Bell v. Maryland Petition for a Writ of Certiorari to the Court of Appeals of Maryland

    I n the

(Emtrt of tip JlnxUb
October Term, 1961 

No............

E obebt Mack Bell, L ovellen P. Brown, Arimentha D. 
Bullock, R osetta Gainey, Annette Green, R obert M. 
J ohnson, R ichard McK oy, Aliceteen E. Mangum, J ohn 
R. Quarles, Sr., Muriel B. Quarles, L awrence M. 
P arker and Barbara F. W hittaker,

Petitioners,

State of Maryland.

PETITION FOR A WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF MARYLAND

J ack Greenberg
Constance B aker Motley
Derrick A. Bell, Jr.
Michael Meltsner 

10 Columbus Circle 
New York 19, New York

J uanita J ackson Mitchell 
1239 Druid Hill Avenue 
Baltimore 17, Maryland

T ucker R. Dearing
627 N. Aisquith Street 
Baltimore 2, Maryland

Attorneys for Petitioners



I N D E X

PAGE

Citations to Opinions Below .....................................  1

Jurisdiction .................................................................... 2

Questions Presented  ........ ...........................................  2

Statutory and Constitutional Provisions Involved........ 3

Statement .......     4

How the Federal Questions Were Raised and Decided 5

Reasons for Granting the Writ ...................................  7
I. The Decision Below Conflicts With Decisions of 

This Court Which Condemn the Use of State 
Power to Enforce a State Custom of Racial 
Segregation ...........— ......................................  7

II. The Decision Below Conflicts With Decisions of 
This Court Securing the Right of Freedom of 
Expression Under the Fourteenth Amendment 14

III. The Decision Below Conflicts With Decisions of 
This Court Barring Convictions Under Crimi­
nal Statutes and Warrants Which Give No 
Fair and Effective Warning That Petitioners’ 
Actions, Which Violate No Standard Required 
by the Plain Language of the Law, Are Pro­
hibited ................................................................  17

Conclusion 20



11

PAGE

Appendix

Opinion of Criminal Court of Baltimore C ity..........  la
Opinion of Court of Appeals of Maryland .............. 6a

T able of Cases

Abrams v. United States, 250 U. S. 616 ..................... 14

Boynton v. Virginia, 364 U. S. 454  .............................. 8
Breard v. Alexandria, 341 U. S. 622 ................. .........12,15
Brown v. Board of Education of Topeka, 347 U. S. 483 .. 8
Buchanan v. Warley, 245 U. S. 60 .............................. 9
Burton v. Wilmington Parking Authority, 365 U. S.

715 .............................................................................11, !2

Cantwell v. Connecticut, 310 U. S. 296, 307, 308 ..........  19
Champlin Rev. Co. v. Corporation Com. of Oklahoma,

286 U. S. 210 ............................................................. 19
Civil Rights Cases, 109 U. S. 3 ................................... 8,17

District of Columbia v. John R. Thompson Co., 346 
U. S. 100.....................................................................  10

Frank v. Maryland, 359 U. S. 360 ...............................  13
Freeman v. Retail Clerks Union, Washington Superior 

Court, 45 Lab. Rel. Ref. Man. 2334 (1959) ....... ...... 16

Garner v. Louisiana, 368 U. S. 157.......... .......11,14,16,19

Hudson County Water Co. v. McCarter, 209 U. S. 349 12

Mapp v. Ohio, 367 U. S. 643 .................................... 12,13
Marsh v. Alabama, 326 U. S. 501................................  9
Martin v. Struthers, 319 U. S. 141...............................  15



XU

PAGE

Monroe v. Pape, 365 U. S. 167 ...................................  8
Munn v. Illinois, 94 U. S. 113 ................................... 9,13

N.A.A.C.P. v. Alabama, 357 U. S. 449 ........................  14
Napue v. Illinois, 360 U. S. 264 ...................................  8
N.L.R.B. v. American Pearl Button Co., 149 F. 2d 258

(8th Cir. 1945) ....................................................... .. 15
N.L.R.B. v. Fansteel Metal Corp., 306 U. S. 240 ..........  15

People v. Barisi, 193 Misc. 934, 83 N. Y. S. 2d 277,
279 (1948) .................................................................. 15

People v. King, 110 N. Y. 419, 18 N. E. 245 (1888) An­
notation 49 A. L. R. 505 ..... ..................... ..................  10

Pickett v. Kuchan, 323 111. 138, 153 N. E. 667, 49
A. L. R. 499 (1926) ...................................................  10

Poe v. "Oilman, 367 U. S. 497 ........................... .........  12

Railway Mail Assn. v. Corsi, 326 U. S. 88 ...... .......... 10,11
Republic Aviation Corp. v. N.L.R.B., 324 U. S. 793 ....9,15

Schenck v. United States, 249 U. S. 47, 52 .................  17
Screws v. United States, 325 U. S. 91 ........................  8
Shelley v. Kraemer, 334 U. S. 1 - ..............................8, 9,12
Smith v. California, 361 U. S. 147 ...................-........ 19
State of Maryland v. Williams, Baltimore City Court,

44 Lab. Rel. Ref. Man. 2357, 2361 (1959) .............  16
Stromberg v. California, 283 U. S. 359 ........................  14

Thompson v. City of Louisville, 362 U. S. 199............- 19
Thornhill v. Alabama, 310 U. S. 88 .........................12,14,15

United States v. Willow River Power Co., 324 U. S. 
499 ........................................................... -................. 9



IV

PAGE

United Steelworkers v. N.L.R.B., 243 F. 2d 593, 598 
(D. C. Cir. 1956) reversed on other grounds, 357 
U. S. 357) .................................................................... 15

West Virginia State Board of Education v. Barnette,
319 U. S. 624 ..............................................................  14

Western Turf Asso. v. Greenberg, 204 U. S. 359 ...... 10
Winters v. New York, 333 U. S. 507 .............................. 19

Statutes

Article 27, §577 of the Code of Maryland (1957) ..........  3

Other Authorities

Henkin, Shelley v. Kraemer: Notes for a Revised Opin­
ion, 110 U. of Pa. L. Rev. 473 (1962) ..................... 17



Isr the

(Hxutrt of tip Init^  States
October Term, 1961 

No............

R obert Mack Bell, L ovellen P. Brown, Arimentha D. 
Bullock, R osetta Gainey, A nnette Green, R obert M. 
J ohnson, R ichard McK oy, A liceteen E. Mangum, J ohn 
R. Quarles, Sr., Muriel B. Quarles, L awrence M. 
P arker and Barbara P. W hittaker,

Petitioners,
—y.—

State of Maryland.

PETITION FOR A WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF MARYLAND

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Court of Appeals of Maryland en­
tered in the above-entitled case on January 9, 1962.

Citations to Opinions Below

The opinion of the Court of Appeals of Maryland is 
unreported as of yet and is set forth in the appendix 
hereto, infra, pp. 6a-8a. The opinion of the Criminal Court 
of the City of Baltimore is unreported as of yet and is 
set forth in the appendix hereto, infra, pp. la-5a.



2

Jurisdiction

The judgment of the Court of Appeals of Maryland was 
entered January 9, 1962, infra, pp. 6a-8a. On April 5, 
1962, Mr. Justice Black signed an order extending peti­
tioners’ time for filing petition for writ of certiorari to 
and including June 8, 1962.

The jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code, §1257(3), petitioners having 
asserted below and asserting here deprivation of rights, 
privileges and immunities secured by the Constitution of 
the United States.

Questions Presented

Whether Negro petitioners were denied due process of 
law and equal protection of the laws as secured by the 
Fourteenth Amendment:

1. When arrested and convicted of trespass for fail­
ing to leave a public restaurant which in accordance 
with community custom adhered to a policy of ex­
cluding Negroes.

2. When petitioners were denied freedom of ex­
pression secured by the Fourteenth Amendment when 
convicted of trespass upon refusal to leave a public 
restaurant while engaging in a sit-in protest demon­
stration.

3. When said convictions were obtained under a 
statute so vague as to give no fair warning that their 
conduct was prohibited.



3

Constitutional and Statutory Provisions Involved

1. This case involves §1 of the Fourteenth Amendment 
to the Constitution of the United States.

2. This case involves Article 27, §577 of the Code of 
Maryland (1957), which states:

Any person or persons who shall enter upon or 
cross over the land, premises or private property 
of any person or persons in this State after having 
been duly notified by the owner or his agent not to 
do so shall be deemed guilty of a misdemeanor, and 
on conviction thereof before some justice of the peace 
in the county or city where such trespass may have 
been committed be fined by said justice of the peace 
not less than one, nor more than one hundred dollars, 
and shall stand committed to the jail of county or 
city until such fine and costs are paid; provided, how­
ever, that the person or persons so convicted shall 
have the right to appeal from the judgment of said 
justice of the peace to the circuit court for the county 
or Criminal Court of Baltimore where such trespass 
was committed, at any time within ten days after 
such judgment was rendered; and, provided, further, 
that nothing in this section shall be construed to in­
clude within its provisions the entry upon or crossing 
over any land when such entry or crossing is done 
under a bona fide claim of right or ownership of said 
land, it being the intention of this section only to 
prohibit any wanton trespass upon the private land 
of others.



4

Statement

Petitioners, twelve Negro students, were arrested for 
engaging in a sit-in protest in a Baltimore, Maryland 
restaurant (Tr. 3-5), and were convicted of trespass in 
violation of Article 27, Section 577 of the Maryland Code, 
1957 ed.

A group of fifteen to twenty Negro students (Tr. 7) 
including petitioners, entered Hooper’s Restaurant, Balti­
more about 4:15 p.m., June 17, 1960 (Tr. 7). In the lobby 
of the restaurant, the hostess, acting on the orders of 
Mr. Hooper, the owner, told them: “I’m sorry, but we 
haven’t integrated as yet” (Tr. 7, 8). She later testified 
that the group was properly dressed, and that, had they 
been white people, they would have been seated (Tr. 14).

Q. . . . “Now, you refused them admission to this 
restaurant solely on the basis of their color, is that 
correct? A. Yes, sir” (Tr. 13-14).

Similar admissions were made by the manager (Tr. 20). 
The petitioners took seats at tables both in the main dining 
room and in a lower-level cafeteria (Tr. 16). At the time, 
the restaurant manager was explaining to a leader of the 
group that the restaurant policy prohibits service to 
Negroes (Tr. 16, 43-44). While many of the group sat one 
to a table, this action did not nor was it intended to inter­
fere with the service of other customers (Tr. 51-52).

At the owners’ request, police were called and the State 
trespass statute was read to the group (Tr. 17), some 
of whom left the premises (Tr. 18). Warrants were ob­
tained against the others who failed to leave after an ad­
ditional warning (Tr. 18-19).

Petitioners waived preliminary hearings in the Mag­
istrates’ Court, and were indicted by the Grand Jury of



5

Baltimore City and found guilty of trespass after trial 
without jury in the Criminal Court of Baltimore, Each 
petitioner was fined $10.00, which fine was suspended be­
cause as the Trial Court found, “ . . . these people are not 
law-breaking people; that their action was one of principle 
rather than any intentional attempt to violate the law.” 
Petitioners appealed to the Maryland Court of Appeals 
which affirmed.

Mr. Hooper, the restaurant owner, testified, “I wanted 
to prove to them it wasn’t my policy, my personal prejudice, 
but that I ’m at the mercy of my customers” (Tr. 25). “I 
go on record as I favor what you people are trying to do . . . 
but I do not approve of your method in trying to reach it” 
(Tr. 32-33).

A leader of the group testified that they had gone to 
the restaurant hoping to be served (Tr. 45); that while 
they knew Hooper’s policy was to serve only whites, eating 
places sometimes changed their policies on the spot when 
the group presented itself and requested service (Tr. 57- 
58). Having been refused service, petitioners proceeded 
to inform the public of the discriminatory nature of 
Hooper’s policy (Tr. 46). Some began picketing outside 
of the restaurant (Tr. 46) while others sought a similar 
goal by sitting quietly at the tables waiting to be served.

How the Federal Questions Were Raised 
and Decided Below

At the close of the State’s case in the trial court and again 
at the conclusion of petitioners’ case, petitioners moved 
for a directed verdict in their favor (R. 41, 76). While the 
grounds upon which these motions -were based do not ap­
pear in the record, it is clear from the opinion of the Crimi­
nal Court of the City of Baltimore, infra, pp. la-5a, and the



6

opinion of the Court of Appeals of Maryland, pp. 6a-8a, 
that federal constitutional questions were properly raised 
in the Courts below and decided adversely to petitioners’ 
contentions.

The Court of Appeals of Maryland summarized peti­
tioners’ contentions as follows:

“The appellants contend that the State may not use 
its judicial process to enforce the racially discrimina­
tory practices of a private owner, once that owner has 
opened his property to the general public, and that 
the Maryland Criminal Trespass Statute, although con­
stitutional on its face, has been unconstitutionally ap­
plied” (infra, p. 7a).

“The appellants further contend, however, that the 
Maryland Statute, as applied, denies to them the free­
dom of speech guaranteed under the First and Four­
teenth Amendments to the United States Constitution” 
(infra, pp. 7a-8a).

The Court of Appeals of Maryland explicitly rejected 
petitioners’ constitutional objections, infra, pp. 7a-8a, hold­
ing:

“We find it unnecessary to dwell on these contentions 
at length because the same arguments were fully con­
sidered and rejected by this Court in two recent cases, 
Drews v. State, 224 Md. 186, and Griffin & Greene v. 
State, 225 Md. 422. . . . and that the statutory refer­
ences to entry upon or crossing over, cover the case 
of remaining upon land after notice to leave.” 1

1 Both Drews v. State (No. 840, 1960 Term; renumbered No. 71, 
1961 Term) and Griffin v. State (No. 287, 1961 Term) are sit-in 
cases pending before this Court.



7

The Court further held, infra, p. 8a, that:
“On principle, we think the right to speak freely and 

to make public protest does not import a right to invade 
or remain upon the property of private citizens, so 
long as private citizens retain the right to choose their 
guests or customers. We construe the Marsh case, 
supra, as going no further than to say that the public 
has the same right of discussion on the sidewalks of 
company towns as it has on the sidewalks of munici­
palities. That is a far cry from the alleged right to 
engage in a ‘sit-in’ demonstration.”

REASONS FOR GRANTING THE WRIT

I.
The Decision Below Conflicts With Decisions of This 

Court Which Condemn the Use of State Power to Enforce 
a State Custom of Racial Segregation,

The record in this case clearly shows that the petitioners 
were refused service, ordered to leave the Hooper Res­
taurant, and arrested and convicted of a crime because they 
were Negroes. Without dispute, the practice of the Hooper 
Restaurant was to open its doors to the public and stand 
ready to serve food to white persons and to refuse such 
service to Negroes. It is also apparent that the arrests 
were made in support of this discrimination, and that the 
trial court convicted petitioners on evidence plainly indi­
cating that race, and race alone, was the basis for the order 
to leave and the consequent arrest for failing to leave. 
This is thus a case where the difference in treatment to 
which petitioner has been subjected is clearly a racial 
discrimination.



8

There are several dominant and relevant components 
of action by state officials in the chain of events leading to 
appellant’s conviction and punishment for violating the 
racially discriminatory customs. Here, as in all criminal 
prosecutions, there is action by state officers in the persons 
of the police, prosecutors and judges; the official actions of 
such officers are “state action” within the meaning of the 
Fourteenth Amendment. The subject of judicial action as 
“state action” was treated exhaustively in part II of Chief 
Justice Vinson’s opinion in Shelley v. Kraemer, 334 U. S. 
1, 14-18; cf. Boynton v. Virginia, 364 U. S. 454; policemen 
(Screws v. United States, 325 IT. S. 91; Monroe v. Pape, 
365 U. S. 167) and prosecutors (Napue v. Illinois, 360 TJ. S. 
264) are equally subject to the restraints of the Fourteenth 
Amendment.

Ever since the Civil Bights Cases, 109 IJ. S. 3, 17, it has 
been conventional doctrine that racial discrimination when 
supported by state authority, violates the Fourteenth 
Amendment’s equal protection clause; and since Brown v. 
Board of Education, 347 U. S. 483, it has been settled that 
racial segregation constitutes a forbidden discrimination.

However, in this case the involvement of the public law 
enforcement and judicial officers in the racial discrimina­
tion practiced against petitioner, through their use of the 
state’s criminal law machinery to support and enforce it, 
is now sought to be excused because, it is said, there is also 
“private action” involved, and the state is said to be merely 
enforcing “private property” rights through its criminal 
trespass laws.

It is said that only “trespassers” and not Negroes are 
punished by the state, and thus it is private property rights 
and not racial discrimination that is being preserved by 
the state’s officers and laws. But we must ask, what is the 
nature of the property right here recognized and enforced



9

by the state? Moreover, does this property right have any 
proper relation to the state’s legitimate interest in the pro­
tection of the right to privacy or state customs and laws?

As a starting point it is fit to observe, as this Court did 
in Shelley v. Kraemer, supra, that the mere fact that prop­
erty rights are involved does not settle the matter. The 
Court said at 334 U. S. 1, 22:

“Nor do we find merit in the suggestion that prop­
erty owners who are parties to these agreements are 
denied equal protection of the laws if denied access to 
the courts to enforce the terms of restrictive covenants 
and to assert property rights which the state courts 
have held to be created by such agreements. The Con­
stitution confers upon no individual the right to demand 
action by the State which results in the denial of equal 
protection of the laws to other individuals. And it 
would appear beyond question that the power of the 
State to create and enforce property interests must be 
exercised within the boundaries defined by the Four­
teenth Amendment. Cf. Marsh v. Alabama, 326 U. S. 
501, 90 L. ed. 265, 66 S. Ct. 276 (1946).”

This Court has said on several occasions, “that dominion 
over property springing from ownership is not absolute 
and unqualified.” Buchanan v. War ley, 245 U. S. 60, 74; 
United States v. Willow River Power Go., 324 IT. S. 499, 
510; Marsh v. Alabama, 326 IT. S. 501, 506; cf. Munn v. 
Illinois, 94 U. S. 113. As the Court said in Marsh, supra, 
“The more an owner, for his advantage, opens up his prop­
erty for use by the public in general, the more do his rights 
become circumscribed by the statutory and constitutional 
rights of those who use it. Cf. Republic Aviation Corp. v. 
N. L. R. B., 324 IT. S. 793, 796, 802.”



10

Obviously then further inquiry must be made as to the 
specific nature of the property right of the Hooper Res­
taurant which is being enforced by the State in this criminal 
trespass prosecution. At the outset, it is clear that the case 
does not involve state enforcement of a property owner’s 
desire to exclude a person or persons for reasons of whim 
or caprice. The owner testified that he refused to serve 
the petitioners and ordered them from his restaurant in 
order to conform with the community custom and a racially 
segregated “way of life” which has been fostered and 
buttressed bylaw (Tr. 25).

Petitioners submit that it is readily apparent that the 
property interest being enforced against them on behalf of 
the Hooper Restaurant, bears no substantial relation to any 
constitutionally protected interest of the property owner 
in privacy in the use of his premises. The State is not in 
this prosecution engaged in protecting the right to privacy. 
It has long been agreed by the courts that a state can “take 
away” this property right to racially segregate in public 
accommodation facilities without depriving an owner of 
Fourteenth Amendment rights. Western Turf Asso. v. 
Greenberg, 204 U. S. 359; Railway Mail Ass’n v. Corsi, 
326 H. S. 88; Pickett v. Kuchan, 323 111. 138, 153 N. E. 667, 
49 A. L. R. 499 (1926); People v. King, 110 N. Y. 418, 18 
N. E. 245 (1888); Annotation 49 A. L. R. 505; cf. District 
of Columbia v. John R. Thompson Co., 346 H. S. 100.

And indeed a great number of states in our nation have 
enacted laws making it criminal to engage in just the type 
of racially discriminatory use of private property which 
the Restaurant seeks state assistance in preserving here.2

From the fact that the States can make the attempted 
exercise of such a “right” a crime, it does not follow neces-

2 See collections of such laws in Konvitz, A Century of Civil 
Rights, passim (1961).



11

sarily and automatically that they must do so, and must 
refuse (as petitioners here urge) to recognize such a claimed 
property right to discriminate racially in places of public 
accommodation. But the fact that the States can consti­
tutionally prohibit such a use of property and that when 
they do so they are actually conforming to the egalitarian 
principles of the Fourteenth Amendment (Railway Mail 
Ass’n v. Corsi, supra, at 93-94) makes it evident that the 
property interest asserted by the Hooper Restaurant is 
very far from an inalienable or absolute property right. 
Indeed the property owner here is attempting to do some­
thing that the state itself could not permit him to do on 
state property leased to him for his business use (Burton 
v. Wilmington Parking Authority, 365 U. S. 715), or re­
quire or authorize him to do by positive legislation (cf. 
Mr. Justice Stewart’s concurring opinion in Burton, supra).

A basic consideration in this case is that the restaurant 
involved is a public establishment in the sense that it is 
open to serve the public and is part of the public life of 
the community (Mr. Justice Douglas, concurring in Gar­
ner v. Louisiana, 368 U. S. 157, 176). As a consequence 
of the public use to which the property has been devoted 
by the owner, this case involves no real claim that the 
right to privacy is being protected by this \ise of the State’s 
trespass laws. And, of course, it does not follow from the 
conclusion that the State cannot enforce the racial bias 
of the operator of a restaurant open to the public, that it 
could not enforce a similar bias by the use of trespass laws 
against an intruder into a private dwelling or any other 
property in circumstances where the state was exercising 
its powers to protect an owner’s privacy. This Court has 
recently reiterated the principle that there is a constitu­
tional “right to privacy” protected by the Due Process



12

clause of the Fourteenth Amendment, Mapp v. Ohio, 367 
U. S. 643, 6 L. ed. 2d 1081, 1090, 1103, 1104; see also Poe v. 
Ullman, 367 U. S. 497 (dissenting opinions).

It is submitted that due consideration of the right to 
privacy affords a sound and rational basis for determining 
whether cases which might arise in the future involving 
varying situations should be decided in the same manner 
urged by petitioner here—that is, against the claimed prop­
erty interest. Only a very absolutist view of the property 
“right” to determine those who may come or stay on one’s 
property on racial grounds—an absolutist rule yielding 
to no competing considerations—would require that the 
same principles apply through the whole range of prop­
erty uses, public connections, dedications, and privacy in­
terests at stake. The Court has recognized the relation 
between the right of privacy and property interests in the 
past. See e.g. Thornhill v. Alabama, 310 U. S. 88, 105-106; 
Breard v. Alexandria, 341 U. S. 622, 626, 638, 644.

Petitioners submit that a. property right to determine 
on a racial basis who can stay on one’s property cannot be 
absolute at all, for this claimed right collides at some 
points with the Fourteenth Amendment right of persons 
not to be subjected to racial discrimination at the hand 
of the government. Burton v. Wilmington Parking Au­
thority, supra; Shelley v. Kraemer, supra. Mr. Justice 
Holmes said in Hudson County Water Co. v. McCarter, 
209 IT. S. 349, 355:

All rights tend to declare themselves absolute to their 
logical extreme. Yet all in fact are limited by the 
neighborhood of principles of policy which are other 
than those on which the particular right is founded, 
and which become strong enough to hold their own 
when a certain point is reached.



13

Petitioners certainly do not contend that the principles 
urged to prevent the use of trespass laws to enforce racial 
discrimination in a lunch counter operated as a public busi­
ness would prevent the state from enforcing a similar bias 
in a private home where the right of privacy has its great­
est meaning and strength. A man ought to have the right 
to order from his home anybody he prefers not to have in 
it, and ought to have the help of the government in making 
his order effective. Indeed, the State cannot constitutionally 
authorize an intrusion into a private home except in the 
most limited circumstances with appropriate safeguards 
against abuses. Mapp v. Ohio, supra; cf. Frank v. Mary­
land, 359 TJ. S. 360. Racial discrimination in a private home, 
or office, or other property where the right of privacy is 
paramount is one thing. Racial discrimination at a public 
restaurant is quite another thing indeed.

Finally the property involved in this case is “affected 
with a public interest,” Munn v. Illinois, 94 U. S. 113. By 
its use it has become “clothed with a public interest [is] 
of public consequence, and affect[s] the community at 
large” (id. at 126).

It is submitted that the totality of circumstances in this 
case, including the actions of the State’s officers in arrest­
ing, prosecuting and convicting petitioners, the public 
character of the business property involved, the plain and 
invidious racial discrimination involved in the asserted 
property rights being protected by the state, the absence 
of any relevant component of privacy to be protected by 
the state’s action in light of the nature of the owner’s use 
of his property, and the state custom of segregation which 
has created or at least substantially buttressed the type of 
discriminatory practices involved, are sufficient to require 
a determination that the petitioners’ trespass convictions 
have abridged their rights under the Fourteenth Amend­
ment.



14

II.
The Decision Below Conflicts With Decisions of This 

Court Securing the Right of Freedom of Expression 
Under the Fourteenth Amendment.

Petitioners were engaged in the exercise of free expres­
sion, by verbal and nonverbal requests to the management 
for service, and nonverbal requests for nondiscriminatory 
restaurant service, implicit in their continued remaining 
in the dining area when refused service. As Mr. Justice 
Harlan wrote in Garner v. Louisiana: “We would surely 
have to be blind not to recognize that petitioners were sit­
ting at these counters, when they knew they would not be 
served, in order to demonstrate that their race was being 
segregated in dining facilities in this part of the country.” 
7 L. ed. 2d at 235-36. Petitioners’ expression (asking for 
service) was entirely appropriate to the time and place at 
which it occurred. They did not shout or obstruct the con­
duct of business. There were no speeches, picket signs, 
handbills or other forms of expression in the store possibly 
inappropriate to the time and place. Eather they offered to 
purchase food in a place and at a time set aside for such 
transactions. Their protest demonstration was a part of 
the “free trade in ideas” (Abrams v. United States, 250 TJ. S. 
616, 630, Holmes, J dissenting), within the range of liber­
ties protected by the Fourteenth Amendment, even though 
nonverbal. Stromberg v. California, 283 U. S. 359 (display 
of red flag); Thornhill v. Alabama, 310 U. S. 88 (picketing); 
West Virginia State Board of Education v. Barnette, 319 
U. S. 624, 633-634 (flag salute); N.A.A.C.P. v. Alabama, 357 
U. S. 449 (freedom of association).

Questions concerning freedom of expression are not re­
solved merely by reference to the fact that private property 
is involved. The Fourteenth Amendment right to free ex-



15

pression on private property takes contour from the cir­
cumstances, in part determined by the owner’s right of 
privacy, and his use and arrangement of his property. In 
Breard v. Alexandria, 341 U. S. 622, the Court balanced the 
“householder’s desire for privacy and the publisher’s right 
to distribute publications” in the particular manner in­
volved, upholding a law limiting the publisher’s right to 
solicit on a door-to-door basis. But cf. Martin v. Struthers, 
319 U. S. 141 where different kinds of interests led to a 
corresponding difference in result. Moreover, the manner 
of assertion and the action of the State, through its officers, 
its customs and its creation of the property interest are to 
be taken into account.

Thus, petitioners submit that a determination of their 
right to free expression requires consideration of the total­
ity of circumstances respecting the owner’s use of the prop­
erty and the specific interest which state judicial action is 
supporting. Marsh v. Alabama, 326 U. S. 501.

In Marsh, supra, this Court reversed trespass convictions 
of Jehovah’s Witnesses who went upon the privately owned 
streets of a company town to proselytize for their faith, 
holding that the conviction violated the Fourteenth Amend­
ment. In Republic Aviation Corp. v. N.L.R.B., 324 U. S. 793, 
the Court upheld a labor board ruling that lacking special 
circumstances employer regulations forbidding all union 
solicitation on company property constituted unfair labor 
practices. See Thornhill v. Alabama, supra, involving 
picketing on company-owned property; see also N.L.R.B. 
v. American Pearl Button Co., 149 F. 2d 258 (8th Cir. 
1945); United Steelworkers v. N.L.R.B., 243 F. 2d 593, 
598 (D. C. Cir. 1956), reversed on other grounds, 357 U. S. 
357, and compare the cases mentioned above with N.L.R.B. 
v. Fansteel Metal Corp., 306 U. S. 240, 252, condemning an 
employee seizure of a plant. In People v. Barisi, 193 Misc.



16

934, 86 N. Y. S. 2d 277, 279 (1948) the Court held that 
picketing within Pennsylvania Railroad Station was not a 
trespass; the owners opened it to the public and their 
property rights were “circumscribed by the constitutional 
rights of those who use it.” See also Freeman v. Retail 
Clerks Union, Washington Superior Court, 45 Lab. Rel. Ref. 
Man. 2334 (1959); and State of Maryland v. Williams, Balti­
more City Court, 44 Lab. Rel. Ref. Man. 2357, 2361 (1959), 
which on Fourteenth Amendment and Labor Management 
Relations Act grounds decided that pickets may patrol 
private property within a privately owned shopping center.

As Mr. Justice Douglas said while concurring in Garner 
v. Louisiana, 368 U. S. 157:

“Restaurants, whether in a drug store, department 
store, or bus terminal, are a part of the public life of 
most of our communities. Though they are private 
enterprises, they are public facilities in which the states 
may not enforce a policy of racial discrimination.”

The court below denied that the trespass convictions of 
the petitioners denied any First or Fourteenth Amendment 
rights stating:

“On principle, we think the right to speak freely and 
to make public protest does not impart a right to invade 
or remain upon the property of private citizens, so long 
as private citizens retain the right to choose their 
guests or customers” (App. 8a).

But in this case, the property had been opened to the public, 
for profit, and race alone was the basis for refusal to serve 
petitioners. Significantly, the refusal of service was not 
because of the owner’s caprice, but because he felt con­
strained to conform to the racial prejudice of the com­
munity. Thus, under the circumstances of this case, it is



17

not a general property right which the state enforced by 
the arrest of petitioners, bnt a community pattern of racial 
discrimination which the state clearly may not sanction, 
Civil Rights Cases, 109 U. S. 3, and should not be permitted 
to encourage or support. See Henkin, Shelley v. Kraemer: 
Notes for a Revised Opinion, 110 U. of Pa. L. Rev. 473, 499 
(1962).

Where free expression rights are involved, the question 
for decision is whether the relevant expressions are “in 
such circumstances and . . .  of such a nature as to create 
a clear and present danger that will bring about the sub­
stantive evil” which the state has the right to prevent. 
Schenck v. United States, 249 U. S. 47, 52. The only “sub­
stantive evil” sought to be prevented by this trespass 
prosecution is the elimination of racial discrimination and 
the stifling of protest against it; but this is not an “evil” 
within the State’s power to suppress because the Four­
teenth Amendment prohibits state support of racial dis­
crimination.

III.
The Decision Below Conflicts With the Decisions of 

This Court Barring Convictions Under Criminal Statutes 
and Warrants Which Give No Fair and Effective Warning 
That Petitioners’ Actions, Which Violate No Standard 
Required by the Plain Language of the Law, Are Pro­
hibited.

The fact that the arrest and conviction were designed 
to short circuit a bona fide protest is strengthened by the 
necessity of the state court to make a strained interpreta­
tion of the statute in order to bring petitioners’ conduct 
within its ambit. Petitioners’ conviction for trespass rests 
on an interpretation which flies in the face of the plain 
words of the statute, which reads:



18

“Any person or persons who shall enter upon or cross 
over the land, premises or private property of any 
person or persons in this State after having been duly 
notified by the owner or his agent not to do so shall be 
deemed guilty of a misdemeanor, and on conviction 
thereof before some justice of the peace in the county 
or city where such trespass may have been committed 
be fined by said justice of the peace not less than one, 
nor more than one hundred dollars, and shall stand 
committed to the jail of county or city until such fine 
and costs are paid; provided, however, that the person 
or persons so convicted shall have the right to appeal 
from the judgment of said justice of the peace to the 
circuit court for the county or Criminal Court of Balti­
more where such trespass was committed, at any time 
within ten days after such judgment was rendered; 
and provided, further, that nothing in this section 
shall be construed to include within its provisions the 
entry upon or crossing over any land when such 
entry or crossing is done under a bona fide claim of 
right or ownership of said land, it being the intention 
of this section only to prohibit any wanton trespass 
upon the private land of others.” (Emphasis added.)

In this case, however, petitioners had entered the restau­
rant and asked to be assigned seats at a table before they 
were advised by the hostess, “We have not integrated as 
yet” (Tr. 8). They had taken seats and had discussion 
about the restaurant’s policy with both the manager and 
the owner before the trespass statute was read to them and 
they were formally asked to leave. Clearly petitioners’ 
failure to obey this request does not bring their action 
within the purview of this statute. Under the Court of 
Appeals of Maryland’s construction of the law conduct is 
reached which the words of the statute do not fairly and



19

effectively proscribe, thus depriving petitioners of any 
notice that their acts would subject them to criminal liabil­
ity. There is no assertion that petitioners “enter [ed] . . . 
after having been notified . . . not to do so” only that they 
remained after being told to leave. In terms of the clear 
command of the statute as to entry after notice, this case 
would fall within the principle of Thompson v. Louisville, 
362 U. S. 199 as a conviction resting on no evidence of 
guilt.

The vice of vagueness is particularly odious where the 
right of free speech is put in jeopardy. Conduct involving 
free speech can only be prohibited by a statute “narrowly 
drawn to define and punish specific conduct as constitute a 
clear and present danger to substantial interest of the 
state.” Cantwell v. Connecticut, 310 U. S. 296, 307, 308; 
Garner v. Louisiana, 368 TJ. S. 157,185 (Mr. Justice Harlan 
concurring). If the Court of Appeals of Maryland can 
affirm the convictions of these petitioners by such a con­
struction they have exacted obedience to a rule or standard 
that is so ambiguous and fluid as to be no rule or standard 
at all. Champlin Ref. Co. v. Corporation Com. of Oklahoma, 
286 U. S. 210. Such a result cannot but have a “poten­
tially inhibiting effect on speech.” Smith, v. California, 
361 U. S. 147, 151. But when free expression is involved, 
the standard of precision is greater; the scope of construc­
tion must, therefore, be less. If this is the case when a 
State Court limits a statute it must a fortiori be the case 
when a State Court expands the meaning of the plain 
language of a statute. Winters v. New York, 333 IJ. S. 
507, 512.



20

CONCLUSION

W h e r e f o r e , for the foregoing reasons petitioners pray 
that the Petition for Writ of Certiorari be granted.

Bespectfully submitted,

J ack Greenberg
Constance Baker Motley
Derrick A. Bell, Jr.
Michael Meltsner 

10 Columbus Circle 
New York 19, New York

J uanita J ackson Mitchell 
1239 Druid Hill Avenue 
Baltimore 17, Maryland

T ucker B. Dearing

627 N. Aisquith Street 
Baltimore 2, Maryland

Attorneys for Petitioners



APPENDIX



APPENDIX

I n the

CRIMINAL COURT 
P ast III of B altimore City 

Indictment 2523 Y/1960

State of Maryland,

-v.-

R obert Mack Bell, L oyellen P. Brown, Arimentha D. 
Bullock, R osetta Gainey, A nnette Green, R obert M. 
J ohnson, R ichard McK oy, Aliceteen E. Mangum, J ohn 
R, Quarles, Sr., Muriel B. Quarles, Lawrence M. 
P arker and Barbara F. W hittaker.

MEMORANDUM OPINION

Byrnes, J .

On July 12, 1960 the above named defendants, students 
attending local schools, were indicted by the Baltimore City 
Grand Jury for trespassing on the premises of Hooper’s 
Restaurant at the southwest corner of Fayette and Charles 
Streets in Baltimore City. The first count of the indictment 
charges that the defendants

“ . . .  on the seventeenth day of June, in the year of 
our Lord nineteen hundred and sixty, at the City afore­
said, unlawfully did enter upon and cross over the land, 
premises and private property of a certain corporation 
in this State, to wit, Hooper Food Co., Inc., a corpora­
tion, after having been duly notified by Albert Warfel,



2a

Memorandum Opinion

who was then and there the servant and agent for 
Hopper [sic] Food Co., Inc., a corporation, not to do 
so; contrary to the form of the Act of Assembly in such 
case made and provided, and against the peace, govern­
ment and dignity of the State.”

The second count charges that the defendants
“ . . . unlawfully did enter and trespass on certain 

property of Hooper Food Co., Inc., a corporation which 
said property was then and there posted against 
trepassers [sic] in a conspicuous manner; contrary to 
the form of the Act of Assembly in such case made and 
provided, and against the peace, government and dig­
nity of the State.”

Testimony at the trial disclosed that on June 17, 1960, 
the defendants entered the restaurant while it was open for 
business and requested the hostess, Ella Mae Dunlap, to 
assign them seats at tables for the purpose of being served. 
She informed them that it was not the policy of the res­
taurant to serve Negroes, and that she was sorry but she 
could not seat or serve any of the defendants. She ex­
plained to them that she was following the instructions of 
the owner of the restaurant.

Despite this refusal, defendants persisted in their de­
mands and, brushing by the hostess, took seats at various 
tables on the main floor and at the counter in the basement. 
Not being served, which they apparently anticipated, some 
of the defendants began to read their school books.

The trespass statute, Article 27, section 577 of the Mary­
land Code, 1957 Ed. was read to the defendants and they 
were told by the manager, Albert R. Warfel, that they were 
trespassers, and they were then requested to leave. Upon



3a

Memorandum Opinion

their refusal to do so, police were summoned. Warfel was 
advised by the police that in order to have defendants 
ejected by the Baltimore City Police Department it would 
be necessary for him to obtain warrants for their arrest 
for trespassing. Warrants were obtained and the arrests 
followed. Defendants waived a hearing before the Magis­
trate at the Central Police Station and the case was referred 
to the Grand Jury.

Defendants contend that their ejection from the restau­
rant, and subsequent arrest were violative of the Equal 
Protection and Due Process Clauses of the Fourteenth 
Amendment to the Constitution of the United States. The 
position of the State and the Restaurant Association of 
Maryland, appearing as Amicus Curiae, is that these clauses 
of the Fourteenth Amendment do not prohibit discrimina­
tory action by private individuals, such as the proprietor of 
the restaurant here, nor do they inhibit state action in the 
form of arrest and conviction for trespass of persons who 
defy the proprietor’s request to leave his property regard­
less of his reason for doing so. No cases supporting defen­
dants’ contention were cited to or found by this Court; on 
the other hand the State’s position is firmly rooted in au­
thority.

At the trial of this case, defendants’ counsel repeated 
arguments made before the Supreme Court of the United 
States in the highly-publicized case of Boynton v. Virginia, 
364 U. S. 454 (1960) and requested this Court to withhold 
its decision pending the outcome of that case. Since then 
the Boynton case had been decided, but nothing in the 
Court’s opinion gives solace to defendants. While it is 
true that the Supreme Court reversed the Virginia Court’s 
conviction of Boynton, an alleged trespasser in a privately 
owned restaurant, the Court avoided the Constitutional



4a

Memorandum Opinion

questions there presented (the same ones advanced here) 
and held that the restaurant at an interstate bus terminal, 
although privately owned, was an “integral part of the bus 
carriers transportation service for interstate passengers” 
and any racial discrimination in the restaurant violated pro­
visions of the Interstate Commerce Act barring discrimina­
tions of all kinds.

It is significant, this Court believes, that in Boynton, 
supra, the Court was careful to point out that “We are not 
holding that every time a bus stops at a wholly independent 
roadside restaurant the Interstate Commerce Act requires 
that restaurant service be supplied in harmony with the 
provisions of that Act.”

Two recent decisions clearly in point are determinative 
of the principle that in the absence of appropriate legisla­
tion forbidding racial discrimination the operators of pri­
vately owned restaurants, even though generally open to 
the public, may discriminate against persons of another 
color or race, however unfair or unjust such policy may be 
deemed to be.

In a per curiam opinion the United States Court of Ap­
peals for the Fourth Circuit, Slack v. White Tower, 284 
F. 2d 746 (1960), affirmed Judge Koszel Thomsen’s decision 
holding, after an excellent summation of the applicable 
law, that a restaurant owner in refusing service to a Negro, 
violated no law nor did such refusal deprive the Petitioner 
of any constitutional guarantees, Slack v. White Tower, 
181 F. Supp. 124 (1960).

In the most recent case dealing with efforts of Negroes 
to force the owners of business premises to open their 
establishments to all comers through so-called “sit-in” tac­
tics, our Court of Appeals in Drews v. State, ■—— Md.-----,
167 A. 2d 341 (1961) affirmed Judge W. Albert Menehine’s



5a

Memorandum Opinion

conviction of four persons charged with disorderly conduct 
for refusing to leave Gwynn Oak Amusement Park in Balti­
more County after being ordered to do so. Speaking for 
the Court, Judge Hammond pointed out that the duty im­
posed by the early common law to serve the public without 
discrimination was later confined to exceptional callings 
where an urgent public need required its continuance, such 
as innkeepers and common carriers. Continuing Judge 
Hammond stated that

“ * * * Operators of most enterprises including places 
of amusement, did not and do not have any such com­
mon law obligation, and in the absence of a statute 
forbidding discriminations, can pick and choose their 
patrons for any reason they decide upon, including the 
color of their skin.”

For the reasons stated this Court must find each defen­
dant guilty on the first count of the indictment, and not 
guilty on the second count.

Each defendant is fined $10.00 and costs, the fine is sus­
pended, the costs must be paid.

/ s /  J oseph  R . B yrnes

Judge

Filed March 24,1961



6a

Opinion by Henderson, J.
Filed: January 9,1962

Isr t h e

COURT OF APPEALS OF MARYLAND 
No. 91—September Term, 1961

R obert Mack Bell, et al., 

—v.—

State oe Maryland.

Briine, Circuit Judge,
H enderson,
P rescott,
H orney,
Marbury, Judges.

These appeals are from $10.00 fines imposed, but sus­
pended, after convictions in the Criminal Court of Balti­
more for trespassing on the privately owned premises of 
Hooper’s Restaurant. The appellants entered the premises 
in protest against the restaurant owner’s policy of not serv­
ing negroes and refused to leave when asked to do so. In 
fact, they occupied seats at various tables and refused to 
relinquish them unless and until they were served. The 
manager thereupon summoned the police and swore out 
warrants for the arrest of the “sit-in” demonstrators. They 
elected not to be tried by the magistrate and were subse­
quently indicted and tried.



7a

Opinion by Henderson, J.

The appellants contend that the State may not use its 
judicial process to enforce the racially discriminatory prac­
tices of a private owner, once that owner has opened his 
property to the general public, and that the Maryland 
Criminal Trespass Statute, although constitutional on its 
face, has been unconstitutionally applied. Apparently the 
appellants would concede that the owner could have physi­
cally and forcibly ejected them, but deny that he could 
constitutionally invoke the orderly process of the law to 
accomplish that end.

We find it unnecessary to dwell on these contentions at 
length, because the same arguments were fully considered 
and rejected by this Court in two recent cases, Drews v. 
State, 224 Md. 186, and Griffin do Greene v. State, 225 Md. 
422. We expressly held in the Griffin case, contrary to the 
arguments now advanced, that demonstrators are not with­
in the exception in the Maryland Trespass Statute, Code 
(1957), Art. 27, sec. 577, relating to “a bona fide claim of 
right or ownership”, and that the statutory references to 
“entry upon or crossing over”, cover the case of remaining 
upon land after notice to leave.

We have carefully considered the latest Supreme Court
case on the subject, Garner v. Louisiana,-----U. S. ,
30 L. W. 4070, decided December 11, 1961. There, convic­
tions of “sit-in” demonstrators for disturbing the peace 
were reversed on the ground that the convictions were de­
void of evidentiary support. Chief Justice Warren, for a 
majority of the court, found it unnecessary to consider 
contentions based on broader constitutional grounds. In 
the absence of further light upon the subject, we adhere 
to the views expressed in the Griffin case.

The appellants further contend, however, that the Mary­
land Statute, as applied, denies to them the freedom of



8a

Opinion by Henderson, J.

speech guaranteed under the First and Fourteenth Amend­
ments to the United States Constitution, They argue that 
their action in remaining on the premises amounted, in 
effect, to a verbal or symbolic protest against the dis­
criminatory practice of the proprietor. They rely heavily 
upon Marsh v. Alabama, 326 U. S. 501. In that case a dis­
tributor of religious literature on the sidewalk of a “com­
pany town” was prosecuted and convicted of trespass 
when he declined to leave or desist. The conviction was 
reversed on First Amendment grounds, despite the finding 
of the State court that the sidewalk had never been dedi­
cated to public use. Cf. Tucker v. Texas, 326 U. S. 517, 
involving a village owned by the United States. But it 
would appear that the rule of the Marsh case had not been 
extended to the interiors of privately owned buildings, 
even those of a quasi-public character. See Watchtower 
Bible & T. Soc. v. Metropolitan Life Ins. Co., 79 N. E. 2d 
433 (N. Y.); cert. den. 335 U. S. 886; rehearing den. 335 
U. S. 912; Hall v. Commonwealth, 49 S. E. 2d 369 (Va.); 
appeal dism. 335 U. S. 875; and Breard v. Alexandria, 341 
U. S. 622. On principle, we think the right to speak freely 
and to make public protest does not import a right to invade 
or remain upon the property of private citizens, so long as 
private citizens retain the right to choose their guests or 
customers. We construe the Marsh case, supra, as going 
no further than to say that the public has the same rights of 
discussion on the sidewalks of company towns as it has 
on the sidewalks of municipalities. That is a far cry from 
the alleged right to engage in a “sit-in” demonstration.

Judgments affirmed with costs.



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