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

    IN THE

S U P R E M E  COURT OF T H E  U N I T E D  S TATES

OCTOBER TERM, 1961

WILLIAM L. GRIFFIN, MAEVOUS SAUNDERS, 
MICHAEL PROCTOR, CECIL T. WASHINGTON,
JR., and GWENDOLYN GREENE, Petitioners,

v.
STATE OF MARYLAND,

Respondent.

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

Of Counsel:

J o se ph  L . R atjh , J r .,
J o h n  S ilard ,

1631 K  Street, N. W.,
Washington 6, D. C. 

J o se ph  H . S h a r l it t ,
L e e  M . H y d em a n ,
Claude  B. K a h n ,

1632 K  Street, A.IF., 
Washington 6, D. C.

Attorneys for Petitioners.

T hurgood  M a r sh a ll ,
J ack  G r een berg ,
J am es M . N a brit , III,

10 Columbus Circle,
New York 19, New York.



INDEX
Page

Opinions Below ..........................................................  1
Jurisdiction ................................................................ 2
Question Presented ................................................... 2
Statutes Involved ......................................................  2
Statement ...............................................  2
Reasons for Granting the W rit..................................  7

1. What degree of state participation in private
discrimination constitutes “ state action” for­
bidden by the Fourteenth Amendment?............. 11

2. Is the Fourteenth Amendment transgressed in
the absence of a showing that it has been the 
state’s purpose to enforce racial discrimination, 
when the state’s authority has served to ad­
minister and enforce such discrimination?.........  12

3. To what extent is the resolution of the consti­
tutional issue affected by the consideration that 
the “ property rights” being enforced are those 
of business establishments catering to the gen­
eral public rather than homeowners or others 
seeking personal privacy?..................................  13

4. What would be the impact of a ruling by this
Court that state power may not be invoked to 
assist business establishments in their discrimi­
nation against Negro customers?.......................  14

Conclusion .................................................................  18
Appendix A : Oral Opinion of Trial Court................  19

Opinion of Court of Appeals of Mary­
land ..................................................  22

T able  oe C ases

Avent v. North Carolina, No. 85, October Term,
1961 ........................................................................  7,16

Barrows v. Jackson, 346 U.S. 249............................... 8
Boynton v. Virginia, No. 7, October Term, 1960, 364

U.S. 454 ............ ...................................................... 9,14
Briscoe v. Louisiana, No. 27, October Term, 1961.... 7

-7925-1



INDEXii
Page

Brown v. Board of Education, 344 U.S. 1...................  18
Burton v. Wilmington Parking Authority, 365 U.S.

715 ........................................................ ' ............. 9,11,13
Drews v. Maryland, No. 71, October Term, 1961.......  7
Fitzgerald v. Pan American World Airways, 229 F.2d

499 ..........................................................................  17
Garner v. Louisiana, No. 26, October Term, 1961.... 7
Gomillion v. Lightfoot, 364 U.S. 339...........................  13
Henderson v. United States, 339 U.S. 816................  17
Hoston v. Louisiana, No. 28, October Term, 1961. ... 7
Marsh v. Alabama, 326 U.S. 501..............................8,13,14
Mitchell v. United States, 313 U.S. 81.......................  17
Morgan v. Virginia, 328 U.S. 373............................... 17
Nash v. Air Terminal Services, 85 F.Supp. 545......... 17
Pennsylvania v. Board of Trusts, 353 U.S. 230......... 9,15
Pennsylvania v. Board of Trusts, 357 U.S. 570......... 15
Randolph v. Virginia, No. 248, October Term, 1961 . . 7
Shelley v. Kraemer, 334 U.S. 1 ..................................  7
Valle v. Stengel, 176 F.2d 697......... 11

M iscella n eo u s

Fourteenth Amendment to the Constitution of the
United States, Section 1.........................................

Maryland Code (1957), Article 27, § 577...................
Montgomery County Code (1955), Sec. 2-91..............
N. Y. Times, Aug. 11, 1960, p. 14, col. 5 ....................
N. Y. Times, Oct. 18, 1960, p. 47, col. 5 .......................
Pollitt, Dime Store Demonstrations, 1960 Duke L.J.

315 ..........................................................................
Pollitt, The President’s Powers in Areas of Race

Relations, 39 N.C.L.Rev. 238..................................
Washington Post, March 15, 1961, p. 1, col. 2 .........
28 U.S.C. § 1257(3). ...................................................
42 U.S.C. §§ 1981 and 1982.........................................

4
16
16

3

17
17
2

10



IN THE

S U P R E M E  E DU R T  DF T H E  U N I T E D  S TATES

OCTOBER TERM, 1961

No.

WILLIAM L. GRIFFIN, MARVOUS SAUNDERS, 
MICHAEL PROCTOR, CECIL T, WASHINGTON, 
JR., and GWENDOLYN GREENE, Petitioners,

v.

STATE OF MARYLAND,
Respondent.

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

To the Honorable Chief Justice of the United States and 
the Associate Justices of the Supreme Court of the 
United States:
Petitioners pray that a writ of certiorari issue to review 

the judgment of the Court of Appeals of Maryland entered 
in this case on June 8, 1961.

Opinions Below
The opinions of the Circuit Court for Montgomery 

County and of the Court of Appeals of Maryland have not 
yet been reported. They are printed in Appendix A, infra, 
pp. 19 to 29.

(1)



2

Jurisdiction
The judgment of the Court of Appeals of Maryland was 

entered on June 8, 1961. The jurisdiction of this Court is 
invoked under 28 U.S.C. § 1257(3), petitioners having as­
serted below and urging here denial of rights secured by 
the Fourteenth Amendment to the Constitution.

Question Presented
Whether, consistent with the Fourteenth Amendment, 

the State of Maryland may utilize powers of police en­
forcement, arrest, accusation, prosecution and conviction 
to administer and enforce the racial discrimination of a 
business advertising and catering to the general public.

Statutes Involved
This case involves Section 1 of the Fourteenth Amend­

ment to the Constitution of the United States, and Article 
27, § 577 of the Maryland Code (1957) which provides:

“ Any person . . . who shall enter upon or cross over 
the land, premises or private property of any person 
. . . after having been duly notified by the owner or 
his agent not to do so shall be deemed guilty of a mis­
demeanor . . . provided [however] that nothing in this 
section shall be construed to include within its provi­
sions the entry 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.”

Statement
The instant case presents unique and important aspects 

of the legal issues which have arisen from the attempt of 
Negro citizens to obtain equal treatment with that afforded



3

to whites in such public accommodations as food, transpor­
tation, entertainment and recreation. The sequence of 
events which gave rise to petitioners’ actions culminating 
in their conviction by the State of Maryland, has its origin 
in Greensboro, North Carolina, on February 1, 1960. On 
that day four Negro students at the North Carolina A. & T. 
College, who had grown increasingly impatient with pre­
vailing practices under which Negro students could not 
obtain food and refreshment served at local stores, de­
termined to seek service at a local lunch counter in Greens­
boro. This modest incident marked the beginning of wide­
spread efforts, including those of present petitioners, to 
open service to Negroes in places of public accommodation. 
SeePollitt, Dime Store Demonstrations, 1960 Duke L. J. 315.

Glen Echo Amusement Park, the major amusement facil­
ity serving the District of Columbia and its suburbs, is 
located in Montgomery County, Maryland and has tradi­
tionally been patronized by white customers (Tr. 93-95).1 
On June 30, 1960, a number of persons gathered outside the 
main entrance of the Park to urge that Negro patrons be 
permitted to use the Park’s facilities and to seek service 
for Negro patrons by patient, persistent and peaceable 
efforts to obtain such service (Tr. 110-128). No tickets of 
admission were required for entry into the Park (R.20) 
and petitioners, young Negro students participating in the 
Glen Echo protest, entered the Park through the open main 
gates at about 8:15 p.m. (R. 15). Having been admitted 
to the Park without difficulty, petitioners sought to enjoy 
a merry-go-round ride and took seats on the carousel (R. 
16) for which they had in their possession valid tickets of 
admission (R. 20, Tr. 111).

1 “Tr.” references in this Brief indicate the pagination of the official 
transcript of trial filed as a part of the record in this Court. “R.” refer­
ences indicate pages of the printed record below, nine copies of which 
have been filed with the Clerk of this Court.



4

Petitioners were hopeful that the Park would not refuse 
them the service which it advertised and rendered to the 
general public (see Tr. 114-116, 125-126). Their attempts 
at service were not unreasonable, considering that no tickets 
were required for admission to the Park itself (R. 20), 
that none of the signs around the Park indicated any dis­
crimination against Negro patrons (Tr. I l l) ,  and that in all 
its press, radio, and television advertising in the District 
of Columbia area the management invited “ the public gen­
erally” without distinction of race or color (R. 25-26).

It soon developed, however, that petitioners were not go­
ing to be able to ride the carousel on which they had taken 
their places. Francis J. Collins, employed by the Glen 
Echo management as a “ special policeman” under arrange­
ment with the National Detective Agency (R. 14, 18) and 
deputized as a Special Deputy Sheriff of Montgomery 
County on the request of the Park management (R. 18), 
promptly approached petitioners (R. 16).2 He was dressed 
in the uniform of the National Detective Agency and was 
wearing the Special Deputy Sheriff’s badge representing 
his state authority (R. 17-18). On the orders of and on 
behalf of the management (Tr. 104), Deputy Sheriff Collins 
directed petitioners to leave the Park within five minutes 
because it was “ the policy of the park not to have colored 
people on the rides, or in the park” (R. 16). Petitioners 
declined to obey Collins’ direction, remaining on the carrou­
sel for which they tendered tickets of admission (R. 17, 
20).3 Having unsuccessfully directed petitioners to leave

2 Collins was head of the private police force at the Park among whom 
at least two of the employees were deputized as Special Deputy Sheriffs 
(Tr. 105), pursuant to Montgomery County Code (1955) Sec. 2-91.

3 Friends of the petitioners had purchased these tickets and had given 
them to petitioners (Tr. I l l ,  118-119). There is no suggestion that the 
management placed any restriction upon the transfer of tickets to friends 
and relatives; indeed, it was conceded by an agent of the Park that trans­
fers frequently occurred in his presence (R. 21). No offer to refund the 
purchase price was made to petitioners (R. 20).



5

the premises, under color of his authority as a Special 
Deputy Sheriff of Montgomery County Collins now ar­
rested petitioners (It. 17, 18) for wantonly trespassing- in 
violation of a Maryland statute (Code, Art. 27, Sec. 577) 
making it illegal to “ enter or cross over” the property 
of another “ after having been duly notified by the owner 
or his agent not to do so. ’ ’ There was no suggestion that 
petitioners “ were disorderly in any manner” (see p. 23, 
infra). At the subsequent trial, Deputy Sheriff Collins 
affirmed that he arrested petitioners “because they were 
negroes,” and explained that “ I  arrested them on orders 
of Mr. Woronoff [Park Manager], due to the fact that 
the policy of the park was that they catered just to white 
people . . . ” (R, 19).

At the Montgomery County Police precinct house, where 
petitioners were taken after their arrest (R. 17), Collins 
preferred sworn charges for trespass ag'ainst the peti­
tioners (R. 11, Tr. 41), leading to their trial under the 
Maryland wanton trespass statute in the Circuit Court 
for Montgomery County on Sept, 12, 1960. At the trial, 
Park co-owner Abram Baker candidly described his use 
of Deputy Sheriff Collins to enforce racial discrimination:

‘ ‘ Q. Would you tell the Court what you told Lieutenant 
Collins relating to the racial policies of the Glen 
Echo Park? A. We didn’t allow negroes and in 
his discretion, if anything happened, in any way, 
he was supposed to arrest them, if they went on 
our property.

Q. Did you specify to him what he was supposed 
to arrest them for? A. For trespassing.

Q. You used that word to him? A. Yes; that is 
right.

Q. And you used the word ‘discretion’—what did 
you mean by that? A. To give them a chance 
to walk off; if they w-anted to.



6

Q. Did you instruct Lieutenant Collins to arrest all 
negroes who came on the property, if they did 
not leave? A. Yes.

Q. That was your instructions? A. Yes.
Q. And did you instruct him to arrest them because 

they were negroes? A. Yes” (.R. 24-25).

Petitioners’ constitutional objections to the State’s par­
ticipation in and support of racial discrimination, were 
repeatedly rejected by the trial court (R. 13-14, 17, 27-30, 
32, 33-36). Petitioners were convicted and fined for wanton 
trespass under the Maryland statute (R. 1-5, p. 19, infra). 
The Maryland Court of Appeals affirmed the convictions, 
holding the petitioners ’ refusal to leave the premises upon 
instructions of management agent Collins, to constitute 
unlawfully “ entering or crossing over” the owners’ prop­
erty, within the meaning of Art. 27, Sec. 577. The Court 
dismissed the objections under the Fourteenth Amendment 
and under 42 U.S.C. §§ 1981 and 1982 to State support of 
racial discrimination by a public commercial enterprise, 
finding the case to be “ one step removed from State en­
forcement of a policy of segregation” (infra, pp. 27-28).

The question thus presented is whether the ruling below 
can stand, consistent with the equal protection and due 
process guarantees of the Fourteenth Amendment, in cir­
cumstances where the State’s direction to leave, the arrest, 
the accusation, the prosecution and the criminal conviction 
supported and enforced discrimination against peaceable 
Negro patrons by a commercial enterprise advertising and 
catering to the general public.



7

Reasons for Granting the Writ
This Case Presents for Review a Compelling Record of 

State Participation In and Support to “Private” Racial 
Discrimination and Provides Important Illumination on a 
Constitutional Issue Presently Pending before the Court
At its present term, this Court will review the use of a 

Louisiana breach of the peace statute in a manner which 
provided the support of the State to the racially discrimi­
natory practices of businesses catering to the public. See 
Nos. 26, 27 and 28, Garner, Briscoe and Boston v. Louisiana. 
There are also pending applications for review from Vir­
ginia, North Carolina and Maryland involving convictions 
for “ trespass” and “ disorderly conduct” of Negroes 
seeking food, recreation and similar public services at 
business establishments discriminating against Negro cus­
tomers. See No. 248, Randolph v. Virginia; No. 71, Drews 
v. Maryland; No. 85, Avent v. North Carolina, This Court’s 
review is especially warranted in the instant case, for it 
presents a unique degree of State involvement in and sup­
port to racial discrimination against orderly Negro patrons 
by the largest amusement facility catering to the public 
in the District of Columbia area. In addition, concurrent 
review of this proceeding will provide important illumina­
tion upon fundamental issues presented in the Louisiana 
cases and the pending applications for review from Vir­
ginia, North Carolina and Maryland.

The premise of the challenge against the criminal pro­
ceedings involved in the pending cases is that such mani­
festations of state power in support of the racially dis­
criminatory practices of enterprises serving the public, 
constitute “ state action” forbidden by the Fourteenth 
Amendment. What the states have done in all these 
cases falls well within the area of impermissible state 
action set forth in this Court’s rulings in Shelley v.



8

Kraemer, 334 U.8. 1, Barroivs v. Jackson, 346 U.S. 249, 
and Mar,sh v. Alabama, 326 U.S. 501. Indeed, in the instant 
case there is an even closer interplay between private 
discrimination and its enforcement by various powers of 
the State than existed in Shelley, Barrows and Marsh, 
For here, not only the prosecutory and judicial power of 
the State have been employed to enforce discrimination, 
but the State’s police authority was handed to the Glen 
Echo management on a formalized basis for the con­
tinuing administration and enforcement of its discrimi­
natory policy. Deputy Sheriff Collins, not upon the re­
quest but upon the orders of the private management 
which employed him, and wearing the badge of his public 
office, informed and instructed petitioners that because 
they were Negroes they would have to leave the premises. 
It was Collins and his associates who were thus adminis­
tering the Park’s policy of racial discrimination on a day 
to day basis and Collins’ direction to the petitioners to 
leave the premises consummated the unconstitutional in­
volvement of the State in the “ private” practice of dis­
crimination.4 Then, to add injury to insult, still following 
the orders of his employers and in his capacity as an 
officer of the State, Collins arrested petitioners and filed 
a warrant under oath against them, bringing into play the 
prosecutorial machinery of the State. The significance 
of the case at bar is thus found in the fact, directly con­
trary to the ruling below that State action here was 
“ one step removed from State enforcement of a policy 
of segregation,” that there was absolutely no severance 
at any time between public and private authority at Glen 
Echo Park. What this case adds to those -presently before

4 Indeed, Deputy Sheriff Collins “made the crime” of which petitioners 
were convicted. Collins’ direction to leave was a necessary prerequisite 
of the trespass charge, for petitioners could not have been so charged 
(and were admittedly lawfully on the premises) until Collins, a state 
officer, directed them to leave.



9

the Court is that the P art’s policy of racial discrimination 
was at all times being administered and enforced by the 
State through Deputy Sheriff Collins and his colleagues. 
Here the State of Maryland was not merely enforcing 
the Company’s racial discrimination through prosecution 
in the courts, but was itself administering that discrimina­
tion on the premises of the largest public amusement fa­
cility in the District of Columbia area.. Cf. Pennsylvania 
v. Board of Trusts, 353 U.S. 230.

As this Court recently phrased the presently applicable 
principle in Burton v. Wilmington Parting Authority, 
365 U.S. 715, 722, the equal protection clause is invoked 
when “to some significant, extent the state,in any of its mani­
festations has been found to become involved” in private 
conduct abridging individual rights. The applicability of 
this rule when the state lends its support to discrimination, 
through its police powers of direction to leave premises, 
arrest, accusation, prosecution and conviction, certainly 
presents an important question for review; this Court 
characterized the analogous issue presented in Shelley v. 
Kraemer as involving “ basic constitutional issues of ob­
vious importance” (334 U. S. at p. 4).

Significantly, the United States as amicus curiae in 
Boynton v. Virginia (No. 7, October Term, 1960) recently 
urged reversal of a Virginia trespass conviction upon the 
ground being urged in the pending case, that the Four­
teenth Amendment precludes a state’s prosecutorial en­
forcement of racial discrimination by a business catering 
to the public,5 In the Government’s Brief before this

5 This Court decided the Boynton case (364 U.S. 454) on the independ­
ent interstate commerce point also urged by the Government. But, for 
present purposes, it should be emphasized that in the Government’s view, 
invocation of Virginia’s criminal trespass authority to support the racially 
discriminatory policy of the private restaurant there involved, constituted 
a complete and independent ground for reversal under the Fourteenth 
Amendment.



10

Court (at p. 17), the Solicitor General emphasized that 
‘ ‘ The application of a general, nondiscriminatory, and oth­
erwise valid law to effectuate a racially discriminatory 
policy of a private agency, and the enforcement of such 
a discriminatory policy by state governmental organs, has 
been held repeatedly to be a denial by state action of 
rights secured by the Fourteenth Amendment.” Pertinent 
judicial rulings, the Brief for the United States suggested, 
demonstrate that “ where the state enforces or supports 
racial discrimination in a place open for the use of the 
general public . . .  it infringes Fourteenth Amendment 
rights notwithstanding the private origin of the discrim­
inatory conduct” (at p. 20). The Solicitor General con­
cluded that the conviction for “ trespass” of a Negro seek­
ing service at a Richmond, Virginia, restaurant consti­
tuted unlawful state support to private discrimination, 
and that

“ When a state abets or sanctions discrimination 
against a colored citizen who seeks to patronize a 
business establishment open to the general public, the 
colored citizen is thereby denied the right ‘to make 
and enforce contracts’ and ‘to purchase personal prop­
erty’ guaranteed by 42 U.S.C. 1981 and 1982 against 
deprivation on racial grounds” (at p. 28).

Clearly, the pending state prosecutions for “ trespass” , 
“ breach of peace” and “ disorderly conduct”, enforcing 
the racial practices of businesses catering to the general 
public, offend the mandate of the Fourteenth Amendment 
under the authoritative rulings of this Court and present 
an important issue for review.6 Yet, the manifest appli­
cability of this Court’s rulings against state support to

6 The State action involved in the instant case not only offends the 
Constitution but equally transgresses 42 U.S.C. §§ 1981 and 1982. These 
statutory prohibitions also provide significant and contemporary illumina­
tion on the intended scope of the Fourteenth Amendment itself.



11

private discrimination does not obscure the fact that a 
number of unresolved questions inhere in the adjudica­
tion of the pending constitutional issue. We recognize 
that the Court will desire carefully to examine certain re­
curring questions involved in state support to private 
practices of racial discrimination, and we respectfully sug­
gest that the instant case particularly lends itself to the 
examination of four of these questions, to which we now 
turn : 7

1. What degree of state participation in private dis­
crimination constitutes “state action” forbidden by the 
Fourteenth Amendment?

In its recent Wilmington Parking Authority decision, 
365 U. 'S. 715, 722, this Court stated that the Fourteenth 
Amendment is violated when state support to private dis­
crimination has been given “to some significant extent.” 
This Court will certainly be called upon in the pending 
cases to determine whether a “ significant extent” of state 
support to discrimination inheres in the arrest, accusa­
tion, prosecution and conviction (taken separately or to­
gether), of Negro customers peaceably seeking to obtain 
services provided by business establishments catering to 
the general public.

We submit that state prosecution and conviction which 
enforces the racial discrimination of a business proprietor 
constitutes significant state aid to discrimination in viola­
tion of the Fourteenth Amendment.8 But in the instant

7 A fifth question for this Court’s consideration may be whether in this 
case the highest court of Maryland has construed the Maryland enact­
ment “as authorizing discriminatory classifications based exclusively on 
color.” See concurring opinion of Mr. Justice Stewart in Burton v. 
Wilmington Parking Authority, 365 U.S. 715. While the Maryland stat­
ute is neutral on its face, as construed below it requires the conviction 
of one who, “after having been duly notified by the owner or agent not 
to do so” because he is a Negro, enters or crosses over his property.

8 This, indeed, is the holding of the Third Circuit, one directly con­
trary to the ruling below, under similar factual circumstances. See 
Valle v. Stengel, 176 F. 2d 697.



12

case we have far more state action than prosecution and 
conviction. Here the Deputy Sheriffs were the omnipres­
ent administrators and enforcers of the owners’ racial 
discrimination; here on orders of the private management 
the officer of the State, wearing* his badge as a Deputy 
Sheriff, demanded that petitioners leave the premises be­
cause they were Negroes, thereafter arrested them “ be­
cause they were Negroes” , and filed sworn complaints 
which initiated the State prosecutions. The entire sequence 
of events demonstrates Maryland’s inextricable and con­
tinuous involvement in the administration and enforcement 
of the racially discriminatory policy of Glen Echo Park.

2. Is the Fourteenth Amendment transgressed in the ab­
sence of a showing that it has been the state’s purpose to 
enforce racial discrimination, ivhen the state’s authority 
has served to administer and enforce such discrimination?

The court below ruled that the arrest and conviction of 
petitioners “ as a result of the enforcement by the operator 
of the park of its lawful policy of segregation”, could not 
“ fairly be said to be” the action of the State. In so do­
ing, the court below apparently accepted a major conten­
tion of the State, that prosecution and conviction is es­
sentially a neutral manifestation of Maryland’s general 
interest in enforcing “ property rights,” devoid of any 
racial connotation. This contention does not question that 
the manifestation of the State’s power has the effect of 
supporting the practice of racial discrimination; rather, 
it suggests that, unless the State’s purpose is to give sup­
port. to discrimination, the Fourteenth Amendment is not 
violated.

But discriminatory “ motivation” by the state can hardly 
be the sine qua non of the Fourteenth Amendment’s ap­
plicability when as a matter of fact the exercise of the



13

state’s power supports and abets the practice of racial 
discrimination. Nowhere in the restrictive covenant de­
cisions or in the recent formulation in Wilmington Park­
ing Authority is a motive requirement suggested; recently, 
in Gomillion v. Lightfoot, 364 U.S. 339, this Court re­
jected a similarly confining motivational interpretation 
of the Fourteenth Amendment’s equality guarantee. In­
deed, the very contention that the State is “ neutrally” 
enforcing property rights rather than intending to assist 
discrimination, was rejected in Shelley v. Kraemer, this 
Court emphasizing that “ the power of the State to create 
and enforce property interests must be exercised within 
the boundaries defined by the Fourteenth Amendment”
(p. 22).

In any event, in the instant case it is clear that not only 
the effect but the purpose of the State’s action has been 
to give support to d en  Echo’s racial policy. The State 
surrendered its police authority to the use and control 
of a private corporation for its enforcement of racial dis­
crimination. Armed with police authority, Deputy Sheriff 
Collins obeyed the orders of his employers in seeking to 
expel and thereafter in arresting and charging petitioners 
for trespass. Collins, acting under color of law, had as 
his sole purpose the administration of discrimination 
against Negroes. Having put its authority under the 
orders and control of the Park for its enforcement of racial 
discrimination, the State cannot now be heard to say that 
the owners ’ purpose was not its purpose as well.

3. To ivhat extent is the resolution of the constitutional 
issue affected by the consideration that the “property 
rights” being enforced are those of business establishments 
catering to the general public rather than homeowners or 
others seeking personal privacy f

In Marsh v. Alabama, 326 TT.S. 501, this Court ruled 
that the exertion of state criminal authority on behalf of



14

a proprietor’s restriction on the liberties of a member of 
the general public on his premises was precluded by the 
Fourteenth Amendment. The Court pointed out (at 505- 
506) : “ The State urges in effect that the corporation’s right 
to control the inhabitants of 'Chickasaw is coextensive with 
the right of a homeowner to regulate the conduct of his 
guests. We cannot accept that contention. Ownership does 
not always mean absolute dominion. The more an owner, 
for Ms advantage, opens up Ms property for use by the 
public in general, the more do Ms rights become circum­
scribed by the statutory and constitutional rights of those 
who use it.” (Emphasis supplied). The Marsh case thus 
highlights the significance attaching to the fact that in the 
pending case racial discrimination is being enforced by the 
State on behalf of a public establishment rather than on be­
half of individuals, homeowners or associations seeking pro­
tection of rights of personal property or privacy. As the 
Government’s brief affirmed with respect to a similar tres­
pass prosecution in last term’s Boynton case (at p. 20, 22), 
the Fourteenth Amendment is infringed where the state 
“enforces or supports racial discrimination in a place open 
for the use of the general public,” for the issue

“ is not whether the right, for example, of a home- 
owner to choose his guests should prevail over peti­
tioner’s constitutional right to be free from the state 
enforcement of a policy of racial discrimination, but 
rather whether the interest of a proprietor who has 
opened up his business property for use by the gen­
eral public—in particular, by passengers travelling- 
in interstate commerce on a federally-regulated car­
rier—should so prevail.”

Glen Echo Amusement Park is a licensed business enter­
prise owned and operated by corporations chartered by 
the State of Maryland. It caters to the general public as



15

the major amusement park in the District of Columbia area 
and none of its numerous advertisements through various 
means of public communication reflected any discrimina­
tion against Negro members of the public. No tickets of 
admission were required for entrance to the Park through 
its open gates, and no signs around the Park proclaimed 
any restriction upon the custom of Negro patrons. These 
factors underline the critical consideration in the pending 
case that the State’s power is being invoked to enforce 
not personal privacy, but rather to assist a business cater­
ing to the general public in its refusal of service to Negro 
members of the public. We suggest that in the disposi­
tion of the pending issue, a vital constitutional difference 
inheres in the distinction between state enforcement of 
racial discrimination at places of public accommodation, 
and state protection (where there has been no dedication 
of the property to the general public) of individual, resi­
dential or associational privacy.9

4. What would be the impact of a ruling by this Court 
that state power may not be invoked to assist business 
establishments in their discrimination against Negro cus­
tomers?

In its public school desegregation decisions this Court 
evidenced its concern with the impact of a constitutional 
ruling requiring widespread changes in local customs and

9 It cannot be too strongly emphasized that there is involved here, not 
the right of an individual to determine the people he will receive and 
entertain in his home or private estate, or to select the beneficiaries of 
his private benevolence. Compare Pennsylvania v. Board of Trusts, 357 
U.S. 570, with Pennsylvania v. Board of Trusts, 353 U.S. 2'30. The right 
of the individual to the aid of the state in enforcing his own discrimina­
tory ideas outside his strictly private or personal domain is another mat­
ter. And it is here that the Fourteenth Amendment forbids the state to 
intervene to support racially discriminatory practices. Private corpora­
tions cannot invite the general public to patronize their businesses and then 
call upon the state to exclude members of the public solely because of 
their race.



16

practices. In the pending cases this Court will doubtless 
consider the suggestion that, if denied state enforcement 
of racial practices, proprietors will widely resort to forc­
ible self-help.10 On this score, we submit that the public 
record demonstrates the unlikelihood of any substantial 
discord or danger attendant upon the removal of state 
support to the discriminatory practices of enterprises 
serving the public. It is not the habit of establishments 
seeking the trade of the public to engage in the unpleasant 
work of self-help ousters of racial minorities; rather they 
seek the police to make the ousters for them. The recent 
abandonment of racial practices by business communities 
in many Southern localities demonstrates that these prac­
tices are not the product of public attitudes or business 
necessity but only the vestigial remains of former condi­
tions, succored by the willingness of public authorities to 
enforce the written and unwritten law of segregation.

Prior to February, 1960, lunch counters throughout the 
South denied normal service to Negroes. Six months later, 
lunch counters in 69 cities had ended their discriminatory 
practices (N. Y. Times, Aug. 11, 1960, p. 14, col. 5); by 
October the number of desegregated municipalities had 
mounted to more than one hundred (N. Y. Times, Oct. 
18, 1960, p. 47, col. 5) and has since continued to increase 
without apparent incident.

There is more evidence that removal of legal sanctions 
supporting segregation in public places effectively obviates

10 As the Supreme Court of .North Carolina put the suggestion in Avent 
v. North Carolina (petition pending, No. 85 this Term), if an owner 
cannot bar Negroes “by judicial process as here, because it is State action, 
then he has no other alternative but to eject them with a gentle hand if 
he can, with a strong hand if he must.” This contention is not, of course, 
legally relevant to the constitutional validity of State action in support 
of discrimination. What we suggest in the text here is that the conten­
tion is not only legally irrelevant but factually tenuous. Indeed, in Dur­
ham, North Carolina, where Avent arose, the dime stores have since quietly 
abandoned discrimination.



17

further conflict or difficulty. When state segregation laws 
were struck down, public libraries in Danville, Virginia 
and Greenville, South Carolina were closed to avoid de­
segregation; they reopened a short time later, first on a 
“ stand up only” basis and then on a normal basis, all 
without incident. Then, too, when public swimming pools 
were judicially ordered to desegregate, San Antonio, 
Corpus Christ!, Austin, and others integrated without 
disorder or difficulty. See Poliitt, The President’s Powers 
in Areas of Race Relations, 39 N.C.L. Rev. 238, 275. Sim­
ilarly, Miami Beach, Houston, Dallas and others inte­
grated their public golf courses without incident. Ibid. 
Again, while the in terrorem argument against desegre­
gation was suggested in cases involving pullman cars 
(Mitchell v. United States, 313 U.S. 81), dining cars (Hen­
derson v. United States, 339 U.S. 816), buses (Morgan v. 
Virginia, 328 U.S. 373), and air travel and terminal service 
(Fitzgerald v. Pan American World Airways, 229 P. 2d 
499; Nash v. Air Terminal Services, 85 F. Supp. 545), 
experience has disproved the predictions of violence.

In the instant ease no possible difficulty could arise from 
this Court’s invalidation of State support for segregation 
at Glen Echo Amusement Park, the Park having aban­
doned its prior racial practices in March of this year (see 
Washington Post, March 15, 1961, p. 1, col. 2). Unques­
tionably, an element in the management’s abandonment of 
discrimination was petitioners’ challenge to the State’s 
enforcement of that discrimination. The national evidence 
equally demonstrates that state enforcement of segregation 
constitutes the last remaining cornerstone for racial prac­
tices at places of public service and accommodation.



18

Conclusion
The instant case, involving prosecutions for trespass, 

presents in sharp focus constitutional questions related to 
those the Court has agreed to review in the Louisiana 
cases, arising from prosecutions for breach of the peace. 
In a like setting, this Court has indicated the desirability 
of its concurrent review over cases presenting related 
aspects of a constitutional question of national importance. 
Brotvn v. Board of Education, 344 U.S. 1, 3. It is sub­
mitted that the grant of certiorari in this case is justified 
both by the compelling record of Maryland’s administra­
tion of and support to the “ private” practice of racial 
discrimination, and by the illumination this record fur­
nishes upon material aspects of a pending constitutional 
issue of nationwide importance.

Respectfully submitted,
J o se ph  L . R a u h , J r .,
J o h n  S ilard ,

1631 K  Street, N. W.,
Washington 6, D. C. 

J o se ph  H . S h a r l it t ,
L ee  M. H y d em a n ,
Claude  B . K a h n ,

1632 K  Street, N.W., 
Washington 6, D. C.

„ ,  _ 7 Attorneys for Petitioners.Of Counsel:
T hurgood  M a r sh a ll ,
J ack  G reen b er g ,
J am es M. N abrit , I I I ,

10 Columbus Circle,
New York 19, New York.



19

APPENDIX A

Oral Opinion of Trial Court
It is very unfortunate that a case of this nature comes 

before the criminal court of our State and County. The 
nature of the case, basically, is very simple. The charge 
is simple trespass. Simple trespass is defined under Sec­
tion 577 of Article 27 of the Annotated Laws of Maryland, 
which states that “ 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.” Trespass has been 
defined as an unlawful act, committed without violence, 
actual or implied, causing injury to the person, property 
or relative rights of another. This statute also has a 
provision in it which says that it is the intention of the 
Legislature as follows: “ It is the intention of this sec­
tion only to prohibit any wanton trespass upon the pri­
vate land of others.” Wanton has been defined in our 
legal dictionaries as reckless, heedless, malicious; char­
acterized by extreme recklessness, foolhardiness and reck­
less disregard for the rights or safety of others, or of 
other consequences.

There have been many trespass cases in Maryland. As a 
matter of fact, there is one case now pending before the 
Court of Appeals of Maryland where the racial question has 
been injected into a disorderly conduct case, and that is 
the case of “ State of Maryland versus Dale H. Drews” , 
decided some few months ago. In that case, Judge 
Menchine filed a lengthy written opinion, in which he 
touched upon the rights of a negro to go on private 
property, whether it is a semi-public or actually a public 
business, and is that case Judge Menchine said as follows:

“ The rights of an owner of property arbitrarily to re­
strict its use to invitees of his selection is the established 
law of Maryland.” This Court agrees with that opinion, 
and unless that case is reversed by the Court of Appeals 
of Maryland, at its session this Fall, that will continue to 
be the law of Maryland.



20

That statement by Judge Menchine is based upon author­
ities of this State, and not too far back, in the case of 
Greenfeld versus the Maryland Jockey Club, 190 Md. 96, 
in which the Court of Appeals of this State said: “ The 
rule that, except in cases of common carriers, inn-keepers 
and similar public callings, one may choose his customers, 
is not archaic. ’ ’

If the Court of Appeals changes its opinion in the 190 
Maryland case, then we will have new law in this State 
on the question of the right of a negro to go on private 
property after he is told not to do so, or after being on it, 
he is told to get off.

In this Country, as well as many, many counties in the 
United States, we have accepted the decision of integration 
that has been promulgated by the Supreme Court in the 
school cases, and without and provocation or disputes of any 
consequence. There is no reason for this Court to change 
that method of accepting integration, but when you are 
confronted with a question of whether or not that policy 
can be extended to private property, we are reaching 
into the fundamental principles of the foundation of this 
country.

The Constitution of the United States has many provi­
sions, and one of its most important provisions is that of 
due process of law. Due process of law applies to the right 
of ownership of property—that you cannot take that prop­
erty, or you cannot do anything to interfere with that man’s 
use of his property, without due process of law.

Now, clearly, in this case, which is really a simple case; 
it is a simple case of a group of negroes, forty in all, 
getting together in the City of Washington, and coming 
into Maryland, with the express intent, by the testimony of 
one of the defense witnesses, that they were going to make 
a private corporation change its policy of segregation. In 
other words, they were going to take the law in their own 
hands. Why they didn’t file a civil suit and test out the 
right of the Glen Echo Park Amusement Company to fol­
low that policy is very difficult for this Court to under­
stand, yet they chose to expose themselves to possible harm; 
to possible riots and to a breach of the peace. To be ex­



21

posed to the possibility of a riot in a place of business, 
merely because these defendants want to impress upon that 
business their right to use it, regardless of the policy of 
the corporation, should not he tolerated by the Courts. 
Unless the law of this State is changed, by the Court of 
Appeals of Maryland, this Court wili follow the law that 
has already been adopted by it, that a man’s property is 
his castle, whether it be offered to the public generally, or 
only to those he desires to serve.

There have been times in the past, not too many years 
back, when an incident of this kind would have caused a 
great deal of trouble. It could have caused race riots, and 
could have caused bloodshed, but now the Supreme Court, 
in the school case in 1954, has decided that public schools 
must be integrated, and the people of this County have ac­
cepted that decision. They have not quibbled about i t ; They 
have gone along with it without incident. We are one of 
the leading counties in the United States in accepting that 
decision. If the Court of Appeals of Maryland decides 
that a negro has the same right to use private property as 
was decided in the school cases, as to State or Government 
property, or if the Supreme Court of the United States so 
decides, you will find that the places of business in this 
County will accept that decision, in the same manner, and 
in the same way that public authorities and the people 
of the County did in the School Board decision, but there 
is nothing before this Court at this time except a simple 
case of criminal trespass. The evidence shows the defend­
ants have trespassed upon this Corporation’s property, 
not by being told not to come on it, but after being on the 
property they were told to get off.

Now it would be a ridiculous thing for this Court to 
say that when an individual comes on private property, and 
after being on it, either sitting on it or standing on it, and 
the owner comes up and says, “ Get off my property”, and 
then the party says “ You didn’t tell me to get off the prop­
erty before I came on it, and, therefore, you cannot tell 
me to get off now” he is not guilty of trespass because he 
was not told to stay off of the property. It is a wanton 
trespass when he refuses to get off the property, after be­
ing told to get off.



22

One of the definitions of wanton is “ foolhardy” and this 
surely was a foolhardy expedition; there is no question 
about that. When forty people get together and come 
out there, as they did, serious trouble could start. It is a 
simple case of trespass. It is not a breach of the peace, 
or a case of rioting, but it could very easily have been, 
and we can thank the Lord that nothing did take place 
of such a serious nature.

It is not up to the Court to tell the Glen Echo Amuse­
ment Company what policies they should follow. If they 
violate the law, and are found guilty, this Court will sen­
tence them.

It is most unfortunate that this matter comes before the 
Court in a criminal proceeding. It should have been 
brought in an orderly fashion, like the School Board case 
was brought, to find out whether or not, civilly, the Glen 
Echo Park Amusement Company would follow a policy of 
segregation, and then you will get a decision based on the 
rights of the property owner, as well as the rights of these 
defendants. So, the Court is very sorry that this case has 
been brought here in our courts.

It is my opinion that the law of trespass has been vio­
lated, and the Court finds all five defendants guilty as 
charged.

Opinion of Court of Appeals of Maryland
This is a consolidated appeal from ten judgments and 

sentences to pay fines of one hundred dollars each, entered 
by the Circuit Court for Montgomery County after sepa­
rate trials, each involving five defendants, on warrants 
issued for wanton trespass upon private property in viola­
tion of Code (1957), Art. 27, § 577.

The first group of defendants, William L. Griffin, Mar- 
vous Saunders, Michael Proctor, Cecil T. Washington, Jr., 
and Gwendolyn Greene (hereinafter called “ the Griffin 
appellants” or “ the Griffins” ), all of whom are Negroes, 
were arrested and charged with criminal trespass on 
June 30, 1960, on property owned by Eekab, Inc., and 
operated by Kebar, Inc., as the Glen Echo Amusement 
Park (Glen Echo or park). The second group of defend­



ants, Cornelia A. Greene, Helene D. Wilson, Martin A. 
Schain, Ronyl J. Stewart and Janet A. Lewis (hereinafter 
called “ the Greene appellants” or “ the Greenes” ), two 
of whom are Caucasians, were arrested on July 2, 1960, 
also in Glen Echo, and were also charged with criminal 
trespass.

The Griffins were a part of a group of thirty-five to 
forty young colored students who gathered at the entrance 
to Glen Echo to protest “ the segregation policy that we 
thought might exist out there.” The students were 
equipped with signs indicating their disapproval of the 
admission policy of the park operator, and a picket line 
was formed to further implement the protest. After about 
an hour of picketing, the five Griffins left the larger group, 
entered the park and crossed over it to the carrousel. 
These appellants had tickets previously purchased for 
them by a white person) which the park attendant refused 
to honor. At the time of this incident, Rekab and Kebar 
had a “ protection” contract with the National Detective 
Agency (agency), one of whose employees, Lt. Francis J. 
Collins (park officer), who is also a special deputy sheriff 
for Montgomery County, told the Griffins that they were 
not welcome in the park and asked them to leave. They 
refused, and after an interval during which the park 
officer conferred with Leonard Woronoff (park manager), 
the appellants were advised by the park officer that they 
Were under arrest. They were taken to an office on the 
park grounds and then to Bethesda, where the trespass 
warrants were sworn out. At the time the arrests were 
made, the park officer had on the uniform of the agency, 
and he testified that he arrested the appellants under the 
established policy of Kebar of not allowing Negroes in 
the park. There was no testimony to indicate that any 
of the Griffins were disorderly in any manner, and it seems 
to be conceded that the park officer gave them ample time 
to heed the warning to leave the park had they wanted 
to do so.

The Greene appellants entered the park three days after 
the first incident and crossed over it and into a restaurant 
operated by the B & B Industrial Catering Service, Inc., 
under an agreement between Kebar and B & B, These



24

appellants asked for service at the counter, were refused, 
and were advised by the park officer that they were not 
welcome and were ordered to leave. They refused to 
comply by turning their backs on him and he placed them 
under arrest for trespassing. Abram Baker (president 
of both Rekab and Kebar) testified that it was the policy 
of the park owner and operator to exclude Negroes and 
that the park officer had been instructed to ask Negro 
customers to leave, and that if they did not, the officer 
had orders to arrest them. There was no evidence to 
show that the operator of the restaurant had told the 
Greenes they were not welcome or to leave; nor was there 
any evidence that the park officer was an agent of the 
restaurant operator. And while a prior formal agreement 
covering the 1957 and 1958 seasons had provided that the 
restaurant operator was subject to and should comply 
with the rules and regulations concerning the persons to 
be admitted to the park and that Kebar had reserved the 
right to enforce them, the letter confirming the agreement 
for the 1959 and 1960 seasons fixed the rentals for that 
period and alluded to other matters, but made no reference 
Whatsoever, either directly or indirectly, to the prior formal 
agreement—though there was testimony, admitted over 
objection, to the effect that the letter was intended as a 
renewal of the prior lease—and was silent as to a reser­
vation by Kebar of the rigid to police the restaurant 
premises during the 1959 and 1960 seasons.

On this set of facts, both groups of appellants make 
the same contentions on this appeal: (i) that the require­
ments for conviction under Art. 27, § 577, were not met; 
and (ii) that the arrest and conviction of the appellants 
constituted an exercise of the power of the State of Mary­
land in enforcing a policy of racial segregation in violation 
of the Fourteenth Amendment to the Constitution of the 
United States.

1 The document was called an “agreement” ; the operator of the restau­
rant was referred to therein as a “concessionaire” and was described in the 
agreement as a “licensee” and not a “lessee” ; yet the agreement called for 
the payment of rent (payable bi-annually) as well as for a portion of the 
gross receipts and a part of the county licensing fees and certain other 
items of expense.



25

Trespass to private property is not a crime at common 
law unless it is accompanied by, or tends to create, a 
breach of the peace. See Krauss v. State, 216 Md. 369, 
140 A. 2d 653 (1958), and the authorities therein cited. 
And it was not until the enactment of § 21A of Art. 27 
(as a part of the Code of 1888) by Chapter 66 of the 
Acts of 1900 that a “ wilful trespass” (see House Journal 
for 1900, p. 322) upon private property was made a mis­
demeanor. That statute, which has remained unchanged 
in phraseology since it was originally enacted, is now 
§ 577 of Art. 27 (in the Code of 1957), entitled “ wanton 
trespass upon private land,” and reads in pertinent part:

“ Any person * * # who shall enter upon or cross 
over the land, premises or private property of any 
person * * * after having been duly notified by the 
owner or his agent not to do so shall be deemed guilty 
of a misdemeanor * * *; provided [however] that 
nothing in this section shall be construed to include 
* * * the entry or crossing* over any land when such 
entry or crossing* is done under a bona fide claim of 
right or ownership * * *, it being the intention of this 
section only to prohibit any wanton trespass upon the 
private land of others.”

The Case Against the Griffin Appellants
(i)

The claim that the requirements for conviction were not 
met is threefold: (a) that due notice not to enter upon 
or cross over the land in question was not given to the 
appellants by the owner or its agent; (b) that the action 
of the appellants in doing what they did was not wanton 
within the meaning of the statute; and (c) that what the 
appellants did was done under a bona fide claim of right.

There was due notice so far as the Griffins were con­
cerned. Since there was evidence that these appellants had 
gathered at the entrance of Glen Echo to protest the segre­
gation policy they thought existed there, it would not be un­
reasonable to infer that they had received actual notice not 
to trespass on the park premises even though it had not 
been given by the operator of the park or its agent. But,



26

even if we assume that the Griffins had not previously had 
the notice contemplated by the statute which was required 
to make their entry and crossing unlawful, the record is 
clear that after they had seated themselves on the car­
rousel, these appellants were not only told they were un­
welcome, but were then and there clearly notified by the 
agnt of the operator of the park to leave and deliberately 
chose to stay. That notice was due notice to these ap­
pellants to depart from the park premises forthwith, and 
their refusal to do so when requested constituted an un­
lawful trespass under the statute. Having been duly noti­
fied to leave, these appellants had no right to remain on 
the premises and their refusal to withdraw was a clear 
violation of the statute under the circumstances even though 
the original entry and crossing over the premises had not 
been unlawful. State v. Fox, 118 S.E.2d 58 (N.C. 1961). 
Gf. Commonwealth v. Richardson, 48 N.E.2d 678 (Mass. 
1943). Words such as “ enter upon” or “ cross over” as 
used in § 577, supra, have been held to be synonymous with 
the word “ trespass.” See State v. Avent, 118 S.E.2d 47 
(N.C. 1961).

The trespass was wanton within the meaning of the stat­
ute. Since the evidence supports a reasonable inference 
that the Griffins entered the park premises and crossed 
over it well knowing that they were violating the property 
rights of another, their conduct in so doing was clearly 
wanton. Although there are almost as many legal defini­
tions of the word “ wanton” as there are appellate courts, 
we think the Maryland definition, which is in line with the 
general definition of the wTord in other jurisdictions, is as 
good as any. In Dennis v. Baltimore Transit Co., 189 Md. 
610, 56 A.2d 813 (1948), as well as in Baltimore Transit 
Co. v. Faulkner, 179 Md. 598, 20 A.2d 485 (1941), it was 
said that the word “ wanton” means “ characterized by 
extreme recklessness and utter disregard for the rights of 
others.” We see no reason why the refusal of these ap­
pellants to leave the premises after having been requested 
to do so was not wanton in that their conduct was in “ utter 
disregard of the rights of others.” Even though their 
remaining may have been no more than an aggravating



27

incident, it was nevertheless wanton within the meaning of 
this criminal trespass statute. See Ex Parte Birmingham 
Realty Co., 63 So. 67 (Ala. 1913).

Since it was admitted that the carrousel tickets were 
obtained surreptitiously in an attempt to “ integrate” the 
amusement park, we think the claim that these appellants 
had taken seats on the carrousel under a bona fide claim 
of right is without merit. While the statute specifically 
excludes the “ entry upon or crossing over” privately owned 
property by a person having a license or permission to do 
so, these appellants do not come within the statutory ex­
ception. In a case such as this where the operator of the 
amusement park—who had a right to contract only with 
those persons it chose to deal with—had not, knowingly 
sold carrousel tickets to these appellants, it is apparent 
that they had no bona fide claim of right to a ride thereon, 
and, absent a valid right, the refusal to accept the tickets 
was not a violation of any legal right of these appellants.

(ii)
We come now to the consideration of the second conten­

tion of the Griffin appellants that their arrest, and convic­
tion constituted an unconstitutional exercise of state power 
to enforce racial segregation. We do not agree. It is true, 
of course, that the park officer—in addition to being an 
employee of the detective agency then under contract to 
protect and enforce, among other things, the lawful racial 
segregation policy of the operator of the amusement park— 
was also a special deputy sheriff, but that dual capacity 
did not alter his status as an agent or employee of the 
operator of the park. As a special deputy sheriff, though 
he was appointed by the county sheriff on the application 
of the operator of the park “ for duty in connection with 
the property” of such operator, he was paid wholly by the 
person on whose account the appointment was made and 
his power and authority as a special deputy was limited 
to the area of the amusement park. See Montgomery 
County Code (1955), § 2-91. As we see it, our decision in 
Brews v. State, 224 Md. 186, 167 A.2d 341 (1961), is con­
trolling here. The appellants in that case—in the course



of participating in a protest against the racial segrega­
tion policy of the owner of an amusement park—were ar­
rested for disorderly conducted committed in the presence 
of regular Baltimore County police who had been called 
to eject them from the park. Under similar circumstances, 
the appellants in this ease—in the progress of an invasion 
of another amusement park as a protest against the law­
ful segregation policy of the operator of the park—were 
arrested for criminal trespass committed in the presence 
of a special deputy sheriff of Montgomery County (who 
was also the agent of the park operator) after they had 
been duly notified to leave but refused to do so. It follows— 
since the offense for which these appellants were arrested 
was a misdemeanor committed in the presence of the park 
officer who had a right to arrest them, either in his private 
capacity as an agent or employee of the operator of the 
park or in his limited capacity as a special deputy sheriff 
in the amusement park (see Kauffman, The Law of Arrest 
in Maryland, 5 Md.L.Rev. 125, 149)—the arrest of these 
appellants for a criminal trespass in this manner was no 
more than if a regular police officer had been called upon 
to make the arrest for a crime committed in his presence, 
as was done in the Drews case. As we see it, the arrest and 
conviction of these appellants for a criminal trespass as a 
result of the enforcement by the operator of the park of 
its lawful policy of segregation, did not constitute such 
action as may fairly be said to be that of the State. The 
action in this case, as in Drews, was also ‘ ‘ one step removed 
from State enforcement of a policy of segregation and 
violated no constitutional right of appellants.”

The judgments as to the Griffin appellants will be af­
firmed.

The Case Against the Greene Appellants
There is not enough in the record to show that the 

Greenes were duly notified to leave the restaurant by the 
only persons who were authorized by the statute to give 
notice. The record discloses that these appellants- entered 
the park and crossed over it into the restaurant on the 
premises, but there was no evidence that the operator or



29

lessee of the restaurant or an agent of his either advised 
these appellants that they were unwelcome or warned them 
to leave. There was evidence that the park officer had 
ordered these appellants to leave, but it is not shown that 
he was authorized to do so by the lessee, and a new written 
agreement for the 1959 and 1960 seasons having been sub­
stituted for the former agreement covering the 1957 and 
1958 seasons, the state of the record is such that it is not 
clear that the lessor had reserved the right to continue 
policing the leased premises as had been the case during 
the 1957-1958 period. Under these circumstances, it ap­
pears that the notice given by the park officer was ineffec­
tive. There is little doubt that these appellants must have 
known of the racial segregation policy of the operator of 
the park and that they were not welcome anywhere therein, 
but where notice for a definite purpose is required, as 
was the case here, knowledge is not an acceptable notice 
where the required notification is incident to the infliction 
of a criminal penalty. 1 Merrill, Notice, § 509. See also 
Woodruff v. State, 54 So. 240 (Ala. 1911), where it was 
held (at p. 240) that “ [i]n order to constitute the offense 
of trespass after warning, it is necessary to show that 
the warning was given by the person in possession or his 
duly authorized agent.” And see Payne v. State, 12 S.W.2d 
528 (Tenn. 1928), .[a court cannot convict a person of a 
crime upon notice different from that expressly provided 
in the statute]. Since the notice to the Greene appellants 
was inadequate they should not have been convicted of 
trespassing on private property, and the judgments as to 
them must be reversed.

T h e  J u d g m en ts  A gainst  t h e  G r if f in  A p p e l l a n t s  A re 
A f f ir m e d ; T h e  J u d g m en ts  A gainst  t h e  G r e e n e  A p p e l ­
la n ts  A re R e v e r se d ; T h e  G r if f in  A ppe l l a n t s  S h a l l  P ay 
O n e -H alf of t h e  C osts ; and  M ontgom ery  C o u n ty  S h a l l  
P ay t h e  O t h e r  O n e -H a l f .

(7925-1)