Lupper v. Arkansas Brief for Respondent in Opposition

    SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1963

IN THE

No. 432

F r a n k  J am es  L  u ppe r , et a l_________________Petitioners

v .

T h e  S tate  op A r k a n s a s ___________________Respondent

ON P E TITIO N  POE A W R IT  OP CERTIORARI 

TO T H E  SU PRE M E  COURT OF 

T H E  STATE OP ARKANSAS

BRIEF FOR RESPONDENT IN OPPOSITION

B ruce  B e n n e t t  

Attorney General 
State of Arkansas

J a c k  L . L essenberry  

Assistant Attorney General 
Counsel for Respondent 

Justice Building 
Little Rock, Arkansas

PARAGON PRINTING CO.t LITTLE ROCK



INDEX
Page

Opinion Below ------------------------------------------------------------------------  1

Jurisdiction ---------------------------------------------------------------------------  2

Questions Presented —-------- ----------------------------------------------------  2

Federal Constitutional Provision Involved -------------------- ---- — 2

Arkansas Statute Involved ------------------------------------------------------  2

Statement -----  3

Argument ----------------------------- ,------------------------------------------------ 4

Conclusion ----------------------------------------------------------------------------- 11

CITATIONS
Cases:

Avent v. North Carolina, 373 U.S. 375 -----------------------------------  5

Brown v. Allen, 344 U.S. 443 --------------------------------------------------- 8

Brown v. Board of Education, 347 U.S. 483 ----------------------------- 6

Buchanan v. Worley, 245 U.S. 60 ----------------------------------------------  6

Burton v. Wilmington Parking Authority, 265 U.S. 715 ---------  5

Carpenter v. State, 62 Ark. 286, 365 U.S. 900 __________ ____ _ 7

Cooper v. Aaron, 358 U.S. 1 1___________________________________  6

Edelman v. California, 344 U.S. 357 ---------------------------- ----- - 8

Gober v. City of Birmingham, 373 U.S. 277 --------------------- -------  5

Griffin v. Collins, 187 F. Supp. 149 __________________________  5

Lombard v. Louisiana, 373 U.S. 267 ------------------------------- ------  5

Martin v. Struthers, 319 U.S. 141 -------------------------------------------  7

Peterson v. City of Greenville, 373 U.S. 244 ------------ ----------------  5

The Civil Rights Cases, 109 U.S. 3 ----------------------- -----------------  5

Shelby v. Kraemer, 334 U.S. 1 _______________________________  5

Williams v. Howard Johnson’s Restaurant,
268 F. 2d 845 (4th Cir.) ______________ _____________________  5

Yarbrough v. State, 206 Ark. 549, 176 S.W. 2d 702 -------- --- ------  8

Statutes:

Arkansas Statutes (1947) Annotated 
Section 41-1433 (1961 Supp.) 2,3



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1963

No. 432

F r a n k  J am bs  L ttpper, et al Petitioners

v.

T h e  S tate  of A rk an sas B,espondent

ON PE TITIO N  FOR A W R IT  OF CERTIORARI 

TO T H E  SU PREM E COURT OF 

T H E  STATE OF ARKANSAS

BRIEF FOR RESPONDENT IN OPPOSITION

OPIN IO N  BELOW

The opinion of the Supreme Court of Arkansas (Ap­
pendix of Petition) is reported at 236 Ark. 596, 367 S.W. 
2d 750 and the opinion of that court on petition for re­
hearing (Appendix of Petition) is found at 367 S.W. 2d 
760.



2

JU R ISD IC TIO N

The jurisdictional requirement is adequately set forth 
in the Petition.

QUESTIONS PRESENTED

Whether the enforcement of a criminal statute per­
taining to trespass by the State of Arkansas comes within 
the purview and is violative of the Fourteenth Amendment 
of the Constitutionn of the United States.

FEDERAL C O N STITU TIO N A L PROVISION INVOLVED

The Fourteenth Amendment to the Constitution of 
the United States.

AR K A N SAS STATU TE INVOLVED

The issue of this litigation is the constitutionality of 
Act 14, Acts of Arkansas of 1959, codified as Arkansas 
Statutes Annotated §41-1433 (1961 Supp.) which prohibits 
a person to remain on the premises of a business estab­
lishment after having been requested to leave by the owner 
or manager of the establishment.



3

STATEMENT

The petitioners, Frank J. Lupper and Thomas B. 
Robinson, were prosecuted and convicted for the viola­
tion of trespass which occurred at a privately owned busi­
ness establishment in Little Rock, Arkansas.

Aside from certain controversial aspects, the state­
ment contained in the Petition is a fair and concise sum­
mary of the circumstances surrounding the incident.

It should suffice for purposes here to note that peti­
tioners were a part of a group of 12 to 15 persons wear­
ing badges who entered Gus Blass & Company, a depart­
ment store, at noon on April 13, 1960. The group pro­
ceeded to the mezzanine tea room where petitioners and 
some others of the group sat down at the counter and 
tables. Within a few minutes, both petitioners were ad­
vised by store officials, the manager and assistant super­
intendent, that Blass reserved the right to refuse service 
to anyone and was not prepared to serve petitioners. The 
petitioners were then requested to leave. Although the 
petitioners were not boisterous, they attempted to argue 
with the store personnel and refused to leave the premises. 
The city police were summoned and the petitioners were 
arrested for violation of Act 14 of the Acts of Arkansas 
of 1959, codified as Arkansas Statutes Annotated §41-1433 
(1961 Supp,).

The petitioners were tried and convicted of the of­
fense in the Criminal Division of the Little Rock Municipal 
Court. The convictions were appealed to Pulaski Cir­
cuit Court where a trial de novo by jury resulted in ver­
dicts of guilty. The Arkansas Supreme Court affirmed 
the convictions and subsequently denied petitioners’ ap­
plication for rehearing.



4

ARGUMENT

Respondent submits that the petition does not dis­
close any substantial issue and the record in this case fails 
to support the conclusion of deprivation of any right made 
available by either the Constitution of the United States 
or the Constitution of Arkansas. The convictions affirmed 
by the Arkansas Supreme Court are in concert with both 
the spirit and letter of the most recent decisions rendered 
by this Court and the fundamental principles of the com­
mon law.

In order to facilitate both brevity and clarity of the 
questions, respondent has attempted to follow the organi­
zation of petitioners’ brief as closely as possible.

i

Act 14 is Constitutional as Enacted and Applied

A. The Convictions Rest Upon Evidence of Tres­
pass

Initially petitioners argue that their convictioos con­
stitute nothing more than racial discrimination. During 
their trial, they steadfastly maintained that, without any- 
preconceived arrangement, each had individually decided 
to go to Blass to have lunch. Thus, pure happenstance 
brought approximately twelve students wearing identify­
ing badges from a local college to the doors of a depart­
ment store simultaneously to flood the mezzanine tea 
room. This visit was apparently the first for each of 
the group. It was no wonder that the prosecutor ex­
pressed some skepticism when the petitioners denied hav­
ing any knowledge of the identity of any of the others in



5

the demonstration. The evidence adduced at trial was 
not only beyond a reasonable doubt as to each essential 
element of the offense; it was overwhelming.

To support their contention, petitioners rely entirely 
upon a quoted portion of the testimony of the manager of 
Blass with the erroneous conclusion that the only reason 
the petitioners were asked to leave was that they were 
Negroes (p. 8 of Petition). The one compelling reason 
expressed by the manager was that he did not “ want any 
disturbance”  (R.65). In answer to petitioners’ question 
concerning Shelley v. Kraemer, 334 U.S. 1, a store man­
ager having a public disturbance in the store whether it be 
caused by a group of Negroes or Caucasians is more dis­
agreeable than having a Negro as a neighbor or eating 
with a Negro. The record in this case discloses that a 
disturbance was well under way involving both ethnic 
groups which was just what the manager was seeking to 
avoid. Since it was the demonstrators’ avowed purpose 
to cause a disturbance, the manager’s action was not only 
reasonable, but laudable.

B. The Private Prerogative

Conceding arguendo that the basis of the exclusion of 
petitioners by Blass was solely race, there was no viola­
tion of constitutional rights. It is well settled that an 
individual may discriminate as he sees fit. The Civil 
Rights Cases, 109 U.S. 3; Burton v. Wilmington Parking 
Authority, 265 U.S. 715; Williams v. Howard Johnson’s 
Restaurant, 268 P. 2d 845 (4th Cir.) ; Griffin v. Collins, 
187 F. Supp. 149; Avent v. North Carolina, 373 U.S. 375; 
Gober v. City of Birmingham, 373 U.S. 277; Lombard v. 
Louisiana, 373 U.S. 267; Peterson v. City of Greenville, 
373 U.S. 244.



6

0. State Action

It is conceded that probably most discrimination by 
government is not valid. Brown v. Board of Education, 
347 U.S. 483; Buchanan v. Warley, 245 U.S. 60; Cooper v. 
Aaron, 358 U.S. 1; Peterson v. City of Greenville, supra. 
The critical question posed is : Has the State of Arkansas 
enforced racial discrimination? The answer appears as 
obvious to respondent as it does to petitioners although 
contrary conclusions are reached.

First, the doctrine of Shelley cannot be invoked to 
control the issue in controversy, for there is no legal or 
factual analogy with the case at bar. It is certainly 
doubtful that Shelley will ever be overruled, but the hold­
ing there will not be diminished in any respect if peti­
tioners’ convictions are allowed to remain undisturbed. 
Petitioners compare Shelley, at page 9 of the Petition, by 
asking who would think that a state court could require 
specific performance of a restaurateur who wanted to de­
segregate in derogation of an agreement of all of the 
restaurateurs in the community to remain segregated. To 
point the falicy of this, it would not be proper for that 
state court, or a federal court for that matter, to order 
specific performance in compliance to an agreement to 
integrate by a restaurateur who desired to r e m a i n  
segregated.

Second, the fact that these eases are the result of 
criminal prosecutions is of no avail to petitioners. The 
American system of jurisprudence without variance fixes 
the responsibility of law enforcement on the peace officer, 
prosecutor, attorney general, the courts and finally the 
public itself. The State of Arkansas is no different and 
it would not be of any benefit to cite and relate here the 
authority for these fundamental matters.



7

D. The Crime

These eases which are the concern of the application 
before this Court do not involve a delicate balancing of 
opposing constitutional rights. The foundation of these 
convictions rest rather on the universally recognized ele­
mentary principle of trespass. This Court aptly stated 
in Martin v. Strutkers, 319 U.S. 141, at 147:

“ Traditionally the American law punishes per­
sons who enter onto the property of another after 
having been warned by the owner to keep off. Gen­
eral trespass after warning statutes exist in at least 
twenty states, while similar statutes of narrower 
scope are on the books of at least twelve states 
more.”

The Arkansas Statute, §41-1433, supra, is merely a 
codification of the common law rule of trespass. See 
Carpenter v. State, 62 Ark. 286, 36 S.W. 900; State v. Cly- 
burn, 247 N.C. 455, 101 S.E. 2d 295.

In answer to the contention made by petitioners that 
the statute is discriminatory, the Arkansas Supreme Court 
observed that the law is not restricted to Negroes. Ap­
pendix to Petition, 8a, 9a.

Unquestionably, petitioners have made a persuasive 
argument that the application and enforcement of the 
statute has the result of fostering racial exclusionary prac­
tices. Respondent submits, however, that it is clear that 
such a disappointing result is purely incidental and sub­
servient to the greater right of freedom of choice of the 
individual, not the majority or minority, which must be 
predominate of all other rights. If this were not so 
there could be no other rights, in practice or theory, for 
all rights would be nullified by the abolition of the one of 
choice since all other freedoms derived their life breath 
from choice alone.



E. Burden, of Proof

Petitioners interject, for the first time in their peti­
tion that the burden of proof should have rested with the 
State of Arkansas to demonstrate there was no connec­
tion between so-called custom and state sanctions support­
ing customs. See Petition pp. 12-16.

There was neglect on the part of petitioners to raise 
this matter below so that the trial court and the Arkan­
sas Supreme Court might have an opportunity to prop­
erly rule on the question. Local procedure in a criminal 
case requires that objection be made, exception taken, 
and the matter included in the motion for new trial. Yar­
brough v. State, 206 Ark. 549, 176 S.W. 2d 702. More­
over, in a misdemeanor, only issues briefed can be prop­
erly considered. Rules of Ark. Sup. Court, Rule 11 (g). 
Reasonable procedural requirements created to facilitate 
the dispatch of justice have been honored by this Court. 
Edelman v. California, 344 U.S. 357; Brown v. Allen> 344 
U.S. 443, 503.

Inasmuch as petitioners failed to comply with the 
long established rules of the courts of Arkansas, they can­
not now be heard.

n

There are no Special Circumstances of Police Involvement 
to Constitute State Action

At Point II of the Petition, it is asserted that there 
were special circumstances involving the police which 
established the “ State action”  requirement which would 
place the case at bar within the purview of the Fourteenth 
Amendment. On the contrary, respondent submits that 
the record is. totally void of any evidence, expressed or 
inferred, which would support such an argument.



9

The sole basis of petitioners’ contention rests upon 
the testimony of Officer Baer who related at trial that 
while he was working in the vicinity of the Blass store, 
he observed and followed the group into Blass to a posi­
tion where he saw them taking seats in the mezzanine res­
taurant area, and then notified headquarters. The of­
ficer further testified that he incidentally talked to a store 
employee while the demonstrators sat down (R.53). Just 
how, by conversing with an unknown employee, the of­
ficer could insure that a particular offense would be gov­
erned by a particular statute is not revealed or explained 
by petitioners. Rather than benefit this argument with 
even a speculative theory, petitioners are content to re­
main mute on this subject.

It must be noted that Officeer Baer’s station was in 
a congested business district at the intersection of Main 
and Fourth Streets where Worthen Bank, one of Arkan­
sas’ largest financial institutions, Blass and Woolworth’s 
are located (R.66). It would not seem unusual that a 
policeman would be on duty in that area at the time the 
offenses were committed. Moreover, the rather large 
group divided and entered separate entrances on Fourth 
Street and Main Street wearing badges. This would at­
tract the attention of a less astute person, and in fact, 
succeeded in drawing a curious crowd (R.55,67). One 
of the petitioners had obviously gained some noteriety for 
the officer recognized him as a demonstrator (R.51).

It was not unreasonable that the situation demanded 
police scrutiny since petitioners did argue with store per­
sonnel, created a crowd, and refused to leave the dining 
area after they had been requested to do so (R.65). It 
most certainly would have been unreasonable for the 
police to have ignored the summons for assistance by the 
store. But petitioners would have the police to abandon



30

their responsibility and remain in the street. In other 
words petitioners insist that the police should have stayed 
out where they had been invited in and the petitioners 
should have been permitted to stay in even though they 
had been asked to leave. To say the least, such an argu­
ment is absurd and incomprehensible.

In conclusion, respondent agrees with the statement 
at page 18 of the petition that the situation presented in 
the instant cause “ is a far cry from the mere neutral use 
of state machinery”  found in Lombard v. Louisiana, supra, 
and Peterson v. City of Greenville, supra. In the ab­
sence of such proof, there can be no merit to the peti­
tioners’ submission of error.



11

CONCLUSION

The petitioners have entirely failed to substantiate 
one area of their petition to either logic or law. In fact, 
reason demands and the pronouncement of this Court 
governing the issues in controversy confirm, that the peti­
tion for writ of certiorari should be denied.

Respectfully submitted,

B ru ce  B e n n e t t

Attorney General 
State of Arkansas

J a c k  L . L essen berry

Assistant Attorney General 
Counsel for Respondent

Justice Building

Little Rock, Arkansas

October 1, 1963