Lupper v. Arkansas Brief for Respondent in Opposition
Public Court Documents
October 1, 1963

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Brief Collection, LDF Court Filings. Lupper v. Arkansas Brief for Respondent in Opposition, 1963. 6b03cd0a-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1df7f5b2-e64a-452c-b485-bef957762d4a/lupper-v-arkansas-brief-for-respondent-in-opposition. Accessed July 30, 2025.
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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