United States v. Jefferson County Board of Education Opinion

    A/a

XlsT THE

(Eourt at tl}? Intted S>tata
October T erm, 1964 

No. 148

L ester G. McK innie, et al., 

—v.—
Petitioners,

T ennessee.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OP THE 
STATE OF TENNESSEE

BRIEF FOR PETITIONERS

Jack Greenberg 
Constance Baker M otley 
J ames M. Nabrit, III 

10 Columbus Circle 
New York, New York 10019

A von N. W illiams 
Z. A lexander L ooby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioners

Charles S. R alston 
of Counsel



I N D E X

Opinions Below .................................................................  1

Jurisdiction........... - ........................................................... 1

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

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

Statement of the Case...................................................... 5

Summary of Argument ......... ................. - ......................  10

Argument....................-.....................................................  13
I. The Enactment of the Civil Rights Act of 

1964, Subsequent to These Convictions But 
While They Were Still Under Direct Review, 
Makes Necessary Either Their Outright Re­
versal or a Remand to the State Courts for Con­
sideration of That A c t ......................................... 13
A. The Civil Bights Act of 1964 Abates These

Prosecutions As a Matter of Federal Law, 
and These Cases Should Be Reversed on 
That Ground.................................................... 13

B. The Least Possible Consequence in This
Case, of the Rule Announced in Bell v. 
Maryland Is Its Remand to the State Court, 
for Consideration There of the Effect of 
the Enactment of the Federal Civil Rights 
Act of 1964 ...................................................... 15

PAGE



11

II. Petitioners’ Convictions Enforced Racial Dis­
crimination in Violation of the Fourteenth 
Amendment to the Constitution of the United 
States —.......................................... - .....................  17

III. Petitioners’ Convictions Deny Due Process of
Law Because They Are Based on No Evidence 
of the Essential Elements of the Crime of Un­
lawful Conspiracy ................................................  19

IV. Petitioners Were Denied Due Process in Vio­
lation of the Fourteenth Amendment When the 
Trial Judge Instructed the Jury That Peti­
tioners Were Charged With Violation of a Stat­
ute When (a) Petitioners Had Not in Fact 
Been Indicted for Violation of the Statute and

PAGE

(b) It Was Not Even a Criminal Statute .... 24

V. Petitioners Were Denied Due Process in That 
Their Convictions Were Affirmed on a Ground 
Not Litigated in the Trial Court...................27

VI. Petitioners Were Denied a Fair and Impartially 
Constituted Jury Contrary to Due Process of 
Law and Equal Protection of the Laws Secured 
by the Fourteenth Amendment to the United
States Constitution ............. ...........................29

Conclusion........................................................................  32

A ppendix .......................... ..................... -................................— la

Civil Rights Act of 1964, Title I I ............. ..... ......... . la



I l l

T able of Cases

Aldridge v. United States, 283 II. S. 308 12, 31

PAGE

Bell v. Maryland, 378 U. S. 226 ......................... 10,14,15,16

Cantwell v. Connecticut, 310 U. S. 296 .........................  23
Cline y . State, 204 Tenn. 251, 319 S. W. 2d 227 (1958) 20 
Cole v. Arkansas, 333 U. S. 196 ..................12, 20, 26, 27, 29

DeJonge v. Oregon, 299 U. S. 353 ................................... 26
Delaney v. State, 164 Tenn. 432, 51 S. W. 2d 485 (1932) 20

Garner v. Louisiana, 368 U. S. 157 -........... -..... -11, 21, 22, 23
Glasser v. United States, 315 U. S. 60 ..........-..................  31

Hamilton v. Alabama, 368 U. S. 52 .................................  27
Hauenstein v. Lynham, 100 U. S. 483 .............................  16

Lombard v. Louisiana, 373 U. S. 267 ........................... 10,18

Sbelley v. Kraemer, 334 U. S. 1 ............ -.......................  18
Shuttlesworth v. City of Birmingham, 376 U. S. 339 .... 26
Smith v. Texas, 311 U. S. 128........................................  31
Stromberg v. California, 283 U. S. 359 .............. 12, 25,27

Terminiello v. Chicago, 337 U. S. 1 ......... ............-12, 25, 27
Thiel v. Southern Pacific Co., 328 U. S. 217 ..............  31
Thompson v. Louisville, 362 U. S. 199.............................  23

United States v. Chambers, 291 U. S. 217...................... 14
United States v. Tynen, 78 U. S. (11 Wall.) 88 ..............  14

Winters v. New York, 333 U. S. 507 23



IV

F ederal Statutes

Civil Eights Act of 1964, Title II, 78 Stat. 241 

1 IT. S. C. §109, 61 Stat. 635 ...............................

.3,10,13, 
14,15 

......  3

PAGE

State Statutes

1 Maryland Code §3 (1957) ............................................  15

Tenn. Code Ann. §1-301 ................................................5,16

Tenn. Code Ann. §39-1101(7) ............................. 4,17,19,24
Tenn. Code Ann. §62-710 .........................4,18, 24, 25, 26, 27
Tenn. Code Ann. §62-711 .....................................5,17,19, 24

Other A uthority

Brief for Petitioners, Hamm v. City of Bock Hill, No. 
2 October Term, 1964 .......... ....... .... ........ ............. 14



In t h e

B n p m i u  ( t a t r t  x d  %  Itttte it B t n t m
October Term, 1964 

No. 148

L ester G. McK innie, et al.,
Petitioners,

T ennessee.

ON WRIT OE CERTIORARI TO THE SUPREME COURT OE THE 
STATE OP TENNESSEE

BRIEF FOR PETITIONERS

Opinions Below

The opinion of the Supreme Court of Tennessee (R. 315)
is reported at------Tenn.------- , 379 S. W. 2d 214, the opinion
of the Supreme Court of Tennessee on petition for rehear­
ing (R. 328) is reported at------Tenn.------- , 379 S. W. 2d 221.
The Criminal Court of Davidson County, Tennessee, Divi­
sion Two, delivered no opinion (R. 314).

Jurisdiction

The final judgment of the Supreme Court of Tennessee, 
which is the order denying rehearing, was entered on March 
5, 1964 (R. 329). The petition for writ of certiorari was 
filed June 3, 1964, and granted October 12, 1964 (R. 331).



2

The jurisdiction of this Court is invoked pursuant to 28 
U. S. Code §1257(3), petitioners having asserted below and 
here denial of rights secured by the Fourteenth Amend­
ment to the Constitution of the United States.

Questions Presented

1. Does the federal Civil Eights Act of 1964 compel the 
reversal of these convictions, as a matter of federal law!

2. Must these cases be remanded to the state courts for 
consideration of the effect of the federal Civil Eights Act 
of 1964?

3. Do these convictions result in the enforcement of 
racial discrimination against petitioners, with such admix­
ture of “ state action” as to bring to bear the equal protec­
tion guarantees of the Fourteenth Amendment?

4. Is the record so devoid of any evidence of the essen­
tial elements of unlawful conspiracy as to render the con­
viction for that offense a deprivation of due process of law 
under the Fourteenth Amendment?

5. Did the action of the trial judge in instructing the jury 
three times that petitioners were charged with violating a 
law under which they had not been indicted and which was 
not even a criminal statute deprive petitioners of due proc­
ess of law under the Fourteenth Amendment?

6. Did the Supreme Court of Tennessee affirm peti­
tioners’ conviction on a ground not litigated in the trial 
court so as to deny them an appeal which considered the 
case as it was tried, in violation of the due process clause 
of the Fourteenth Amendment ?



3

7. Did a trial by an all-white jury, some of whose mem­
bers admitted personal belief in racial segregation, preclude 
petitioners having a fair and impartial jury of their peers 
in violation of due process, and did the trial judge's refusal 
to dismiss jurors challenged by petitioners for good cause 
deny petitioners due process of law under the Fourteenth 
Amendment ?

Statutory and Constitutional Provisions Involved

1. This case involves the following provisions of the 
Constitution:

Article VI, Clause 2;
The Fourteenth Amendment

2. This case also involves the following statutes of the 
United States:

Civil Eights Act of 1964, Title II, 78 Stat. 243-246, 
set forth, infra, at p. la ;

1 U. S. C. §109, 61 Stat. 635:
Repeal of statutes as affecting existing liabilities.— 

The repeal of any statute shall not have the effect to 
release or extinguish any penalty, forfeiture, or lia­
bility incurred under such statute, unless the repeal­
ing Act shall so expressly provide, and such statute 
shall be treated as still remaining in force for the 
purpose of sustaining any proper action or prosecution 
for the enforcement of such penalty, forfeiture, or 
liability. The expiration of a temporary statute shall 
not have the effect to release or extinguish any penalty, 
forfeiture, or liability incurred under such statute, un­
less the temporary statute shall so expressly provide, 
and such statute shall be treated as still remaining in



4

force for the purpose of sustaining any proper action 
or prosecution for the enforcement of such penalty, 
forfeiture, or liability.

3. This case also involves the following sections of the 
Code of the State of Tennessee:

39-1101. “ Conspiracy” defined.—The crime of con­
spiracy may be committed by any two (2) or more per­
sons conspiring: . . . (7) to commit any act injurious 
to public health, public morals, trade, or commerce . . .

62-710. Right of owners to exclude persons from 
places of public accommodation.—The rule of the com­
mon law giving a right of action to any person ex­
cluded from any hotel, or public means of transporta­
tion, or place of amusement, is abrogated; and no 
keeper of any hotel, or public house, or carrier of pas­
sengers for hire (except railways, street, interurban, 
and commercial) or conductors, drivers, or employees 
of such carrier or keeper, shall be bound, or under any 
obligation to entertain, carry, or admit any person 
whom he shall, for any reason whatever, choose not to 
entertain, carry, or admit to his house, hotel, vehicle, 
or means of transportation, or place of amusement ; 
nor shall any right exist in favor of any such person 
so refused admission; the right of such keepers of 
hotels and public houses, carriers of passengers, and 
keepers of places of amusement and their employees to 
control the access and admission or exclusion of per­
sons to or from their public houses, means of trans­
portation, and places of amusement, to be as complete 
as that of any private person over his private house, 
vehicle, or private theater, or places of amusement for 
his family.



5

62-711. Penalty for riotous conduct.—A  right of ac­
tion is given to any keeper of any hotel, inn, theater, or 
public house, common carrier, or restaurant against 
any person guilty of turbulent or riotous^conduct 
within or about the same, and any person found guilty 
of so doing may be indicted and fined not less than one 
hundred dollars ($100), and the offenders shall be li­
able to a forfeiture of not more than five hundred dol­
lars ($500), and the owner or persons so offended 
against may sue in his own name for the same.

1-301—The repeal of a statute does not affect any 
right which accrued, any duty imposed, any penalty in­
curred, nor any proceeding commenced, under or by 
virtue of the statute repealed.

Statement

Petitioners, Lester Gr. McKinnie, Nathal \V inters, John 
R. Lewis, Harrison Dean, Frederick Leonard, Allen Cason, 
Jr., John Jackson, Jr., and Frederick Hargraves, were ar­
rested and convicted of unlawful conspiracy after an at­
tempted “ sit-in” demonstration at the Burras and Webber 
Cafeteria in Nashville, Tennessee.

Around noon on October 21, 1962, petitioners, young 
Negro college students, entered the front door of the Bur- 
rus and Webber Cafeteria (R. 96).1 Two swinging doors 
on the sidewalk opened on the vestibule (R. 89), six feet by 
six feet, four inches (R. 271).2 Another set of swinging 
doors led into the dining room (R. 89).

1 The cafeteria had a front entrance and a hack entrance (R. 
124).

2 Estimates of the size of the vestibule varied from four feet by 
four feet (R. 89) to twelve feet by twelve feet (R. 170), but Otis 
Williams, the doorman at the Cafeteria, testified that he measured 
it as six feet by six feet, four inches (R. 270-271).



6

Before the petitioners could go through the second doors, 
the doorman, Otis Williams held them closed and said, 
“Now, we don’t serve colored people in here. I want to be 
nice to you, but we don’t serve ’em . . . and you can’t come 
in” (R. 271).3 Petitioners remained standing in the vesti­
bule for approximately 20 or 25 minutes when they were 
arrested (R. 92, 278).4 5 People were walking in front of the 
cafeteria, and estimates of the number of people who stood 
by or near the outside door of the vestibule varied from 
three or four to seventy-five or one hundred (R. 97, 101, 
113, 126, 178-179, 202, 234). It was not established how 
many, if any, of those standing outside desired to enter the 
B. & W. or were just curious observers. No witness testi­
fied that they were prevented either from entering or leav­
ing the cafeteria (R. 98, 104, 115, 133, 164-166, 179-181, 187, 
197-198, 204, 230, 247, 251). The doorman did testify that 
some customers on the outside left rather than force their 
way through the crowd (R. 278, 281). However, he also ad­
mitted that several did enter the cafeteria (R. 281).

Several patrons of B. & W. testified that if the doorman 
had not been holding the door so that the petitioners could 
not enter, there would have been no congestion (R. 100-101, 
165, 228-229).® Although the doorman and other witnesses

3 Williams, a 64 year old man weighing only 140 pounds, held 
the door and kept petitioners out while allowing white patrons in 
the vestibule to enter the cafeteria, one at a time through a crack 
in the door (R. 271, 280, 281). He stated he was hired to keep 
Negro patrons out (R. 281-282) and was ordered to lock the doors 
if Negroes came (R. 282). When petitioners arrived, Williams 
“ caught the door going into the cafeteria, and stopped them there, 
and the white people, too . . . ” (R. 269).

4 The doorman testified that petitioners were there forty or forty- 
five minutes (R. 272). However, he did indicate that in the excite­
ment he was not able to keep accurate track of the time (R. 278).

5 Charles Edwards stated:
“ Q. If the doorman hadn’t blocked the door, they would 

have gone in the place, so that ingress and egress would have



7

testified that petitioners were “pushing and shoving” in the 
vestibule (E. 168, 169, 214, 278-280),6 their evidence indi­
cated that this was occasioned in part by white patrons 
coming through the crowded vestibule (E. 175-177, 279- 
280). All the witnesses entered the cafeteria, although a 
few spoke of having to “ elbow” or “ push” their way through 
(R. 116-117, 187). Others entered with little difficulty (E. 
109,164).7

One witness testified that as she approached the restau­
rant she heard someone say, “When we get there, just keep 
pushing. Do not stop. Just keep on pushing,” that she 
looked around and saw a group of Negroes who passed her

been free? Wouldn’t it? A. I suppose so, if he had wanted 
Negroes in, too.

Q. Yes, sir, the doorman was blocking them so that they 
couldn’t get in? A. The doorman was holding the door, and 
the Negroes were blocking the vestibule so that people couldn’t 
get in there.

Q. . . . The doorman was the one who was blocking the 
door and keeping people out? . . .  A. He was holding the 
Negroes out, and as a result, they had the vestibule blocked, 
and the other people could not get by” (R. ,100-101).

6 The evidence of the doorman was the strongest against peti­
tioners. He testified that they pushed white persons up against 
the wall and doors (R. 271, 280, 289), that they were acting 
“brutish” (R. 289), and that one tried to force his way in (R. 289- 
290).

7 Mrs. Charles Edwards testified that she “ just went right in” 
(R. 109). Mickey Lee Martin testified:

“ Q. You had no trouble getting in? A. No, sir.
Q. Did you have to ask them to let you in ? A. Sir ?
Q. Did you have to ask these colored people to let you in? 

A. Yes, sir.
Q. And did they let you in? A. Yes, sir, they let me in” 

(R. 164).
Patrolman Pyburn testified that after petitioners were standing 

four on either side of the vestibule “a person medium size could 
get in” (R. 245-246).



on the street and entered the restaurant (R. 210-211, 219-
222).8

W. W. Carrier, Manager of B. & W., testified that in­
formed of petitioners’ presence, he went to the front door 
(R. 89) and “discovered a large gathering of people . . .  on 
the outside, and eight young Negroes were in the vestibule, 
in between the two doors” (R. 89). Carrier did not speak 
to petitioners at that time (R. 91). He called the police and 
went outside to wait for them (R. 92). He testified:

Q. As you attempted to pass through the vestibule, 
what, if anything, occurred? A. TVell, actually noth­
ing, sir. The—the young men were standing in position, 
and it was just a matter of my easing through the 
crowd (R. 92).

Petitioners informed him that they were seeking service 
(R. 94), but Carrier refused because they were Negroes9 
(R. 95). At no time did he directly order petitioners to 
leave.10 Plis sole comment was to request that they move 
back and let a lady get out which petitioners did (R. 93). 
He admitted that persons were able to get in and out of the 
cafeteria (R. 91).

8 See also testimony at R. 223, 225.
9 On cross-examination Carrier stated:

“ Q. You have the facilities to serve them? A. We do have.
Q. Was your place of business crowded at the time? A. It 

was beginning to be crowded, sir.
Q. Now, the only reason that you didn’t serve them was 

because they were Negroes and not white, wasn’t it? A. Yes, 
sir.

Q. And the same boys, seeking service would have been all 
right if they were white ? A. Yes, sir” (R. 95).

10 Carrier testified he did not swear out warrants against peti­
tioners and had no idea how his name appeared oil them as prosecu­
tor (R. 123).



9

The police arrived shortly after 12:20 and arrested peti­
tioners (R. 126, 129). They were charged under a grand 
jury presentment11 (R. 1-5) alleging that they:

[0]n  the 21st day of October, 1962, and prior to the 
finding of this presentment, with force and arms, in 
the County aforesaid, unlawfully, willfully, knowingly, 
deliberately, and intentionally did unite, combine, con­
spire, agree and confederate, between and among them­
selves, to violate Code Section 39-1101-(7) and Code 
Section 62-711, and unlawfully to commit acts injurious 
to the restaurant business, trade and commerce of 
Burrus and Webber Cafeteria, Inc., a corporation, lo­
cated at 226 Sixth Avenue North, Nashville, Davidson 
County, Tennessee (R. 2).

The indictment also alleged that the B. & W. Cafeteria 
had a policy of not admitting Negroes, that this policy was 
carried on under rights established by Tennessee law, that 
there were integrated restaurants in Nashville known to 
petitioners, and that petitioners wilfully and deliberately 
conspired to conduct “ sit-ins” at various white-only restau­
rants in furtherance of the integration movement of which 
they were a part (R. 3-4).

Petitioners were tried together in the County Court of 
Davidson County, Tennessee. After conviction of unlawful 
conspiracy (R. 15) they were sentenced to ninety days in 
jail and fifty dollars fine 12 (R. 16). Appeals were taken to

11 Petitioners were arrested without warrants by Nashville police 
officers and originally charged with violating City Code Chapter 26, 
Section 59 (state law regarding sit-ins) (ft. 160). Later in the 
same day, warrants were issued charging them with unlawful con­
spiracy. The grand jury presentment was made on December 12, 
1962 (R. 1).

12 The jury suggested a fine of less than fifty dollars (R. 313) 
but the judge later imposed the severer sentence.



1 0

the Supreme Court of Tennessee which affirmed the convic­
tions (R. 326) and denied a petition to rehear (R. 329).

Summary o f Argument

I.
The Civil Rights Act of 1964, Title II (Public Accommo­

dations), compels the reversal of these cases and their re­
mand for dismissal, both under the doctrine expounded in 
Bell v. Maryland, 378 U. S. 226, and by virtue of §203(c) of 
the Civil Rights Act of 1964, forbidding “punishment” of 
acts such as those here shown to have been committed. The 
federal and common-law doctrine of abatement of criminal 
prosecutions, on removal of the taint of criminality, here 
applies.

Moreover, it is clear, under the holding in Bell v. Mary­
land, supra, that this case must at least be remanded to the 
state court for consideration of the abating effect of the 
Civil Rights Act under state law, since that Act is part of 
the law of every state.

II.
This case involves the use of state powTer to effect racial 

discrimination, contrary to the equal protection clause of 
the Fourteenth Amendment.

In Tennessee at the time of the prosecutions discrimina­
tion was expressly permitted under statute. Petitioners, 
after attempting to seek service in a white-only cafeteria, 
were prosecuted under a presentment that characterized 
their integration movement as an unlawful conspiracy. 
Thus, the State adopted the posture of supporting and en­
forcing segregationist policies, and, under the rule of Lom­
bard v. Louisiana, 373 U. S. 267, denied petitioners the



11

equal protection of the laws in violation of the Fourteenth 
Amendment.

III.
These convictions deny due process of law in that the 

record is devoid of evidence of the essential elements of the 
crime charged, unlawful conspiracy.

Under Tennessee law, it is necessary to prove both an 
agreement and an overt act in order to convict for con­
spiracy. All the evidence in this case shows, however, is 
that petitioners went to a cafeteria to attempt to obtain 
service, were barred from entrance after they had gone into 
a small vestibule, and that the resulting congestion made it 
inconvenient for other patrons to enter.

The lack of evidence that they agreed or intended to ob­
struct the doorway or to disrupt the cafeteria’s business in 
any way requires that the convictions be reversed, under 
the rule in Garner v. Louisiana, 368 U. S. 157.

IV.

Petitioners were denied due process in that the trial 
judge instructed the jury that they were charged with 
violating a statute when no such charge was in the indict­
ment, and the statute was civil, not criminal.

The Supreme Court of Tennessee admitted that the trial 
judge erred in instructing the jury that petitioners were 
charged with conspiracy to violate a statute that merely 
removed the old common law duty of innkeepers and others 
to serve all patrons. The court, however, dismissed the 
error as insubstantial because there was ample evidence 
for a conviction on the other charges.

However, this court has held that where a jury renders a 
general verdict, as was done here, and the instructions were



1 2

erroneous, particularly as to the statutes under which the 
defendants were charged, the convictions must be reversed 
since it is impossible to tell the effect the error had on the 
jury’s determination. Terminiello v. Chicago, 337 U. S. 1; 
Stromberg v. California, 2S3 U. S. 359.

V.
Petitioners were denied due process by the Supreme 

Court of Tennessee affirming their convictions on a theory 
other than that under which the cases were presented to the 
jury.

The presentment and the judge’s instructions made the 
right of the cafeteria to discriminate a central issue in this 
case, so that an aura of illegality was cast over petitioners’ 
attempt to gain equal service. The Tennessee Supreme 
Court, however, based its decision on the assumption that 
the question of a right to segregate was not present. This 
action violated the rule established in Cole v. Arkansas, 333 
U. S. 196, that a defendant is entitled to have his case de­
cided by a state appellate court on the same basis on which 
it was presented at trial.

VI.
Petitioners were denied a fair and impartial jury con­

trary to due process of law and equal protection of the laws 
secured by the Fourteenth Amendment.

The presentment made the right to operate a segregated 
establishment a central issue in the case. However, the trial 
judge refused petitioners the right to challenge for cause 
veniremen who stated that they believed in the right to 
discriminate. Therefore, the jurymen began prejudiced 
against the petitioners, in violation of the rule stated in 
Aldridge v. United States, 283 U. S. 308.



13

A R G U M E N T

I.
The Enactment o f the Civil Rights Act o f 1964, Sub­

sequent to These Convictions Rut While They Were Still 
Under Direct Review, Makes Necessary Either Their 
Outright Reversal or a Remand to the State Courts for 
Consideration o f That Act.

A. The Civil Rights Act o f  1964  Abates These Prosecutions 
as a Matter o f  Federal Law, and These Cases Should Be 
R eversed  on That Ground.

The federal Civil Rights Act of 1964, 78 Stat. 241, went 
into effect on July 2, 1964. The B. & W. Cafeteria comes 
within the terms of Title II, providing for equal enjoyment 
of public accommodation, since, being open to the general 
public (R. 94) it served or offered to serve interstate trav­
elers.13 Therefore, the petitioners would have had federal 
statutory protection in seeking service if they had acted 
after passage of the act.

13 Civil Rights Act of 1964, Title II, Section 201 . . .
(b) Bach of the following establishments which serves the public 

is a place of public accommodation within the meaning of 
this title if its operations affect commerce, or if discrimina­
tion or segregation by it is supported by State action: . . . 
(2) Any restaurant, cafeteria, lunchroom, lunch counter, 
soda fountain, or other facility principally engaged in sell­
ing food for consumption on the premises,. . .

* * * # * •
(c) The operations of an establishment affect commerce within 

the meaning of this title if (1) it is one of the establish­
ments described in paragraph (1) of subsection (b) ; (2) in 
the case of an establishment described in paragraph (2) of 
subsection (b), it serves or offers to serve interstate travelers 
or a substantial portion of the food which it serves . . . has 
moved in commerce; . . . [Emphasis added].



14

Moreover, Section 203(c) of the Act provides, “No person 
shall . . . (c) pnnish or attempt to punish any person for 
exercising or attempting to exercise any right or privilege 
secured by section 201 or 202.” Assuming, for the moment 
only, that petitioners were prosecuted for attempting to ex­
ercise 201 rights, this section clearly would bar the com­
mencement of any prosecution if the incident here had taken 
place after July 2, 1964. It would also bar prosecutions or 
existing punishments begun before that date, since the sec­
tion bars punishment of rights “ secured” by the Act. In 
other words, the Act does not only create new rights, but 
also protects rights already in existence.

In addition to the wording of section 203(c), these prose­
cutions also should cease under the Federal rule that a 
change in the law, prospectively rendering that conduct in­
nocent which was formerly criminal, abates prosecution on 
charges of having violated the no longer existent law. See 
Bell v. Maryland, 378 U. S. 226, 231, n. 2; United States v. 
Chambers, 291 U. S. 217; United States v. Tynen, 78 U. S. 
(11 Wall.) 88. And under the supremacy clause of the 
Constitution (Article VI, clause 2), a federal statute has 
the same abative effect on a state criminal proceeding.14

Turning to the application of these principles to the case 
at hand, it is clear that the character of the presentment is 
of central importance. If the petitioners had simply been 
prosecuted for disorderly conduct, it would have been diffi­
cult to say that they were being punished for “attempting 
to exercise” rights secured by section 201. However, in the 
presentment the state charged that petitioners knew that 
the B. & W. Cafeteria had a policy of racial segregation 
(R. 3), and that they “unlawfully, willfully, . . .  and in­

14 These are the same arguments made in more detail for peti­
tioners in Hamm v. City of Bock Hill, No. 2, October Term, 1964, 
Brief for petitioners, pp. 18-41.



15

tentionally” united and conspired to conduct “ sit-ins” in 
order to try to compel the owners to serve them on a non- 
segregated basis (E. 3-4).

Thus, in the guise of a prosecution for conspiring to ob­
struct commerce and commit disorderly acts, the state has 
set out to punish petitioners for attempting to gain rights 
protected by the 1964 Act.

For these reasons, these prosecutions must be abated as 
a matter of federal law.

B. The Least Possible C onsequence in This Case, o f  the Rule 
A nnounced in Bell v. Maryland Is Its Rem and to the State 
Court, fo r  Consideration There o f  the E ffect o f  the Enact­
m ent o f  the Federal Civil Rights Act o f  1964 .

In Bell v. Maryland, 378 U. S. 226, decided at the last 
term of this Court, it was held that the enactment of a state 
public accommodations law, subsequent to the commission of 
the alleged offenses but wliile the convictions were still 
under review, made appropriate a remand to the state 
courts, for consideration of the question whether, within 
the framework of the state common and statutory law, such 
intervening enactment destroyed the legal basis for prose­
cution and made dismissal appropriate. This action was 
taken by this Court after careful consideration both of the 
general common law rule and of the Maryland general “ sav­
ing clause,” 1 Md. Code §3 (1957), see Bell v. Maryland, 
supra, 378 U. S. at pp. 230-234, 236, 237.

The federal Civil Eights Act besides being a permanent 
federal law, is a part of the law of each state.

It must always he borne in mind that the Constitu­
tion, laws and treaties of the United States are as much 
a part of the law of every state as its own local laws and 
Constitution. This is a fundamental principle in our 
system of complex national polity. See also Shanks v.



16

Dupont, 3 Pet., 242; Poster v. Neilson, 2 Pet., 253; 
Cherokee Tobacco, 11 Wall., 616; Mr. Pinkney’s Speech, 
3 Elliot’s Const. Deb. 231; People v. Gierke, 5 Cal., 381. 
(.Hau&nstem v. Lyriham, 100 II. S. 483, 490.)

For the narrower application of the Bell holding the 
position, therefore, must be taken to be the same as it would 
be if Tennessee had, while these prosecutions were pend­
ing, enacted laws exactly equivalent, in tenor and effect, to 
the federal Civil Eights Act.

Tennessee has a general “ saving clause” statute, Tenn. 
Code Ann. $1-301:

The repeal of a statute does not affect any right 
which accrued, any duty imposed, any penalty incurred, 
nor any proceeding commenced, under or by virtue of 
the statute repealed.

The application of this statute to the saving of these 
prosecutions is even more dubious than that of the Mary­
land statute, Bell v. Maryland, supra, for the Tennessee 
statute speaks only of “repeal,” where the Maryland statute 
speaks of “amendment” as well, see Bell v. Maryland, supra, 
278 U. S. 226 at pp. 234-5, and the operation of a public 
accommodations statute, forbidding racial discrimination, 
upon a general trespass law, more nearly resembles “ amend­
ment” than “ repeal,” though (as the Court points out in 
Bell) neither word may be apt.

As to this case, therefore (even on the assumption, which 
is contrary to fact, see Point I-A supra, that the abating 
effect of the Civil Rights Act is to be taken to be solely a 
state-law question), the least effect of Bell must be reversal 
and remand for consideration of the question whether the 
Civil Eights Act, in its section quoted above, has the effect 
of abating these prosecutions.



17

II.

Petitioners’ Convictions Enforced Racial Discrimina­
tion in Violation o f the Fourteenth Amendment to the 
Constitution o f the United States.

If it could be assumed (as apparently it was by the 
Supreme Court of Tennessee) that this case involved simply 
prosecutions for conspiracy to commit an act injurious to 
commerce under §39-1101 and conspiracy to commit turbu­
lent or riotous conduct under §62-711, then the main ques­
tion would be the sufficiency of the evidence supporting 
those charges (See Part III, infra). However, by the way 
it framed the presentment, the State has put itself in the 
posture of directly enforcing racial discrimination.

The presentment recited at some length that the owners 
of the B. & W. Cafeteria had a rule that they would serve 
only white customers, and that this policy was allowed 
under the provisions of the Tennessee Code (R. 2-3). It 
charged that petitioners knew of this practice, and deliber­
ately embarked on a program of “ sit-ins” for the purpose 
of forcing owners to integrate their restaurants (R. 3, 4). 
The participation in this integration movement was char­
acterized as an “unlawful conspiracy,” and the disturbance 
involved in this case was termed “ an overt act” {Ibid.).

Thus, the emphasis of a case that could have been pre­
sented simply as one of a group of persons obstructing a 
doorway, was shifted radically to one of enforcement of 
racial discrimination. The jury must have believed that the 
case involved the maintenance of a segregated establish­
ment, and they must have regarded themselves as the en­
forcers of the B. & W.’s policies. Moreover, the judge’s 
charge could only have reinforced this belief; he read the 
presentment and the text of the statute giving the B. & \V. 
the right to discriminate, and told the jury that petitioners



18

were charged with conspiracy to violate that statute (i.e., 
to violate the owner’s right to run a segregated cafeteria).

Since the State, through its agents, the prosecutor, grand 
jury, and judge, decided to frame the ease as to involve 
itself in the enforcement of the segregationist policies of 
the B. & W., it cannot now claim that all that was involved 
was a simple prosecution for conspiracy to commit dis­
orderly conduct. This case, therefore, is analogous to 
Lombard v. Louisiana, 373 U. S. 267, where there was also 
no ordinance or state law specifically requiring segregation. 
Sufficient state involvement was found in pronouncements 
by city officials that “ sit-ins” would not be allowed, followed 
by prosecutions for trespass. Here, there was a statute 
clearly designed to allow segregation, since it abrogated 
the long established common law rule that prohibited dis­
crimination in certain businesses. And although there was 
no action before the arrests, as there was in Lombard, the 
prosecutor and grand jury did act as enforcers of private 
discrimination by making the maintenance of segregated 
facilities a main issue in the case. In so doing, the state 
denied petitioners the equal protection of the laws in vio­
lation of the Fourteenth Amendment.

In addition, the convictions here must fall under the rule 
of Shelley v. Kraemer, 334 U. S. 1. Tennessee has a statute, 
§62-710, which is specifically designed to permit racial dis­
crimination. The State, moreover, has used its prosecutor 
and its courts to actively enforce the permitted custom of 
segregation. As Shelley made clear, such employment of 
any branch of the state is a violation of the equal protection 
clause of the Fourteenth Amendment. The action of peti­
tioners was like that of other “ sit-in” demonstrators, and 
the state may not evade the duty imposed by Shelley simply 
by characterizing the prosecution as one for conspiracy to 
commit a disorderly act or to interfere with commerce.



19

III.
Petitioners’ Convictions Deny Due Process o f Law Be­

cause They Are Based on No Evidence o f the Essential 
Elements o f the Crime o f Unlawful Conspiracy.

The presentment under which petitioners were charged 
alleged that they:

. . . with force and arms, unlawfully, willfully, know­
ingly, deliberately, and intentionally, did unite, com­
bine, conspire, agree and confederate between and 
among themselves, to violate Code Section 39-1101(7) 
and Code Section 62-711, and unlawfully to commit 
acts injurious to the restaurant business, trade or com­
merce of Burrus and Webber . . .  (R. 2).

In its opinion the Supreme Court of Tennessee stated:
Section 39-1101, T. C. A., makes it a misdemeanor 

for two or more persons to conspire to do an unlawful 
act. In order for the offense to be indictable, it must 
be committed manu forti—in a manner which amounts 
to a breach of the peace or in a manner which would 
necessarily lead to a breach of the peace (R. 318).

The court further stated that:
. . . [Conspiracy may be inferred from the nature 

of the acts done, the relation of the parties, the interest 
of the alleged conspirators, and other circumstances; 
and that such a conspiracy consists of a combination 
between two or more persons for the purpose of ac­
complishing a criminal or unlawful act, or an object, 
which although not criminal or unlawful in itself, is 
pursued by unlawful means, or the combination of two 
or more persons to do something unlawful, either as a 
means or as an ultimate end (R. 319).



2 0

Under Tennessee law, as under that of most jurisdic­
tions, the elements of a conspiracy are an agreement be­
tween two or more persons to commit an unlawful act, and 
the commission of some overt act in furtherance of the 
plan.15 In this case there would be two possible unlawful 
acts that the petitioners agreed to do: first, to seek service 
at a white-only cafeteria; and second, to obstruct passage 
into the cafeteria by jamming the vestibule.

Since the Supreme Court of Tennessee acknowledged that 
an agreement to try to integrate a cafeteria could not be 
an unlawful conspiracy (R. 322), the State had to produce 
evidence of an agreement to try to force service by illegal 
means, viz., the deliberate obstruction of the entrance way.16 
This burden, however, was not met. The only direct evi­
dence of a conspiracy was the testimony of two witnesses 
that they heard one of the petitioners say, as the group 
approached the B. & W., that when they got there or when 
they started in, they should keep going, keep pushing, and 
not stop (R. 210-211, 219-222, 223, 225).

Even assuming that the other members of the group 
agreed to this course of action, the statement is still no 
evidence of a conspiracy to obstruct or interfere with the 
cafeteria entrance. The statement can only mean that 
petitioners had decided to enter the cafeteria even though 
some attempt might be made, whether by the management

15 For construction of the Tennessee conspiracy statute see: 
Delaney v. State, 164 Tenn. 432, 51 S. W. 2d 485 (1932) (Persons 
must unite and agree to pursue an unlawful enterprise) ; Cline v. 
State, 204 Tenn. 251, 319 S. W. 2d 227 (1958) (gist of conspiracy 
is agreement to effect unlawful end, but, before offense is complete, 
party to conspiracy must commit some “overt act” ) .

16 The mere showing that a disorder took place, or even that peti­
tioners might have been guilty of disorderly conduct would not be 
enough, since conspiracy was charged. Cole v. Arkansas, 333 IT. S. 
196.



2 1

or white customers, to deter them. In other words, the 
statements show a resolution to seek service and use the 
cafeteria facilities, and give no support to any intention to 
obstruct their use by any other customers.

Under Tennessee law conspiracy may also be inferred by 
circumstantial evidence; however, for such an inference to 
be drawn, the standard of sufficiency of evidence applicable 
in Garner v. Louisiana, 368 U. S. 157, must be met. The 
testimony at trial here does not support the conclusion that 
petitioners had agreed to obstruct the entrance or do any 
other disorderly act.

In the first place, the doorway was not in fact blocked to 
the extent that no one could enter; witnesses testified either 
that they were able to make their own way through the 
crowd (R. 91, 92, 109, 245-246, 251), or that petitioners 
stepped aside when asked (R. 93,164). Indeed, the evidence 
is clear that what actually caused obstruction and crowding 
in the vestibule was the fact that the doorman would not 
let the petitioners in; the testimony of a number of wit­
nesses showed that if he had opened the door there would 
have been no difficulty (R. 100-101, 165, 228-229, 281).

Morover, no witness testified that petitioners committed 
any disorderly act or acts which constituted a breach of 
the peace, or that violence occurred or was even threatened. 
They used no bad language (R. 226) and did not force 
themselves past the doorman who held the door, something 
they could easily have done, considering his size and weight 
(R. 276). Petitioners were not “ugly” or “disrespectful” 
but were, as one witness testified, “ just there” (R. 108-109). 
Although they were told “we don’t serve colored people in 
here” and “you can’t come in,” no one asked them to leave 
the vestibule, where they remained until they were ar­
rested.



2 2

Two witnesses testified that petitioners were “pushing” 
and “ shoving” (R. 168, 214). However, it was not estab­
lished whether this pushing and shoving resulted from the 
natural congestion in the vestibule caused by the doorman’s 
blocking the door or by petitioners’ actions alone. More­
over, a few white patrons stated that they “pushed” inside 
the vestibule. One man testified that he “kind a pushed” 
his way in (R. 136) and another testified that he “push[ed] 
my way through with my boy . . .  I did a little pushing” 
(R. 187).

Not only, therefore, was there no evidence that petitioners 
conspired to commit an unlawful act, the record solidly 
refutes the Supreme Court of Tennessee’s conclusion that 
the means employed were unlawful.

This case is not materially different from the ordinary 
“ sit-in” cases, where Negroes have been convicted for tres­
pass after remaining at lunch counters when requested to 
leave by restaurant owners, solely because of race. No 
constitutional difference exists between sitting quietly on 
a lunch stool and standing quietly in a vestibule to protest 
racial discriminaton. This court has found no problem in 
reversing “ sit-in” convictions based on no more evidence 
than the Negroes’ “mere presence” at white restaurants. 
Garner v. Louisiana, 368 U. S. 157. Here as in Garner, the 
petitioners were not ordered to leave by the restaurateur 
or his employees.

It has been recognized that a Negro sitting at a lunch 
counter in a southern state to protest racial segregation is 
engaged in a type of expression protected by the Four­
teenth Amendment. Garner v. Louisiana, supra (Mr. Jus­
tice Harlan, concurring). If, therefore, petitioners’ con­
duct is construed to constitute an unlawful conspiracy, 
then the statute under which they were charged and con­
victed is unconstitutionally vague in that it failed to warn



23

petitioners that it was unlawful to quietly remain in a 
cafeteria vestibule and because, if so construed, it limits 
petitioners’ right of free expression. Garner v. Louisiana, 
supra; Cantwell v. Connecticut, 310 U. S. 296; Winters v. 
New York, 333 IT. S. 507, 509.

In summation then, the evidence shows only that: peti­
tioners agreed to go to the B. & W. Cafeteria to attempt to 
secure non-segregated service there; when they arrived 
their entrance was blocked by the doorman (there was no 
evidence that they should have expected this to happen); 
during the time they were trying to get in the resulting 
congestion made it inconvenient for white patrons to enter 
or leave, although none was prevented from doing so; this 
situation existed for only a brief time, 20 or 25 minutes, 
until the police arrived; petitioners co-operated fully with 
the officers, both in standing on both sides of the vestibule 
and in leaving. The record is totally devoid of any evidence 
indicating that they either had agreed to obstruct the door­
way beforehand or even that they wanted or tried to after 
they arrived.

Because there is no evidence to support the charges of 
unlawful conspiracy, the convictions deny petitioners due 
process of law. Thompson v. Louisville, 362 TJ. S. 199; 
Garner v. Louisiana, 368 U. S. 157.



24

IV.
Petitioners Were Denied Due Process in Violation o f 

the Fourteenth Amendment When the Trial Judge In­
structed the Jury That Petitioners Were Charged With 
Violation o f a Statute When (a ) Petitioners Had Not 
in Fact Been Indicted for Violation o f the Statute and 
(b ) It Was Not Even a Criminal Statute.

Petitioners were indicted for unlawfully conspiring to 
violate Sections 39-1101(7) (act injurious to commerce) and 
62-711 (riotous conduct) of the Code of Tennessee. After 
reading the presentment to the jury, the judge read them 
the texts of not only the two above sections hut also that 
of Section 62-710 (R. 298). This section abrogates the rule 
of the common law imposing a duty on innkeepers, etc., to 
serve all persons, and allows them to exclude anyone for 
any reason. He then, on three occasions, told the jury that 
petitioners were charged with conspiracy to violate not only 
Sections 39-1101(7) and 62-711, bnt also Section 62-710.17

17 The trial judge told the jury (R. 299) :
You will note from the language of the presentment that 

the defendants are charged with the offense of unlawful con­
spiracy to violate Code Section 39-1101(7), Code Sections 
62-710 and 62-711, in that they did unlawfully commit acts 
injurious to the restaurant business, trade and commerce of 
Burrus & Webber Cafeteria, Inc., a corporation, located at 
226 6th Avenue North, Nashville, Davidson County, Tennessee.

And also at (R. 302-303) he said:
. . .  I f you find and believe beyond a reasonable doubt that 

the said defendants unlawfully, wilfully, knowingly, deliber­
ately, and intentionally did unite, combine, conspire, agree 
and confederate between and among themselves, to violate 
Tennessee Code Section 39-1101-(7) and Code Sections 62-710 
and 62-711, and unlawfully to commit acts injurious to the 
restaurant business, trade and commerce of Burrus and 
Webber Cafeteria, Inc., a corporation, located at 226 6th 
Avenue North, Nashville, Davidson County, Tennessee, as



Petitioners’ motion for a new trial, urging this as a denial 
of due process, was overruled (E. 18-19, 27).

It is clear that §62-710 itself could not form the basis for 
a criminal charge of any sort. It merely changes a rule of 
the common law and is not a penal statute. Moreover, the 
state could not punish someone for conspiring to violate 
the section, since the section imposes no duties. It merely 
says that innkeepers may refuse to serve, if they choose; it 
says nothing about other persons seeking service, even 
from a reluctant owner. Indeed, the Supreme Court of 
Tennessee acknowledged that the statute was civil and the 
judge’s charge was error (R. 321).

The instruction to the jury that they could convict peti­
tioners on a charge not capable of being made, clearly vio­
lated petitioners’ right to due process of law. In Stromberg 
v. California, 283 U. S. 359, a conviction based on a general 
verdict under a state statute was set aside because one part 
of a statute submitted to the jury was unconstitutional. In 
Terminiello v. Chicago, 337 U. S. 1, the court in instructing 
the jury about a city ordinance did so on a theory which 
permitted conviction on an unconstitutional basis.

In addition, even if §62-710 might form the basis of a 
criminal charge, it could not be used in this case since the 
presentment was not brought under it.18 It is clear that a

charged in the presentment, then it would be your duty to 
convict the defendants; provided, that they, or one of them, 
did, in pursuance of said agreement, or conspiracy, do some 
overt- act to effect the object of the agreement; that is, if you 
find that said agreements and acts in the furtherance of said 
objective were done in Davidson County, Tennessee.

See also, R. 305.
18 The presentment mentions §62-710 but the petitioners were 

specifically charged under §§39-1101(7) and 62-711 (R. 2). As 
will be discussed infra, however, the presentment does add to the 
confusion resulting from the judge’s charges.



26

defendant may not be convicted for one offense after hav­
ing been indicted for another. DeJonge v. Oregon, 299 U. 8. 
353. Cf., Cole v. Arkansas, 333 U. S. 196; Shuttlesworth v. 
City of Birmingham, 376 U. S. 339.

The Supreme Court of Tennessee rejected these argu­
ments, saying that the charge, even though error, could not 
have been harmful since there was ample evidence to con­
vict the defendants of the offenses defined in the other code 
sections (E. 321). However, this conclusion overlooked the 
nature of the case and the presentment involved. The 
jury’s verdict was a general one, viz., “ guilty of unlawful 
conspiracy” (E. 15). It is impossible from this to ascer­
tain what the jury believed petitioners were guilty of con­
spiring to do. The presentment itself referred to §62-710 
and described at some length the practices of the B. & W. 
Cafeteria in excluding Negroes; it also stated that the 
owners of the B. & W. had the right to discriminate under 
Tennessee law (E. 3). The presentment recited that the 
petitioners were engaged in “a movement to coerce, compel, 
and to intimidate owners of restaurants . . . and cafeterias 
serving only white persons to ‘integrate’ ” against the 
policy established by virtue of §62-710 (E. 3, 4).

Thus, from the presentment alone the jury could have 
been confused and under the impression that petitioners, by 
the mere act of attempting to integrate against the wishes 
of the B. & W., were committing an unlawful act. Such an 
impression could only have been affirmed by the judge’s in­
struction, which specifically stated that petitioners were 
charged with conspiring to violate the section giving the 
B. & W. the right to discriminate. Since the jury’s verdict 
does not indicate what in fact was the basis for its decision, 
the possible prejudicial effect of the judge’s charge cannot 
be ignored. Stromberg v. California, 283 U. S. 359; Termi-



27

niello v. Chicago, 337 U. S. 4. C l, Hamilton v. Alabama, 
368 U. S. 52; G'ofe v. Arkansas, 333 IT. S. 196.

The State Supreme Court’s statement that “ there were 
no questions raised following the charge about the pro­
priety of reading it [§62-710]” misses the mark on several 
counts. First, the petitioners sought and were refused an 
instruction, contrary to the one given, to the effect that 
notwithstanding §62-710, the restaurant had no right to 
exclude them (R. 310). Secondly, they did object, by motion 
for new trial, to the reading of this statute (R. 18-19). 
Thirdly, they also objected, on due process grounds, to the 
trial judge’s misstatement of the offense charged in the 
motion for new trial (E. 19). Finally the stated ground of 
decision below was “harmless error” and not any theory 
that the objection was not timely. In any event there were 
no objections made to the instructions given in Stromberg 
supra, and Terminiello, supra.

v .
Petitioners Were Denied Due Process in That Their 

Convictions Were Affirmed on a Ground Not Litigated 
in the Trial Court.

The petitioners wTere tried and convicted under a grand 
jury presentment which was drawn on the theory that the 
B. & W. Cafeteria was legally entitled under Tennessee law 
(§62-710) to exclude petitioners because of their race 
(R. 2-3). The trial judge read the presentment and also 
§62-710 to the jury (R. 292-295; 298), and refused a re­
quested instruction that the cafeteria had no legal right to 
exclude persons because of race (R. 310). Moreover, be­
cause the judge instructed the jury that petitioners were 
charged with conspiracy to violate §62-710 (i.e., to violate 
the cafeteria’s right to discriminate), the jury must have 
considered that a right to segregate was a central issue.



However, the Tennessee Supreme Court decided the case 
on the assumption “ for the sake of argument that discrimi­
nation based on race by a facility such as this cafeteria 
does violate the due process and equal protection clauses” 
(R. 318-319). The court asserted that the only question, 
given this assumption, was whether the method that peti­
tioners adopted was illegal (R. 319). The Supreme Court 
of Tennessee disposed of the claimed trial error in refusing 
an instruction that the cafeteria had no legal right to re­
fuse service on the basis of race by saying (R. 322):

As we have heretofore said, this question is not the 
issue in this case, and was not the basis of the indict­
ment and conviction. Even if we assume that the owner 
of the cafeteria had no right to exclude these defen­
dants, this does not excuse their conduct in blocking 
this narrow passageway.

However, the case was submitted to the jury on the 
theory that the petitioners had lawfully been excluded from 
the B. & W. Cafeteria because of their race. Thus, the 
affirmance of the conviction was on a theory that did not 
take into account the issue that was inextricably bound into 
the presentment and the charge to the jury.

It is obvious that the jury might have found the peti­
tioners not guilty if it had been instructed that the B. & W. 
Cafeteria had no legal right to exclude petitioners because 
of race, and that it violated their rights when it did so. 
Moreover, the jury was not instructed to consider the issue 
which the State Supreme Court did decide, i.e., assuming 
petitioners had a right to enter the cafeteria, was their 
method of seeking to vindicate that right unlawful.

Since the basis for affirming the convictions was not the 
same as that under which the convictions wrere rendered,



29

the decision of the Tennessee Supreme Court must be re­
versed under the holding of Cole v. Arkansas, 333 U. S. 196, 
202:

To conform to due process of law, petitioners were 
entitled to have the validity of their convictions ap­
praised on consideration of the case as it was tried and 
as the issues were determined in the trial court.

VI.

Petitioners Were Denied a Fair and Impartially Con­
stituted Jury Contrary to Due Process of Law and. Equal 
Protection of the Laws Secured by the Fourteenth 
Amendment to the United States Constitution.

Almost without exception, the white veniremen, includ­
ing some of the twelve persons who tried and convicted 
(petitioners, upon extensive examination by petitioners’ 
counsel during voir dire, admitted a firm and life-long prac­
tice, custom, philosophy and belief in racial segregation 
(R. 32-39, 44-46). Most of the veniremen expressed belief 
that a restaurant owner had a right to exclude anybody, in­
cluding Negroes, from his place of business.

Despite this fact, the trial judge in a number of instances 
overruled petitioners’ challenges for good cause and held 
certain white jurors competent (R. 38, 46, 68, 80, 85-86). 
For instance, Herbert Amic was held competent by the 
trial court over petitioners’ challenge after testifying:

Q. But you think that a business open to the public- 
should be allowed to exclude Negroes? A. If they so 
desire, yes.

Q. A restaurant business, then specifically,—in par­
ticular? And having that opinion wherein the indict­
ment in this case charges that the B. & W. Cafeteria



30

had had such a rale, and that these defendants went 
there and sought service, knowing that the B. & W. had 
such a rule and then you would start out with a prej­
udiced attitude toward these defendants? A. Well, 
I would—

Q. By reason of your belief? A. I would believe the 
B. & W. would be right in this case on their position.

Q. And you would start—what I am saying, though, 
is you would start out in this case with a prejudiced 
attitude toward the defendants, wouldn’t you? A. In 
this particular case, I imagine I would (R. 56-57).19

Similarly, the trial court held competent other jurors, 
over petitioners’ objections for cause, who testified that 
their entire lives and all their personal associations had 
been on a segregated basis without any contact with Ne­
groes on a basis of equality (R. 78-80, 84-85).

In the case at bar, where the very issue to be tried was 
the right of a restaurateur to exclude persons on the basis 
of race, the trial judge’s failure to exclude these jurors with 
admittedly preconceived notions against Negroes and in 
favor of B. & W.’s practice of racial segregation, was highly 
prejudicial and denied petitioners’ right to trial by a fair 
and impartial jury.

This Court has repeatedly recognized that “ the American 
tradition of trial by jury, considered in connection with 
either criminal or civil proceedings, necessarily contem­
plates an impartial jury drawn from a cross-section of the

19 Mr. Amic did testify later that he was not prejudiced against 
Negroes as such (R. 61), and that he could render a fair and im­
partial verdict (R. 61-62). However, the real question is not 
whether he was prejudiced against Negroes, but whether his opinion 
on an element in the case made crucial by the way the presentment 
was framed would make a fully impartial judgment unlikely.



31

community.” Thiel v. Southern Pacific Co., 328 U. S. 217, 
220; Smith v. Texas, 311 U. S. 128, 130; Glasser v. United 
States, 315 U. S. 60, 85. This Court has also recognized 
that racial prejudice is a valid ground for disqualification 
of a juror; in Aldridge v. United States, 283 U. S. 308, 
it was said:

. . . [T]he question is not as to the civil privileges of 
the Negro, or as to the dominant sentiment of the com­
munity and the general absence of any disqualifying 
prejudice, but as to the bias of the particular jurors 
who are to try the accused. If in fact, sharing the gen­
eral sentiment . . . one of them was shown to entertain 
a prejudice which would preclude his rendering a fair 
verdict, a gross injustice would be perpetrated in al­
lowing him to sit (283 U. S. at 314).

It is clear that the jurors described above and declared 
competent by the trial court were incapable, by virtue of 
their segregationist beliefs, to render petitioners a fair and 
impartial verdict and that their presence as jurors preju­
diced petitioners’ right to an unbiased trial. Such action 
denied due process as well as equal protection of the laws. 
The test established in Aldridge, supra, is more than met 
here.



32

CONCLUSION

W herefore, for the foregoing reasons, it is respectfully 
submitted that the judgment below should be reversed.

Respectfully submitted,

Jack Greenberg 
Constance B aker Motley 
J ames M. Nabrit, III 

10 Columbus Circle 
New York, New York 10019

A von N. W illiams 
Z. A lexander L ooby

McClellan-Looby Building 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioners

Charles S. R alston 
of Counsel



APPENDIX

Civil Rights Act of 1964  
Title II



Pub. Law 88-352 78 STAT. 243.July 2. 1964

T I T L E  I I — I N J U N C T I V E  R E L I E F  A G A I N S T  D I S C R I M I N A ­
T I O N  I N  P L A C E S  O F  P U B L I C  A C C O M M O D A T IO N

S e c . 2 0 1 . (a )  A l l  persons shall be entitled  to  the fu ll  and equal 
en joym en t o f  the g ood s, services, facilities , p riv ileges, advantages, 
and accom m odations o f  any p lace o f  p u b lic  accom m odation , as d e­
fined in th is section, without, d iscrim ination  o r  segregation  on  the 
g rou n d  o f  race, co lor, re lig ion , o r  national orig in .

(b )  E a ch  o f  the fo llo w in g  establishm ents w hich  serves the pu b lic  
is a p lace  o f  p u b lic  accom m odation  w ith in  the m eaning o f  th is title 
i f  its operations affect com m erce, o r  i f  d iscrim ination  o r  segregation  
by  it is su pported  by  State action  :

(1 )  any inn , hotel, m otel, o r  other establishm ent w hich  p r o ­
v ides lo d g in g  to  transient guests,- other than an establishm ent 
located  w ith in  a b u ild in g  w hich  contains not m ore than five 
room s fo r  rent o r  h ire  and w hich  is actually  occu p ied  b y  the 
p rop rie tor  o f  such establishm ent as his residence;

(2 )  any restaurant, cafeteria , lunchroom , lunch counter, soda 
fou nta in , o r  oth er fa c ility  p r in cip a lly  engaged in selling fo o d  fo r  
consum ption  on  the prem ises, in clud ing , but not lim ited to, any 
such fa c ility  located  on the prem ises o f  any retail establishm ent; 
o r  any  gasoline s ta tion ;

(3 )  an jr m otion  picture house, theater, concert hall, sports 
arena, stadium  or  oth er p lace o f  exh ib ition  o r  en terta inm ent; and

(4 ) any  establishm ent ( A ) ( i )  w hich  is p h ys ica lly  located 
w ith in  the prem ises o f  any establishm ent otherw ise covered  by  
th is subsection, o r  ( i i )  w ith in  the prem ises o f  w hich  is p h ysica lly  
located any such covered  establishm ent, and ( B )  w hich  holds 
itse lf  out as serv ing  patrons o f  such covered  establishm ent.

( c )  T h e  operations o f  an establishm ent affect com m erce w ith in  the 
m eaning o f  this title  i f  (1 )  it is one o f  the establishm ents described in 
p a ra grap h  (1 )  o f  subsection ( b ) ; (2 )  in the case o f  an establishm ent 
described in p aragraph  (2 )  o f  subsection ( b ) ,  it serves or offers to 
serve interstate travelers o r  a substantial p ortion  o f  the fo o d  w hich  it 
serves, o r  gasoline o r  other products w hich  it sells, has m oved in 
com m erce ; (3 )  in the case o f  an establishm ent described in paragraph  
(3 )  o f  subsection ( b ) ,  it custom arily  presents film s, perform ances, ath ­
letic team s, exh ib itions, o r  other sources o f  entertainm ent w hich  m ove 
in  com m erce ; and (4 )  in  the case o f  an establishm ent described in 
p aragraph  (4 )  o f  subsection ( b ) ,  it is p h ys ica lly  located w ith in  the 
prem ises o f ,  o r  there is p h ys ica lly  located w ith in  its prem ises, an 
establishm ent the operations o f  w hich  affect com m erce w ith in  the 
m eaning o f  this subsection. F o r  p u r <oses o f  this section, “ com m erce”  
m eans travel, trade, traffic, com m erce, transportation , o r  com m unica­
tion  am ong the several States, o r  between the D istrict o f  C olum bia  and 
any State, o r  between any fo re ig n  coun try  o r  any territory  or p os ­
session and any State o r  the D istrict o f  C olum bia , o r  between points 
in  the same State but th rough  any other State o r  the D istrict o f  
C olum bia  o r  a fo re ig n  country.

(d )  D iscrim in ation  o r  segregation  b y  an establishm ent is sup­
p orted  by  State action w ith in  the m eaning o f  this title  i f  such d is­
crim ination  o r  segregation  (1 )  is carried  on  under co lo r  o f  any law , 
statute, ord inance, o r  regu la tion ; o r  (2 )  is carried  on under co lo r  o f  
any custom  or  usage required o r  en forced  b y  officials o f  the State or 
p o lit ica l subd ivision  th e re o f; o r  (3 )  is required by  action  o f  the 
State o r  p o litica l subdivision  thereof.

(e) The provisions of this title shall not apply to a private club 
or other establishment not in fact open to the public, except to the 
extent that the facilities of such establishment are made available

Equal a c c e ss .

Establishments 
a ffe c tin g  in ­
te rs ta te  com­
merce.

Lodgings•

Restaurants, e tc .

Theaters, s ta ­
diums, e tc . 
Other covered 
establishm ents•

Operations a f ­
fe c tin g  com­
merce c r i t e r ia .

’ ’ Commerce,”

Support by State  
a c tio n .

Private esta b lish ­
ments.



Pub, Law 88-352
78 STAT. 244»

July 2, 1964

E ntitlem en t,

In ter feren ce .

R estraining  
orders, e tc .

Attorneys1
f e e s .

N o tific a tio n  
of S ta te .

Community Re­
la tio n s Serv­
ic e .

Hearings and 
in v e stig a tio n s•

to  tlie custom ers o r  patrons o f  an establishm ent w ith in  the scope o f  
subsection  (b ) .

Sec. 202. A l l  persons shall be  en titled  to  be free , at any establish­
m ent o r  p lace , fr o m  d iscrim ination  o r  segregation  o f  any k in d  on 
the g rou n d  o f  race, co lo r , re lig ion , o r  n ationa l o r ig in , i f  such  d iscrim ­
ination  o r  segregation  is o r  p u rp orts to  be requ ired by  -any law , 
statute, ord inance, regu lation , rule, o r  ord er  o f  a State o r  any agency 
o r  p o litica l subdivision  thereof.

Sec. 203. No person shall (a) withhold, deny, or attempt to with­
hold or deny, or deprive or attempt to deprive, any person of any 
right or privilege secured by section 201 or 202, or (b) intimidate, 
threaten, or coerce, or attempt to intimidate, threaten, or coerce any 
person with the purpose of interfering with any right or privilege 
secured by section 201 or 202, or (c) punish or attempt to punish 
any person for exercising or attempting to exercise any right or 
privilege secured by section 201 or 202.

Sec. 204. (a )  W h enever any person  has engaged  o r  there are 
reasonable grou nd s to  believe that any person  is about to  engage 
in  any act o r  practice/ p roh ib ited  b y  section  203, a civ il action  fo r  
preventive re lie f, in clu d in g  an ap p lica tion  fo r  a perm anent o r  tem ­
p orary  in ju n ction , restra in in g  order, o r  other order, m ay be 
instituted by  the person  agg riev ed  and, upon tim ely  ap p lication , the 
court m ay, in its d iscretion , perm it the A ttorn ey  G eneral to  intervene 
in such c iv il action  i f  he certifies that, the case is o f  general pu b lic  
im portance. I Tpon  ap p lica tion  b y  the com pla in an t and in such c ir ­
cum stances as the court m ay  deem  just, the court, m ay  appoin t an 
attorney fo r  such com pla in an t and m ay authorize the com m encem ent 
o f  the civ il action  w ith ou t the paym ent o f  fees, costs, o r  security.

(b )  In  any action  com m enced pursuant to  th is title , the court, in 
its d iscretion , m ay allow  the p reva ilin g  party , other than the L n ite d  
States, a reasonable attorney ’s fee  as part o f  the costs, and the I  nited 
States shall be liable fo r  costs the same as a p rivate  person. _

( c )  In  the case o f  an alleged  act o r  p ractice  p roh ib ited  by  this title 
w hich  occu rs in a State, o r  p o litica l subdivision  o f  a State, w hich  has 
a State o r  loca l law  p roh ib it in g  such act o r  practice  and establishing 
o r  au th orizin g  a State o r  loca l au th ority  to grant o r  seek re lie f from  
such practice  o r  to  institute crim inal proceed ings w ith  respect thereto 
u pon  receiv in g  n otice th ereof, no c iv il action  m ay be brou gh t undei 
subsection (a )  b e fo re  the exp iration  o f  th irty  days a fte r  w ritten 
n otice  o f  such alleged  act o r  practice  has been g iven  to  the ap propria te  
S tate  o r  loca l au th ority  b y  registered m ail o r  in  person , p p m d e d  that 
the court m ay stay proceed ings in such c iv il action  pen d in g  the 
term ination  o f  State o r  loca l en forcem ent proceedings.

(d )  In  the case o f  an alleged act o r  p ractice  proh ib ited  by this 
title  w h ich  occu rs in a State, o r  p o litica l subd ivision  o f  a State, w hich  
has n o State o r  local la w  p roh ib it in g  such act o r  p ractice , a c iv il action 
m ay be brou gh t under subsection (a )  : Provided, T h at the court m ay 
re fe r  the m atter to  the C om m unity  R elations S erv ice  established by 
title  X  o f  th is A c t  fo r  as lo n g  as the court believes there is a reasonable 
p ossib ility  o f  ob ta in in g  v o lun tary  com pliance, but. fo r  not m ore than 
s ixty  d a y s : Provided further, T h a t u pon  exp iration  o f  such  s ix ty -d a y  
p eriod , the court m ay extend such p eriod  fo r  an ad d itiona l period , not 
to  exceed a cum ulative total o f  one hundred and tw enty  days, i f  it, 
believes there then exists a reasonable p ossib ility  o f  securing  voluntary
com plian ce. , „ ,,  . ,. ,. ,

Sec. 205. The Service is authorized to make a full investigation of 
any complaint referred to it by the court under section 204(d) and 
may hold such hearings with respect thereto as may be necessary.



July 2, 1964

T he S erv ice  shall conduct any hearings w ith  respect to  any such com ­
p la int in  executive session, and shall n ot release any testim ony g iven  
therein except by  agreem ent o f  a ll parties in vo lved  in  the com pla in t 
w ith  the perm ission  o f  the court, and the S erv ice  shall endeavor to  
brin g  about a volun tary  settlem ent between the parties.

S e c . 206. (a )  W henever the A ttorn ey  G eneral has reasonable cause Suits by A tto r -  
to believe that any person  o r  g rou p  o f  persons is engaged  in a pattern  ne7 General, 
or practice  o f  resistance to  the fu ll  en joym en t o f  any o f  th e righ ts 
secured b y  th is title, and that the pattern  o r  practice  is o f  such a 
nature and is intended to deny the fu ll exercise o f  the righ ts herein 
described, the A ttorn ey  G eneral m ay b r in g  a c iv il action  in  the a p p ro ­
priate d istrict court o f  the U n ited  States b y  filin g  w ith  it  a com pla in t
(1 ) signed by  h im  (o r  in h is absence the A c t in g  A ttorn ey  G en era l),
(2 ) setting fo r th  facts  perta in in g  to  such pattern  o r  practice , and
(3 ) requesting such preventive re lie f, in clu d in g  an ap p lication  f o r  a 
permanent, o r  tem porary  in ju n ction , restrain ing order o r  oth er order  
against the person o r  persons responsible fo r  such pattern  o r  p ra c ­
tice, as he deem s necessary to insure the fu ll en joym ent o f  the righ ts 
herein described.

(b )  In  any such p roceed in g  the A ttorn ey  G eneral m ay file w ith  the 
clerk o f  such court a request that a court o f  three ju d ges be convened 
to hear and determ ine the case. Such  request by  the A tto rn e y  G en ­
eral shall be accom panied  by  a certificate that, in his op in ion , the 
case is o f  general pu b lic  im portance. A  co p y  o f  the certificate and 
request fo r  a th ree-ju d ge  court, shall be im m ediately  fu rn ish ed  by  
such clerk  to the ch ie f ju d g e  o f  the c ircu it (o r  in  his absence, the 
presid ing c ircu it ju d g e  o f  the c ircu it) in w hich  the case is pending.
U pon  receipt o f  the cop y  o f  such request it  shall be the duty  o f  th e Designation of 
ch ie f ju d g e  o f  the circu it o r  the p resid ing  c ircu it ju d g e , as the case judges, 
m ay be, to  designate im m ediately  three ju d ges in such c ircu it, o f  
w hom  at least, one shall be a c ircu it ju d g e  and another o f  w hom  shall 
be a district ju d g e  o f  the court in  w hich  the p roceed in g  w as insti­
tuted, to hear and determ ine such case, and it shall be the duty o f  
the ju d ges so designated to  assign the case fo r  h earing  at the earliest 
practicable date, to  participate  in the h earing  and determ ination  
thereof, and to cause the case to be in  every  w ay expedited . A n  Appeals, 
appeal fro m  the final ju dgm en t o f  such court w ill lie  t o  the Suprem e 
Court.

In  the event the A ttorn ey  G eneral fa ils  to  file such a request in 
any such p roceed ing , it shall be the du ty  o f  the ch ie f ju d g e  o f  the 
district (o r  in his absence, the actin g  ch ie f ju d g e ) in  w h ich  the case is 
pending  im m ediately  to designate a ju d g e  in  such d istr ict to  hear and 
determ ine the case. In  the event that no ju d g e  in the district is 
available to hear and determ ine the case, the ch ie f ju d g e  o f  the district, 
or  the acting  ch ie f ju d g e , as the case m ay be, shall ce rt ify  th is fa c t 
to the ch ie f ju d g e  o f  the c ircu it (o r  in  his absence, the acting  ch ie f 
ju d g e ) w ho shall then  designate a d istrict o r  circu it ju d g e  o f  the circu it 
to hear and determ ine the case.

It shall be the duty  o f  the ju d g e  designated pursuant to  th is section 
to assign the case fo r  hearing  at the earliest practicab le  date and to  
cause the case to be in every  w ay expedited .

S e c . 207. (a )  T h e  d istrict courts o f  th e U n ited  States shall have D is tr ic t  cou rts, 
ju risd iction  o f  proceed ings instituted pursuant to  th is title  and shall ju r is d ic tio n , 
exercise the same w ithout regard  to  w hether the aggrieved  p a rty  shall 
have exhausted any adm in istrative o r  other rem edies that m ay be 
p rovided  by  law .

Pub. Law 88-352
78 STAT. 245.______



July 2, 1964

ement. (b )  T h e  rem edies p rov id ed  in th is title  shall be the exclusive means
o f  e n fo rc in g  the righ ts based on  th is  title , b u t n oth in g  in th is  title 
shall p reclude  any  in d iv id u al o r  any S tate  o r  loca l agen cy  from  assert­
in g  any r ig h t based on  any oth er F ed era l o r  S tate  law  n ot inconsistent 
w ith  th is title , in clu d in g  any  statute o r  ord inance requ irin g  n ond is­
crim ination  in public  establishm ents o r  accom m odations, o r  fro m  p u r­
su in g  any rem edy, c iv il o r  crim in a l, w hich  m ay be availab le  fo r  the 
v in d ica tion  o r  en forcem en t o f  such right.

Pub. Law 88-352
7a STAT. £ 4 6 . ____________



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