United States v. Mississippi Brief for Appellants

    I n the

(Emtrt nf tit? United States
October T erm, 1964 

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

E vander F ord, et al.,
Petitioners,

—v.—
S tate of T ennessee,

Respondent.

PETITION FOR REHEARING OF ORDER DENYING 
PETITION FOR WRIT OF CERTIORARI TO THE 

SUPREME COURT OF TENNESSEE

H. T. Lockhard 
B. F. J ones

I. H. Murphy

J ack Greenberg 
J ames M. N abrit, III 
D errick A. B ell, J r.

Suite 2030 
10 Columbus Circle 
New York, N. Y., 10019

R. B. S ugarmon, J r.
B. L. H ooks 
A. W. W illis

588 Vance Avenue 
Memphis, Tennessee

Attorneys for Petitioners

Of Counsel



30580—2 Proofs—7-13-64
I n the

Supreme (dmtrt of %  Itttl?b States
October T erm, 1964 

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

E vander F ord, et al., 

—v.—
Petitioners,

S tate of Tennessee,
Respondent.

PETITION FOR REHEARING OF ORDER DENYING
PETITION FOR WRIT OF CERTIORARI TO THE 

SUPREME COURT OF TENNESSEE

Petitioners, Evander Ford, Jr., Alford 0. Gross, James 
Harrison Smith, Ernestine Hill, Johnnie May Rogers, 
Charles Edward Patterson, Edgar Lee James and Katie 
Jean Robertson, pray that this Court grant rehearing of 
its Order of June 22, 1964, denying the Petition for Writ 
of Certiorari, and that a Writ of Certiorari issue to review 
the judgment of the Supreme Court of Tennessee in the 
above entitled case as prayed for in the Petition filed Sep­
tember 1,1962, herein.

Negro petitioners were arrested in Memphis, Tennessee, 
on August 30, 1960, at an open air auditorium located in 
city-owned Overton Park which had been leased to a church 
group for a segregated church meeting. They were con­
victed on June 19 and 20th, 1961, of willfully disturbing 
a religious worship (§39-1204, Tenn. Code Annot.) and 
each was sentenced to 60 days in jail and fines of $175.00 to 
$200.00. The Supreme Court of Tennessee affirmed the 
convictions on March 7, 1962.



2

Reasons for Granting Rehearing, Issuing the Writ 
or Granting Other Appropriate Relief

On May 27, 1963, this Court decided Watson v. City of 
Memphis, 373 U. S. 526, holding that delay in desegregating 
public recreational facilities in the City of Memphis could 
not be justified under the Constitution. The original record 
filed in that case contains facts, which by decisions of this 
Court handed down subsequent to the trial of this cause, 
are pertinent to, but not contained in, the records of the 
petitioners’ convictions.

At the time of petitioners’ arrests, Overton Park was 
designated by the City of Memphis for use by white per­
sons only (Orig. R. 18, 24).* Negroes were excluded from 
Overton Park, and if Negroes attempted to enter the Over- 
ton Park or any other segregated park, they could be re­
quested to leave by the Park Director, park employees, or 
any member of the public (Orig. R. 26, 188) (T. R. 75-76). 
Park personnel were informed as to which public parks 
Negroes were permitted to use (Orig. R. 26). After Watson 
v. City of Memphis was filed in May 1960 to desegregate 
public recreational facilities in Memphis, the City deseg­
regated some facilities previously limited to whites, includ­
ing a zoo and art gallery located in Overton Park to which 
Negroes were admitted in November 1960 (Orig. R. 167) 
(T. R. 66). Generally, Negroes were not advised by the City 
when parks and other recreational facilities were opened 
to them (Orig. R. 186) (T. R. 76-77). They were expected

* Record references cited as (Orig. R.) are to the pages of the 
original record in Watson v. City of Memphis, as prepared by the 
district court and subsequently forwarded to the Court of Appeals 
and to this Court. For convenience, pertinent excerpts of the 
original record have been made an appendix to this petition.

References cited as (T. R.) are to sections of the Watson record 
printed in the Transcript of Record for this Court (No. 424 Oct 
Term, 1962).



3

to learn of changes in racial policy by usage (Orig. R. 187) 
(T. R. 76). As one city official put it, Negroes were free 
to use any park where police did not put them out (Orig. 
R. 185) (T. R. 76-77).

Thus, it appears that at the time when petitioners were 
arrested at Overton Park, it was segregated pursuant to 
City policy.

On May 20, 1963, this Court in Peterson v. City of Green­
ville, 373 U. S. 244, reversed trespass convictions of Negroes 
who, after having been refused service at a lunch counter 
because of race, remained seated over the manager’s pro­
test. There, a city ordinance forbade nonsegregated food 
service, but the State contended that the arrests were made 
pursuant to the manager’s request and not the segregation 
ordinance. The Court ruled however, that:

“When a State agency passes a law compelling per­
sons to discriminate against other persons because of 
race, and the State’s criminal processes are employed 
in a way which enforces the discrimination mandated 
by that law, such a palpable violation of the Four­
teenth Amendment cannot be saved by attempting to 
separate the mental urges of the discriminators.” 373 
U. S., at 248. See also Lombard, v. Louisiana, 373 U. S. 
267.

Similarly, in Lombard v. Louisiana, 373 U. S. 267, also 
decided on May 20, 1963, the Court reversed trespass con­
victions of Negroes who refused to leave a refreshment 
counter in New Orleans after being advised by the manage­
ment that the counter was operated on a segregated basis 
and served only white patrons. Segregated facilities were 
not dictated by any statute or ordinance in New Orleans, 
but the Mayor and Superintendent of Police had issued 
statements warning that persons participating in sit-in



4

demonstrations would be arrested. The Court ruled that 
the convictions as in Peterson, supra, had been commanded 
by the voice of the State and could not stand.

On June 22, 1964, this Court, in Robinson v. State of
Florida,-----  U. S. ----- , reversed convictions of Negroes
and whites who were refused service at a Miami restaurant. 
Again, relying on the rationale of Peterson, supra, and 
Lombard, supra, the Court ruled that State health regula­
tions requiring separate facilities for each race connoted 
a State policy of segregation which placed discouraging 
burdens on any restaurant serving the two races together.

Petitioners submit that this Court’s rulings in Peterson, 
Lombard and Robinson, are applicable to the convictions 
for which review is sought. As the Record in Watson v. 
City of Memphis makes clear, segregation in Overton Park 
was required by the City of Memphis. Legal action had 
been initiated to desegregate all facilities such as Overton 
Park and the City had begun a practice of desegregating 
some parks, not by announcing that they were desegregated, 
but by not arresting Negroes who attempted to use them.

Thus, petitioners’ arrests were not only mandated by 
state policy as in Peterson, Lombard and Robinson, but 
took place during a period when some Negroes, willing to 
risk humiliation and possible arrest, were being permitted 
to use some previously segregated park facilities. More­
over, as set forth in the records of their convictions (R. 
instant case, 78-79), their presence at the meeting was in 
response to newspaper invitations not limited to whites. 
Upon refusal to leave at the request of church officials 
(R. 91), they were directed to seats in the rear of the 
auditorium (R. 285, 293); and even after ignoring this 
request and obtaining seats among the audience (R. 92), 
the meeting continued until the police arrived, halted the 
proceedings and arrested petitioners (R. 298).



5

There is no significant distinction between the charges 
of trespass in Peterson, Lombard and Robinson, and the 
charges of disturbing a public worship, which would justify 
the reversal of trespass convictions while permitting peti­
tioners’ convictions for disturbing worship to stand. As 
set forth in the original petition, the source of disturbance 
when petitioners entered Overton Park Auditorium was 
not their conduct, but their color.

Having both reversed convictions on similar facts in 
Peterson, Lombard and Robinson, and having on a number 
of occasions reversed convictions of peaceful individuals 
convicted of disturbing the peace because of the acts of 
hostile onlookers, cf. Henry v. City of Rock Hill, 376 U. S. 
776; Edwards v. South Carolina, 372 U. S. 229; Garner v. 
Louisiana, 368 U. S. 157, this Court, we respectfully submit, 
ought not assume that the Tennessee Supreme Court would, 
in the light of these decisions, apply the disturbance of 
public worship statute to petitioners’ conduct. Barr v. 
City of Columbia,----- U. S. —— (June 22, 1964).

CONCLUSION

For the reasons set forth above and in the Petition for 
Writ of Certiorari, it is respectfully urged that rehearing 
be granted and that upon such rehearing, a Writ of Cer­
tiorari issue to the Supreme Court of Tennessee. In addi­
tion, petitioners respectfully submit that it would not be 
inappropriate were this Court to enter an order vacating 
the judgments and remanding the cases to the Supreme 
Court of Tennessee for further proceedings in the light of 
this Court’s decisions in Peterson v. City of Greenville, 
Lombard v. Louisiana and Robinson v. Florida. Cf. Henry 
v. City of Rock Hill, -----  U. S. ----- , 11 L. ed. 2d 38;



6

Randolph v. Virginia, 374 U. S. 97; Henry v. Virginia, 374 
U. S. 98; Thompson v. Virginia, 374 U. S. 99; Wood v. 
Virginia, 374 U. S. 100.

Respectfully submitted,

H. T. Lockhard 
B. F. J ones

I. H. Murphy

J ack Greenberg 
J ames M. N abrit, III 
D errick A. B ell, J r.

Suite 2030 
10 Columbus Circle 
New York, N. Y., 10019

R. B. S ugarmon, J r.
B. L. H ooks 
A. W. W illis

588 Vance Avenue 
Memphis, Tennessee

Attorneys for Petitioners

Of Counsel



7

Certificate o f Counsel

I hereby certify that the foregoing petition for rehearing 
is presented in good faith and not for delay and is restricted 
to grounds specified in Rule 58 of the Rules of this Court.

Attorney for Petitioners



9

APPENDIX

Pertinent excerpts from portions of original record in 
Watson v. City of Memphis, 373 U. S. 526.

H arold S. L ewis, Director of the Memphis Park Com­
mission.

# # # # #

By Attorney Willis:

Q. [Referring to Plaintiffs’ Exhibit 2] Will you read 
the caption on there, what that list is all about! A. This 
is the City-owned parks, operated by the Park Commission.

Q. All of the City parks! A. All of the City-owned 
parks.

Q. All of the City-owned parks ? A. That’s right.
Q. Is it true that some of those parks are used by negroes 

and others are used by whites! A. That is correct.
Q. Is it true that some of them are used by both races! 

A. That is correct.
Q. Are you familiar with which ones are used by negroes

—18—
and which ones are used by whites? A. Yes.

—19—
# # # # #

Overton Park is white with the exception of the Zoo.
—24—

# # # # #
Q. When you speak of white and negro you mean that 

negroes can not go in the park that is designated as white? 
A. That is right.

Q. And white people can not go in the parks that are 
designated for negroes? A. That is right.

Q. In the event negroes were in a park that was desig­
nated as white what would be the policy? A. They would 
be asked to leave.



10

Q. By whom? A. By the Park Director.
Q. The line is drawn clear and you all have instructed 

your employees which parks negroes can not use? A. 
That is right.

Q. And which parks white people can not use? A. Yes, 
that is right.

—26—
# # # # #

Q. Again we would like to have you indicate on these lists 
those [park facilities] which are used by negroes and which 
by white? A. (Reading) “Golf Courses” :

—27—
# * # * #

Overton is for white.
—28—

# # # # #
Q. (Continuing) Now will you look at that list [Plain­

tiffs’ Exhibit 3] and tell us what it is about? A. That is 
the 1961 list of the playgrounds operated by the recreation 
department of the Memphis Park Commission, controlled 
by the Park Commission.

Q. Again we will go down that list and indicate those 
used by negroes and those used by white and those that are 
used by both, if any?

—31—
# # # # #

Overton is white.
—33—

# # # # #
Q. We had mentioned the park—Overton Park. I believe 

the only thing used by both, the zoo? A. And art gallery.
Q. But are there dual sets of toilets out there? A. There

- 3 5 -
are dual sets of toilets.

Harold 8. Lewis—Direct

*# # #
— 36—



11

H arry P ierotti, Chairman of the Memphis Park Com­
mission.

Q. Now, what about your plan for the future, Mr. Pier­
otti? Does the Park Commission plan to open up other 
facilities in the future? Have you evolved any plan with

—114-
regard to that? A. Mr. Prewitt, I think I can better ex­
press that if I would read the plan which we have evolved, 
so there won’t be any mistake about what our plan is for 
the immediate future.

Q. All right, sir. Suppose you read that plan. A. (Read­
ing)

“Having heretofore, before the filing of this suit, pro­
vided twenty-one parks in the City on a non-segregated 
basis, and having recently removed restrictions at 
Overton Park Zoo, Art Gallery in Overton Park and 
the Boat Dock at McKellar Lake, the Park Commis­
sion, following a practice already adopted, has evolved 
the following plan and the following facilities will be 
open to all races without restrictions at the dates indi­
cated.”

—115—
# # # # #

“Overton Park Golf Course, March 1st, 1963, . . . ”
—116-

Harry Pierotti—Direct

H a rold S. L ewis, Director of the Memphis Park Commis­
sion.

# # # # #
By Attorney Preivitt:

Q. As testified by Mr. Pierotti, the Overton Park Zoo has 
already—all restrictions about admittance of colored as well 
as white has been removed? A. Right.



12

Q. So that both races may be admitted to the Overton 
Park Zoo at any time the Zoo is open? A. Right.

Q. And that restriction was voluntarily removed by the 
Park Commission in December of 1960? A. The day after 
Thanksgiving, 1960.

Q. And the art gallery in Overton Park, the restriction 
there was likewise removed a few months ago on a voluntary 
basis? A. Right.

—167—
# # # # #

Q. I say they can use any place where the police do not 
put them out? Is that your statement? A. The police do 
not put them out there.

—184—
Q. I say if the police do not put them out of a particular 

park, then they are free to use it? A. Certainly.
Q. They would not know, according to your testimony, 

whether they are free to use it until the police asked them 
to get out? A. That could be.

—185—
* # # # #

Q. Does the Park Commission have any policy of public 
announcement when they integrate a facility? A. The

- 1 8 5 -
Park Commission’s policy has been to avoid any trouble as 
to integrating without any fanfare, such as was done at the 
Zoo.

Q. But there was an announcement that the Zoo was de­
segregated, was there not? A. There was a very small an­
nouncement, yes.

Q. As to these other integrated facilities that you men­
tioned in your testimony, has there been any announcement 
that negroes could use them?

# # * # #

Harold 8. Lewis—Direct



13

A. There was no announcement that negroes could use 
them, nor was there an announcement that whites could 
use places that had been for negroes.

—186—
Q. As I understand your testimony, the criteria is 

whether or not the police arrest you or run you out? A. I 
wouldn’t say that.

Q. What is the criteria? A. The criteria is the parks 
are open to all races and they use them.

Q. How would the members of the public know that the 
parks are open to all races if there is no announcement 
made? A. By usage.

Q. If the police don’t run you out, as you said before? 
A. By usage.

Q. You are saying that we are free to go to any park in 
the City of Memphis that we wish to go to, as long as no 
one runs us out, is that your testimony? A. As long as 
no one asks you to leave.

Q. We are free to go to all of them as long as no one
asks us to leave? A. Yes.

Q. At the point that we are asked to leave, then what is 
the policy? A. We are still operating under a segregated 
park system in that case, and we would ask you to leave,

—187—
and if you caused trouble by not leaving, we would then 
call the police.

Q. Who would have the authority to ask us to leave, any 
member of the public, or would it have to be an employee 
of the Park Department or the Police? A. Certainly any 
member of the public could ask you, but it would have to be 
park personnel to have any authority as far as the Park 
Commission is concerned.

Q. Are you familiar with the location of Glenview Park? 
A. I am.

Harold S. Lewis—Cross



*

14

Harold S. Lewis—Cross

Q. Negroes could go there and use that if they are not 
asked to leave? A. They would be asked to leave.

Q. They would be asked to leave? A. That’s right.
Q. Who would ask them to leave? A. The Director of 

the park or the police.
Q. If they peacefully refused to leave, what would be 

the follow-up procedure of the Park Commission? A. 
After being asked in every nice way known, the Park Di­
rectors are instructed to call the Park Police.

Q. And have the negroes arrested? A. Have them 
forcibly ejected or arrested, yes.

— 189—