Graham v. Florida Brief Amici Curiae in Support of Petitioners

    No. 181

IN THE SUPREME COURT OF THE

UNITED STATES
October Term, 1964

HENRY J. THOMAS, JAMES FARMER, JOHN LEE COPE­
LAND, ERNEST PATTON, JR., GRADY H. DONALD, 
PETER ACKERBERG, JAMES LUTHER BEVEL, PAUL­
INE EDYTHE KNIGHT, CHARLES DAVID MYERS, 
CAROLYN YVONNE REED, JOSEPH JOHN McDON- 
ALD, RAYMOND RANDOLPH, JR., ALEXANDER AN­
DERSON, LESTER G. McKINNIE, WILLIAM E. HAR­
BOUR, ZEV AELONY, MARVIN ALLEN DAVIDOV, 
CLAIRE O’CONNOR, DAVID KERR MORTON, KATH­
ERINE A. PLEUNE, ROBERT FILNER, ELIZABETH S. 
ADLER, SANDRA NIXON, TERRY SUSAN PERLMAN, 
EDWARD J. BROMBERG, LESTRA ALENE PETERSON, 
THOMAS VAN ROLAND, JOAN FRANCES PLEUNE 
AND GRANT HARLAN MUSE, JR__________ Petitioners

vs.
STATE OF MISSISSIPPI______________________Respondent

RESPONSE TO PETITION FOR WRIT OF 
CERTIORARI TO THE SUPREME COURT 

OF MISSISSIPPI

JOE T. PATTERSON 
Attorney General 
State Of Mississippi

BY JOHN A. TRAVIS
Special Assistant Attorney General 
Electric Building 
Jackson, Mississippi

BY ROBERT G. NICHOLS, JR.
Special Assistant Attorney General 
500 First Federal Building 
P. O. Box 1526 
Jackson, Mississippi



I N D E X
Page

STATEMENT ____________________________________  1

OPPOSITION TO REASONS FOR GRANTING 
W RIT ___________________________________________  4

I. THE CONVICTIONS OF PETITIONERS 
DO NOT OFFEND DUE PROCESS__________  4

II. THE STATUTE UNDER WHICH PETI­
TIONERS WERE CONVICTED IS NOT SO 
VAGUE, UNCERTAIN AND INDEFINITE 
AS TO CONFLICT W ITH THE DUE PRO­
CESS CLAUSE OF THE FOURTEENTH 
AMENDMENT _______________________________ 5

III. THESE CONVICTIONS DO NOT CONSTI­
TUTE STATE ENFORCEMENT OF RAC­
IAL SEGREGATION IN INTERSTATE 
FACILITIES C O N T R A R Y  TO THE 
EQUAL PROTECTION CLAUSE OF THE 
FOURTEENTH AMENDMENT, ARTICLE 
1, SECTION 8, CLAUSE 2 (COMMERCE 
CLAUSE) OF THE UNITED STATES 
CONSTITUTION AND 49 U.S.C., SEC­
TION 3(1) and 316(d)_________________________  5

IV. THESE CONVICTIONS DO NOT CON­
FLICT W I T H  FIRST AMENDMENT 
GUARANTEES OF FREE SPEECH, AS­
SEMBLY AND ASSOCIATION_______________ 6

CONCLUSION ____________________________________  7

CE RTIFICATE__________________   8

APPENDIX
AFFIDAVIT OF ROBERT LILLY_____________  9



IN THE SUPREME COURT OF THE

UNITED STATES
October Term, 1964

No. 181

HENRY J. THOMAS, JAMES FARMER, JOHN LEE COPE­
LAND, ERNEST PATTON, JR., GRADY H. DONALD, 
PETER ACKERBERG, JAMES LUTHER BEVEL, PAUL­
INE EDYTHE KNIGHT, CHARLES DAVID MYERS, 
CAROLYN YVONNE REED, JOSEPH JOHN MCDON­
ALD, RAYMOND RANDOLPH, JR., ALEXANDER AN­
DERSON, LESTER G. McKINNIE, WILLIAM E. HAR­
BOUR, ZEV AELONY, MARVIN ALLEN DA VIDOV, 
CLAIRE O’CONNOR, DAVID KERR MORTON, KATH­
ERINE A. PLEUNE, ROBERT FILNER, ELIZABETH S. 
ADLER, SANDRA NIXON, TERRY SUSAN PERLMAN, 
EDWARD J. BROMBERG, LESTRA ALENE PETERSON, 
THOMAS VAN ROLAND, JOAN FRANCES PLEUNE 
AND GRANT HARLAN MUSE, JR_________ Petitioners

vs.
STATE OF MISSISSIPPI______________________ Respondent

RESPONSE TO PETITION FOR WRIT OF 
CERTIORARI TO THE SUPREME COURT 

OF MISSISSIPPI

STATEMENT IN RESPONSE TO THE 
PETITION FOR W RIT OF CERTIORARI

Respondent, before answering Petitioners’ reasons for 
granting the Writ as set out on page 32 of their Petition 
for Writ of Certiorari, feels that it is necessary to point 
out several discrepancies contained in the Statement 
(Petition, p. 7).

While it is true that each Petitioner was tried sepa­
rately, no motion was filed with the Trial Court for 
consolidation of any of the cases prior to trial. After



2

trial, there is no procedure known to Mississippi practice 
where an appellate court can consolidate cases on appeal. 
Had the motion been made prior to trial, the Defendants 
arrested at the same time and place would have had to 
be tried together or the trial court would have been in 
error. Petitioners are in error when they state that the 
State of Mississippi “ required a separate trial”  (Peti- ; 
tion, p. 9, n. 8). They are also in error when they say all 
were convicted (see affivadit of Circuit Clerk of Hinds] J 
County, Mississippi, appended hereto as Appendix I). 
Further, Petitioners fail to inform this Court that all 
those convicted were convicted in jury trials.

The statement of Petitioners that the witness Captain 
of Police Pay “ had numerous police officers on the 
scene for the purpose of arresting them and a patrol 
wagon parked outside to carry Petitioners off to ja il”  ,/ 
(Petition, p. 10) is contained in none of the thirty (30) 
transcripts of the trials of Petitioners and exists only in 
the minds of Petitioners’ brief writers.

Petitioners complain at length about the cash bonds 
wdiich were posted by various organizations such as the 
Congress of Racial Equality, National Association for 
the Advancement of Colored People and others. They 
state that no surety company in Mississippi would handle 
their appeal and appearance bond business (Petition, 
p. 9, n. 8). Surety companies usually are highly skeptical 
of transient clients and, since these Petitioners were all 
from without the State of Mississippi, it is nothing out 
of the ordinary for a surety company to refuse such busi- £ 
ness without the posting of one hundred percent collat­
eral. ' Of course, Petitioners fail to mention why they 
chose to post full collateral with the State of Mississippi 
rather than a private company. Also, they fail to point 
out that, not in one instance, did they attempt to follow



3

the usual procedure of getting two landowners to post 
a property bond as allowed under Mississippi law. Sec­
tion 1175, Mississippi Code of 1942, as amended.

As concerns the group arrested on May 24, 1961, the 
witness Shoemaker did not make the statements ascribed 
to him (Petition, p. 13) on pages 541, 544, 545 and 546 of 
the Thomas record. These are statements of the witness 
Ray/^However, the witness Shoemaker did make the 
following statements:

“ Q. Now how many of these people were there in 
there that were not police officers or people that you 
didn’t know?

A. Thirty-five or forty.

Q. All right sir. Did you talk to any of these 1 

A. Some of them, yes.

Q. Were you able to form an opinion, based upon the 
conversations you had with these people that were in 
the station, as to how they felt about the arrival of this 
Defendant?

A. Yes.

Q. And the people with him. And what is that opin­
ion?

A. They had no intention of greeting him with any 
glad hand.

Q. Well, just what do you mean by that?

A. They came to do him harm, generally.”

(R. Thomas 510).

On cross-examination of the witness Shoemaker, the 
record reflects:



4

“ Q. Did you see any citizen of Jackson start toward 
these freedom riders in any way when they came in, 
run toward them, walk hurriedly toward them!

A. There was a crowd of people gathered around 
them quickly when they came in sight, and the police 
had them to move back. ’ ’

(R. Thomas 519).

As concerns the arrests made on May 28, 1961, (Peti­
tion, p. 16), Captain Ray may have admitted that no 
overt act was committed but Respondent would point out 
that this is immaterial as these Petitioners were not 
charged with an attempt but with the actual commission 
of a breach of the peace.

OPPOSITION TO REASONS FOR 
GRANTING W RIT

I.

THE CONVICTIONS OF PETITIONERS DO NOT 
OFFEND DUE PROCESS. Respondents do not deny 
the right of Petitioners to use interstate transportation 
facilities in the City of Jackson, Mississippi. Petitioners 
do not deny the holding of this Court in Boynton v. Vir­
ginia, 364 US 454, and the other cases cited by Petitioners 
(Petition, p. 32). However, Respondent asserts that when 
a person breaches the peace by conduct which will incite 
violence, the State may exercise its police power by 
ordering such a person to move out of that vicinity. The 
witness Ray recites in all of the thirty (30) cases at bar 
that he was of the opinion that breach of the peace was 
about to occur. These Petitioners were arrested under 
a valid statute with ample proof being presented to a 
jury of each of Petitioners’ guilt.



5

II.

SECTION 2087.5, MISSISSIPPI CODE OF 1942, AS 
AMENDED, RECITED IN FULL IN THE PETITION 
FILED HEREIN (PETITION, P. 4), IS NOT SO 
VAGUE, UNCERTAIN AND INDEFINITE AS TO 
CONFLICT W ITH THE DUE PROCESS CLAUSE 
OF THE FOURTEENTH AMENDMENT. A  criminal 
statute must be sufficiently definite to give notice of 
required conduct to one who would avoid its penalties 
and to guide the judge in its application and the lawyer 
in defending one charged with its violation. Boyce Motor 
Lines v. United States, 342 US 337, People v. Gala-mison 
(1964), 250 N.Y.S. 2d 325.

The decision of Edwards v. South Carolina, 372 US 
does not apply here. In that case, there was no evidence 
that any of the crowd of onlookers actually caused or 
threatened any trouble. Here, in every arrest, there was 
the element of potential violence from the crowds gath- 
red around the Petitioners. In truth, the facts here more 
closely parallel those in Feiner v. New York, 340 US 315.

Section 2087.5, Mississippi Code of 1942, as amended, 
adequately gives notice of the required conduct to one 
who would avoid its penalties. The opinion of Justice 
Gillespie in Farmer v. Mississippi (Petition, Appendix, 
p. 38A) sets out the constituent elements of the offense 
charged. All of the elements were proved in each trial. 
The enforcing officer has adequate guides in situations 
when he determines that violence is about to erupt to 
order persons to move on.

III.

THESE CONVICTIONS DO NOT CONSTITUTE 
STATE ENFORCEMENT OF RACIAL SEGREGA­
TION IN INTERSTATE FACILITIES CONTRARY



6

TO THE EQUAL PROTECTION CLAUSE OF THE 
FOURTEENTH AMENDMENT OF THE UNITED 
STATES CONSTITUTION.

Certainly Respondent cannot deny the existance of 
the statutes requiring racial segregation as recited, by 
Petitioners (Petition, p. 41). However, Respondent 
denies that any of these statutes were enforced against 
any of Petitioners. These Petitioners were arrested 
under the provisions of Section 2087.5, Mississippi Code 
of 1942, which is almost identical with a New York State 
statute. New York Penal Law, Consol. Laws, C.49, Sec­
tion 722. Many states which have not been concerned 
with segregation statutes on their books have similar 
laws. The power granted a policeman on a beat to require 
citizens to move out of a given area when the officer has 
a valid reason for doing so is a basic concept in the matter 
of preserving the peace of a community. This statute 
was upheld in People v. Galamison, supra, when the New 
York Supreme Court felt that “ the conduct of the defend­
ants was likely to occasion a breach of the peace. ’ ’

IV.

THESE CONVICTIONS DO NOT CONFLICT WITH 
FIRST AMENDMENT GUARANTEES OF FREE 
SPEECH, ASSEMBLY AND ASSOCIATION.

Again, Respondent asserts that Edwards v. South 
Carolina, 377 US 229, has no application here. Respond­
ent would show that there was ample evidence in each 
arrest of impending violence.



7

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the Writ of Certiorari should be denied.

Respectfully submitted,

JOE T. PATTERSON 
Attorney General of Mississippi

JOHN A. TRAVIS 
Special Assistant Attorney General

ROBERT G. NICHOLS, JR.
Special Assistant Attorney General



8

CERTIFICATE

I, Robert G. Nichols, Jr., Special Assistant Attorney 
General for the State of Mississippi, do hereby certify 
that I have mailed a true copy of the foregoing Response 
to Petition for Writ of Certiorari to the Supreme Court 
of Mississippi to the following counsel of record for the 
Petitioners, via United States mails, postage prepaid, to- 
wit:

Jack Greenberg 
James M. Nabrit, III 
Derrick A. Bell, Jr.
10 Columbus Circle
New York, New York 10019

Jack Young 
Carsie Hall
115% North Farish Street 
Jackson, Mississippi

R. Jess Brown
125% North Farish Street
Jackson, Mississippi

This the 2nd day of November, 1964.



9

APPENDIX
STATE OF MISSISSIPPI 
COUNTY OF HINDS

This day personally appeared before me, the under­
signed authority in and for the state and county afore­
said, duly commissioned by law to administer oaths and 
take acknowledgments, Robert Lilly, who, being by me 
first duly sworn, states on his oath:

1. That, affiant is a Deputy Clerk of the County Court 
of the First Judicial District of Hinds County, Missis­
sippi ;

2. ■ That, affiant is fully familiar with the records of 
the Office of the Circuit Clerk of Hinds County, Mis­
sissippi, the Clerk of same serving also as the Clerk of 
the County Court of Hinds County, Mississippi;

3. That, affiant has searched the dockets of the County 
Court of the First Judicial District of Hinds County, 
Mississippi and finds that the following cases, each de­
fendant being charged therein with a violation of Section 
2087.5, Mississippi Code of 1942, as amended, and each 
defendant being a part of the group of cases commonly 
known as “  Freedom Riders ’ ’, and that the dockets of 
said cases reflect the following disposition by the said 
Court:

Docket
No. Defendant

12,655 James Thomas Carey 5-1-62 - Motion for 
directed verdict 
sustained;
3-30-62 - Motion for 
directed verdict 
sustained;

Disposition

12,723 Mark Lane



10

Docket
No. Defendant Disposition

12,733 Orville Bert Luster 

12,777 Kenneth Martin Shilman 

12,782 Felix Jacques Singer 

12,788 Percy E. Sutton

12,796 Daniel Ray Thompson 

12,806 0  ’Neal V  ance

5-1-62 - Directed 
verdict for defend­
ant;
12-14-61 - Directed
verdict for defend­
ant;
12-23-62 - Directed 
verdict for defend­
ant;
3-30-62 - Defendant 
dismissed on re­
quest of Pros. 
Atty.;
12-28-61 - Directed 
verdict for defend­
ant;
1-5-62 - Directed 
verdict for defend­
ant;

12,815 Ralph Edward Washington 1-23-62 - Directed
verdict for defend­
ant;

12,841 Ray A. Cooper 5-21-62 - nolle
prosequi;

12.850 Percy Lee Johnson 3-27-62 - Directed
verdict for defend­
ant;

12.851 James Wilson Jones 3-22-62 - Directed
verdict for defend­
ant;



11

Docket
No.

12,907

12.928

12.929

12.930

12.931

12.932

12.933

12.934

12.935

12.936

12.937

12.938

12.939

Defendant Disposition

Morton Brace Slater

Gilbert S. Avery, III

James Pleasant Breeden

Myron B. Bloy, Jr.

John Cracker, Jr.

John Marvin Evans 

James Walker Evans 

Quinland Reeves Gordon 

John B. Morris

4-24-62 - Directed 
verdict for defend­
ant;
4-9-62 - Directed 
verdict for defend­
ant ;
4- 9-62 - Directed 
verdict for defend­
ant ;
5- 21-62 - nolle 
prosequi;
5-21-62 - nolle 
prosequi;
5-21-62 - nolle 
prosequi;
5-21-62 - nolle 
prosequi;
5-21-62 - nolle 
prosequi;
5-21-62 - nolle 
prosequi;

Robert Laughlin Pierson 5-21-62 - nolle
prosequi;

Geoffrey Sedgewick Simpson 5-21-62 - nolle
prosequi;

William Andrew Wendt 5-21-62 - nolle
prosequi;

Vernon P. Woodward 5-21-62 - nolle
prosequi;



12

Docket
No. Defendant Disposition

12,940 Merrill Orne Young 5-21-62 - nolle

12,941 James Garrard Jones
prosequi;
5-22-62 - Defendant

12,942 Eobert P. Taylor

not guilty - dis­
charged ; 
5-21-62 - nolle

13,165 Lavert H. Taylor
prosequi; 
5-21-62 - nolle

13,166 Charles Andre Jones
prosequi; 
5-21-62 - nolle

13,167 Glenda Faye Jackson
prosequi; 
5-21-62 - nolle

4. Further affiant saith not.

prosequi;

/ s /  EOBEET LILLY

8WOEN TO AND SUBSCRIBED BEFOEE ME 
this 26 day of October, 1964.

H. T. ASHFOED, JE., Circuit Clerk 
By / s /  E. D. Thompson, D.C.

(SEAL)

MY COMM. E X :_______________________