upon which 
relief could be granted (R. 10-11). On the same day, defen­
dant Offie Stewart, proprietor of the bar, also moved to 
dismiss for failure to state a claim (R. 14).

Since defendants moved to dismiss the complaint for 
failure to state a claim, the factual allegations therein must 
be taken as true and a re : That at approximately 2 :30 a.m. 
on the morning of July 16, 1964 (R. 5) plaintiff, a Negro 
physician (R. 4), entered the Celebrity Lounge in Plaque­
mine, Louisiana and requested service from an employee 
of the Lounge (R. 5). (The Celebrity Lounge, in the 
language of an affidavit submitted by the defendants in 
support of their motions to dismiss, “is a bar, which serves 
beer and other alcoholic drinks in open containers [but] 
. . . does not provide lodging or food to its patrons, nor . . .

2 Through mistake, the prayer for injunctive relief was not included in 
the complaint in the printed record (R. 8). The prayer, however, is 
referred to in the District Court’s opinion (R. 20, 21). The Clerk of this 
Court has been advised of the omission and a motion has been made in the 
District Court to correct the record.

 ̂It shall be unlawful for any person to sell spirituous, vinous or malt 
liquor of alcoholic content of more than 3.2 per cent by volume for con­
sumption on the same premises to persons of the white and Caucasian 
race and persons of the negro or black race. (Ord. Ho. 683, see. 7, 
11-30-61). (R. 19).



live entertainment” (R. 13)). “Plaintiff was told that they 
‘do not serve colored people’ and . . . ” was asked to leave 
(R. 5). He asked to see the manager or proprietor and 
the employee from whom service was requested phoned 
someone and said, “I have a nigger in here and he will not 
leave” (R. 5).

Shortly after the call, Mrs. Stewart, the co-owner, a r­
rived and asked plaintiff to leave (R. 5). He “refused to 
leave without having received service and without being 
told the reason why he was being asked to leave” (R. 5). 
Mrs. Stewart then telephoned the police and reported that 
“she had a nigger in here” (R. 5). The police arrived and 
“conducted a short private conference with defendant Mrs. 
Lydia Stewart” (R. 5). She again requested plaintiff to 
leave and plaintiff “again refused in the absence of any 
cause why he should be refused service” (R. 5). Mrs. 
Stewart replied that she not the police “was asking him 
to leave and refused to give her reasons” (R. 6). Plaintiff 
was then arrested by defendants Gazes and Haydel and 
charged with being drunk and disorderly and disturbing 
the peace (R. 6) though he “was neither loud, boisterous 
or offensive in his speech or manner” (R. 5). A hearing 
was held on July 16, 1964 on the charges placed against 
the plaintiff and “ [he] was released on grounds that the 
evidence was insufficient to support the charges” (R. 6).

A hearing on the motions to dismiss was held on Novem­
ber 20, 1964 and the- motions taken under advisement 
(R. 17-18). A few days thereafter, plaintiff’s attorney by 
letter, informed District Judge West of the Plaquemine 
City Ordinance, attached a certified copy to his letter and 
urged, “ [t]he existence of this Ordinance is in support of 
my jurisdictional contention that Section 202 of the Civil 
Rights Act applies to the above civil action” [Tyson v. 
Cazes] (R. 18).



The District Court however, rejected this contention. Its 
view, stated in its opinion filed February 26, 1965 (R. 20) 
was that Section 202 is inoperative where the facts show 
that an individual proprietor discriminated on racial 
grounds on his own volition not as a result of the compul­
sion of an ordinance requiring racial segregation:

■' When an individual, on his own volition, acting sepa­
rately and apart from any state or local law or 
ordinance, and for reasons of his own, no matter how 
right or wrong those reasons may be, discriminates 
against another individual, no federally protected right 
has been violated. This is now and always has been 
the law. Section 202 of the Civil Rights Act of 1964 
in no way altered or changed this well established 
principle of law. Whether or not there was, in this 
case, a local ordinance in effect which was in conflict 
with Section 202 is of no moment. The facts, as clearly 
stated by the plaintiff in his complaint, show conclu­
sively that he was denied service in the Celebrity 
Lounge not becanse of the compulsion of any state or 
local law or ordinance, but because the owners thereof 
did not choose to serve Negroes in their establishment 
(R. 32).

The effect of Section 202 in the court’s opinion is only to 
immunize a proprietor who serves Negroes and whites 
from prosecution by the state for violation of the local 
ordinance:

Should a proprietor wish to integrate his establish­
ment, even though it is not one covered by Section 201, 
he may do so Avith immunity from state prosecution 
under any local law or ordinance prohibiting such in­
tegration because of the fact that under Article VI 
of the United States Constitution, commonly referred 
t o  as the Supremacy Clause. Section 202 iioav takes



precedence over and nullifies all conflicting state or 
local laws or ordinances. That is all Section 202 is 
designed to accomplish. It simply cannot do more 
(R. 29).

In sum, declared the court:

Section 202 does not purport to declare it illegal for 
an individual, on his own initiative, to discriminate 
against another individual, or against a class of in­
dividuals, or to insist upon segregation on his prem­
ises, when his premises are not, in fact, covered by 
Section 201 of the Act. Discrimination or segregation 
on such premises or in such establishments is only 
illegal under Section 202 when it is practiced, not be­
cause the owner or proprietor wishes to do so on an 
individual basis, but because he is forced by law to do 
so even though he prefers not to. In other words, it 
is segregation on account of race, color, religion, or 
national origin, practiced only because of the compul­
sion of state or local law, that Section 202 seeks to 
prohibit (R. 29).

The Court’s opinion, in addition to rejecting appellant’s 
prayer for injunctive relief also disallowed his claim for 
damages against both sets of defendants (R. 33, 36). The 
judgment of dismissal was filed on March 5, 1965 (R. 37) 
and notice of appeal was filed on March 22, 1965 (R. 38).

Specifications of Error

1. The district court erred in dismissing appellant’s com­
plaint.

2. The district court erred in holding, in the face of an 
ordinance of the City of Plaquemine, Louisiana requiring



6

separation of the races in establishments serving alcoholic 
beverages, that Section 202 of the Civil Rights Act of 1964 
did not entitle him to injunctive relief against discrimina­
tion.

ARGUMENT

I.

The Text and Legislative History of Section 202 of 
the Civil Rights Act of 1964 Require Reversal of the 
Decision Below.

A. T h e  T e x t

Sec. 202. All persons shall be entitled to be free, at 
any establishment or place, from discrimination or 
segregation of any kind on the ground of race, color, 
religion, or national origin, if such discrimination or 
segregation is or purports to be required by any law, 
statute, ordinance, regulation, rule, or order of a State 
or any agency or political subdivision thereof.

Two sections of Title II  of the 1964 Civil Rights Act 
create rights against racial discrimination in public places. 
Sc'ction 201 with five s;ib-divisions, lists a number of estab­
lishments which ai-e declared to be places of public accom­
modation witliin tlie meaning of the section and outlaws 
racial discrimination in those establishments if their opera­
tions atTeet commerce as tlelined in the section. The cover­
age' of Section 201 therefore extends only to the establish­
ments nanu'd tlu'ri'in and the operations of those establish- 
nu'iits must “atVt'ct commerce" as those words are defined 
in Se'ction 2tH(c'). Oiscriminatiou or segregation is also 
proseribeel if such eliscrimination or segregation is sup- 
peo-te'el by state' actiem as eletined in Section 201 td l but it is



clear that this proscription also applies only to the “estab­
lishments” enumerated in Section 201(b).

In sharp contrast is Section 202 set forth above. I t is a 
simple, single paragraph without a technical definition of 
“place of public accommodation” or “affect commerce” or 
“state action” indicating that these concepts as defined in 
Section 201 are not relevant to its coverage. It applies to 
racial discrimination or segregation “at any establishment 
or 'place,” Congress having added “place” to the “establish­
ment” language of Section 201 to indicate broader coverage.

Thus, on the face of the Section, any type of business 
or non-business operation, even if conducted wholly intra­
state is covered. The single condition for coverage is the 
existence of a “law, statute, ordinance, regulation, rule or 
order” of a State or one of its political subdivisions re­
quiring discrimination or segregation. Hence, the section 
is more inclusive than Section 201 with respect to the 
facilities that may be reached but more limited in the 
manner in which they may be affected. Moreover, if the 
discrimination or segregation “is or purports to he re­
quired” by the statute or ordinance (and clearly an or­
dinance which is on the books “purports” to require segre­
gation), there is no ground for holding as the District 
Court did that Section 202 does not apply if it is shown 
that the proprietor discriminated because he wished to. 
Congress intended no such exception. The proprietor sim­
ply will not be heard to say that ho discriminated because 
he wanted to rather than because of the compulsion of 
the law.

The District Court then, accurately characterized plain­
tiff’s argument under Section 202: “the mere fact that 
segregation in certain types of establishments, even though 
not specifically covered by SectioTi 201, is re(iuired by state 
or local law automatically and conclusively renders segre-



8

gation in all such establishments illegal” (E. 28). The 
Court then said that the text of this section, “ [a]t first 
blush . . . would seem to bear out plaintiff’s contention” 
(Ibid.). It seems indisputable that the text of Section 202 
bears out appellant’s contention at last blush as weU. Fur­
ther, the legislative history removes all doubts.

B. T h e  Legislative H istory

Section 202 was added to the bill by the fu ll Judiciary  
Committee of the House o f E epresentatives. The section 
was not included in  the adm inistration b ill as originally  
proposed to the Congress, nor in the H ouse subcommittee 
substitute. Co»ff. Bee., SSth  Corng.. tmd Sess.. Tol. 110, pp. 
1409.1471.

R epresentative W illis o f Louisiana, a  nitHiLDer o f the 
H ouse Judiciary Committee, stated o e  the iioor o f the 
H ouse regarvling coverage o f Sectfon th at:

"This seirtioa is  not Em ited to  pubEe pZsijes or 
. . .  I t  reacI*»?!S h oc^ s. .jemece-rfijs. f iz e r s i
parlors, every peace or sstatiSsamsHtt.'’' I L  i t

R epreseutative Celfer. C&sinissa; -rfi ih r ilm s e  e tn ^ e izy  
l\m iu H tee rspesrteh ritt b S  smE rne nf i ie
pt»poite.»ts o f the iegisisttae® i t  th e O im rrsss, statad trat 
th is seeiiott;

"w u k l p*TohMt dlsorbtasJiitaca: ix  s ty  esGitEsEment. 
whether or so t i s  sttaetcaroS  naxigroraes 
tiou ' i f  dfeseritsttBSticst is  xsegtirftS tc  p r ip o n s to 
W re^xtired by S tats iaw,'" Itf. a t i4?~.

Ho also plavwi ixx the Cxvitgressicstaii Record a raemarandinn 
o« the eoxtstitutionahity the baS w -ik i decisred that Sec- 
Uoxt SOi



9

■‘would reach only cases in which there is actually ‘on 
the books’ a state or local law requiring discrimina­
tion.” Id. at 1462.

The memorandum further stated that the provisions of 
Section 202

“are based upon a concept of state action or involve­
ment well supported by judicial precedent.” (Ibid.).

Among the judicial precedents cited were Peterson v. 
Greenville, 373 U.S. 244, Lombard v. Louisiana, 373 U.S. 
267 and Gober v. City of Birmingham, 373 U.S. 374 (liidLL. 
Section 202 legislates the rule of those and similar cases, 
e.g., Robinson v. Florida, 378 U.S. 153, by granting to per­
sons like the defendants in those cases, a right to affirma­
tive relief against discrimination.

Senator (now Vice-President) Humphrey’s remarks on 
the Senate floor suggest the broad coverage of Section 202 
and are also the clearest statement of congressional intent 
in enacting the section. He stated:

Section 202 of title I I  would also prohibit discrimina­
tion or segregation in any establishment in which dis­
crimination or segregation is required by State law or 
local ordinance. These laws and ordinances relate to 
a wide variety of subjects: billiard rooms in Ueorgia, 
telephone booths in Oklahoma, circuses in South Caro­
lina, washrooms in Tennessee, racetracks in Arkansas, 
barbershops in Augusta, bars in New Orleans, and so 
forth.^ They are in patent violation of the o,(pial-y)ro-

' Senator Magnnson of Washington, a member of the t)i|-mrtiHlin t(Nuii 
__ ] that led the debate in support of Title II declared:

1 course, a bar or nightclub would be novmul under scudion 202
' I in the rare ease in which State law required it to H(!Kr(>giil,e or diw-

eriminate.” Cong. Bee., 88th Cong., 2nd Sesn., Vol. Ilf), p. 717!).



10

tection clause of the 14th amendment. Some of these 
laws, it is true, are not enforced; but any individual 
who violates them lives under the threat that he will 
he prosecuted or face the expense and burden of a 
lawsuit. These laws cannot be condoned and they must 
be repealed. (Emphasis supplied.)

Section 202 is both broader and narrower than section 
201. I t is broader in the sense that it is not confined 
to enumerated types of establishments. It is narrower 
because it applies only where discrimination is re­
quired by a public statute, ordinance, rule, order, and 
so forth. With respect to the establishments covered 
by such laws, section 202 in effect says that if any 
government is going to use race, color, religion or 
national origin as a basis for depriving the owners of 
ail establishment of freedom to choose their customers, 
the choice that will be enforced is desegregation, not 
segregation. All that a State or city has to do to re­
lieve the owners of a business of the impact of section 
202 is to repeal the offending law or ordinance—which 
is a violation of the 14th amendment to the Constitu­
tion. and no one can deny it. I t  can he expected that 
section 202 will result in the repieal of many such 
statutes, W i  Ut>.
IK

The views expresscil by Reprx; tentative Oeiler and Senator 
Humphi\\v wet\' ir, :he debates by Sepresestative
MactHvgvr of Mir.uesv'ta who s:a:evir

■* scnmtt.'ffis. unit 
',x .mscrtzmzati'Oe

' The tVurts have be\i, m a variety 
State arc rweAre.mjê t:
y'v s\'g’:v,<a:um by y"tva:e eseabirshmeur xciy rsie rae 
d',sv*vuverar,vu d v  ,trvvt ec vcrrecT ririvare *f-
•ley. a rc  su b w t tJtv 4cm«Turraeur.



11

clearly be the case if discrimination or segregation is 
required by State or local law, or by the actions of 
State or local officials. It may be the case if the estab­
lishment is located on public property, or operated 
under contract, lease, or similar arrangement with the 
State.” Id. at 1485.

In answering a question put by Representative Waggonner 
of Louisiana, the coverage of Section 202 was made clear:

Me. W aggonstee. If  there is no law, rule, or regulation 
or order, does this apply?

M e . M acGeegoe. The answer is—it does not apply. 
Section 202 is limited to those situations in which a 
State is enforcing an unconstitutional law requiring 
segregation. Id. at 1486.

Senator Young of Ohio, in the Senate debates, explained 
the difference between Sections 201 and 202:

In addition to the provisions in section 201 applying 
to the specifically enumerated places of public accom­
modation just discussed, title I I  contains section 202, 
which makes discrimination or segregation unlawful 
in any place or establishment if it is required by a 
State or local law. Such statutes or ordinances even 
though patently unconstitutional, have often been re­
lied upon as a basis for the continuation of discrimina­
tory practices, and the threat of attempted enforce­
ment or prosecution thereunder has deterred voluntary 
progress in elimination of racial barriers. I t  is ex­
pected that section 202 will foster repeal of the offen­
sive laws and help end the affronts and difficulties 
which flow from their continued existence.

The coverage of section 202 differs from that of section 
201 in several respects. First, section 202 is broader



12

in that it would bar discrimination or segregation in 
any establishment, whether or not included among 
those listed in section 201, if such discrimination or 
segregation were required by a State law or local 
ordinance. It is narrower in that it would bar such 
discrimination or segregation only where it is required 
by a law, statute, ordinance, or rule. I t does not reach 
discrimination or segregation which is the product of 
any form of State action other than a law, ordinance, 
rule, or regulation actually “on the books.” Nor does 
section 202 reach discrimination which affects inter­
state commerce, unless it is required by State law. 
Id. at 7155.

To the same effect were the statements of Senator Mag-
nuson of Washington:

Section 201(d) is intended to encompass a broad scope 
of the term “State action” under the 14th amendment. 
In contrast, section 202 is more limited in that it in­
cludes within its scope only a single type of State ac­
tion prohibited by the 14th amendment; it applies only 
in those instances in which a statute or ordinance 
requires segregation or discrimination. Of course, sec­
tion 202 applies to any establishment whether or not 
included under section 201, while section 201(d) ap­
plies only to establishments within section 201. Id. 
at 7179.

Manifestly, one of the reasons for enacting Section 202. 
as shown by the remarks of Senators Hnniplirey and 
Young, was to compel repinil of onlinamvs like the Plaque- 
mine ordinance. Senator Magnnson also cv'uunented that: 
"'rhere are many municijxal orvUnanees involved in this 
problem in several States of the I'nion.” hL at 7176.



13

The way Congress chose to solve this problem was to give 
defendant proprietors here only the choice of desegregation 
so long as the Plaquemine ordinance remains on the books.

II.

The Enforcement Scheme of Title II of the Civil 
Rights Act of 1964 Entitles Appellant to Injunctive 
Relief.

Title II  after creating the right to be free from dis­
crimination in Sections 201 and 202, in Section 203 pro­
vides :

Sec. 203. No person shall (a) withhold, deny, or 
attempt to withhold or deny, or deprive or attempt 
to deprive, any person of any right or privilege secured 
by section 201 or 202, or

(c) punish or attempt to punish any person for 
exercising or attempting to exercise any right or 
privilege secured by section 201 or 202.

Clearly then, the proprietors of the Celebrity Lounge, 
Offie and Lydia Ste-wart, violated Section 203(a) and de­
fendant police officers violated Section 203(c). Conse­
quently, the provision for injunctive relief in Section 204 
of the Act requires, if the allegations of the complaint 
are proved, that the injunction issue against all the defen­
dants named in the complaint.

This court considered the enforcement scheme of Title II 
in Diltcorih v. Rim r, .343 F. 2d 220 nOOb) and noted that 
the attempt to exercis^^ rights creah;d by Section 201 ( with 
which that ease was is non-punishable under
•Section Htw-M fv^dion 21)3 bars interference with



14

rights created by both Section 201 and 202, it is obvious 
that the enforcement scheme of Title II  applies to the en­
forcement of Section 202 rights as well and this Court’s 
construction of Title I I  in Dilworth is apposite here.

CONCLUSION

The judgment below should be reversed and the cause 
remanded to the district court with instructions to reinstate 
appellant’s complaint and to afford appellant an oppor­
tunity to prove the allegations contained therein and if 
proved to issue the injunction as prayed.

Respectfully submitted,

N oemajst C. A m akee

J ack Geeek bbeg

10 Columbus Circle 
New York, New York 10019

M u r p h y  W . R rt.t.
971 South 13th Street 
Baton Rouge, Louisiana

Attorneys for Appellant



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