Correspondence from McCrary to Guinier

    I n  th e

Huttefc States (tart of Appeals
F or the F ifth Circuit

No. 21661

T om Taylor T olg,

Appellant-Appellee,
—v.—

T. R alph Grimes, Sheriff of Fulton County, Georgia,
Appellee-Appellant.

(A nd R everse T itle)

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA

BRIEF FOR THE APPELLANT-APPELLEE

Jack Greenberg 
J ames M. Nabrit, III 
Derrick B ell

10 Columbus Circle 
New York 19, New York

H oward Moore, J r .
D onald L. H ollowell

859% Hunter Street, N.W.
Atlanta, Georgia 30314

Attorneys for Appellant-Appellee



I N D E X

PAGE

Statement of the Case ................................. .....................  1

Events of June 17, 1963 ........ ........... ......................  2

Pretrial Proceedings and Activities ........... ........ . 6

Post-Conviction Proceedings ............................. .......  7

Specifications of Error ........... ....... ....................................  10

A rgument :

I. The Passage of the 1964 Civil Eights Act 
While This Conviction Was Under Collateral 
Review Requires Its Yoidance .......................  11

II. Petitioner’s Convictions Enforced Racial Dis­
crimination in Violation of the Fourteenth 
Amendment to the Constitution of the United 
States ................................... ..... ............ ............ . 15

A. The Enforcement of Racial Discrimination
by Means of the State Judicial Power and 
State Police and Prosecutors Is Such an 
Application of State Power as to Violate 
the Guarantees of the Fourteenth Amend­
ment ......... .- ............................... ........ .............  15

B. The State Has Breached Its Obligation to
Afford the Equal Protection of the Laws 
by Maintaining a System of Law and Law 
Enforcement Which Denies Protection 
Against Public Racial Discrimination .......  17

Conclusion 19



11

Table of Cases
page

Barrows v. Jackson, 346 U. S. 249 .........    16
Bell v. Maryland,------ U. S .------- , 12 L. Ed. 2d 822 .... 17
Buchanan v. Warley, 245 U. S. 60 ----       16
Burton v. Wilmington Parking Authority, 365 U. S. 715 18

Catlette v. United States, 132 F. 2d 902 (4th Cir. 1943) .. 18
Chambers v. United States, 291 U. S. 217------------   13
Clark v. State, 219 Ga. 270, 135 S. E. 2d 270 (1964) .... 9

Durham v. State, 219 Ga. 830,136 S. E. 2d 322 (1964) .. 9

Ex Parte Virginia, 100 U. S. 339 -----------------------------  18

Germany. State, 219 Ga. 830, 136 S. E. 2d 322 (1964) .. 9

Hamm v. Bock Hill, 33 U. S. Law Week 4079 (1964)
11,12,13

Lloyd v. State, 219 Ga. 830, 136 S. E. 2d 322 (1964) .... 9
Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951) 

cert, denied 342 U. S. 831 .... ......................... ............  18

McCabe v. Atchison, Topeka & S. F. By. Co., 235 U. S.
151 ..................................................................... ................  18

Shelley v. Kraemer, 334 U. S. 1 .................. ....... ............ 15,16
Slaughter House Cases, 83 U. S. (16 Wall.) 36 ..... .....  18
Strauder v. West Virginia, 100 U. S. 303 ....................... 18

Terry v. Adams, 345 U. S. 461 ....................................... 18
Townsend v. Sain, 372 U. S. 293 ....................................... 14

United States v. Grimes, 229 F. Supp. 289 (1964) ....1, 9,13



Ill

Statutes

p a g e

Civil Rights Act of 1964, 78 Stat. 241 ...............11,12,14

Title 28, IT. S. C. A. §2241(3) ....... ............ .............. . 8

Georgia Code Annotated, Title 26, Section 3005 ___2, 6, 8



I n  th e

Htuteft ©curt of Appeals
F oe the F ifth Circuit 

No. 21661

T om Taylor T olg,
Appellant-Appellee,

T. R alph Grimes, Sheriff of Fulton County, Georgia,
Appellee-Appellant.

(A nd R everse T itle)

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA

BRIEF FOR THE APPELLANT-APPELLEE

Statement o f  the Case

This is an appeal from the order and judgment of the 
United States District Court for the Northern District of 
Georgia1 denying appellant-appellee’s petition for a writ 
of habeas corpus, and remanding him to the custody of 
appellee-appellant Sheriff of Fulton County, Georgia (R. 
171, 172).2

1 The opinion of the court is reported at 229 F. Supp. 289, United 
States v. Grimes (May 8, 1964) (R. 149-171).

2 R. refers to the printed record on appeal filed September 2, 1964.



2

On June 17, 1963 (Tr. 4),3 appellant-appellee Tom Taylor 
Tolg, a 23 year old white graduate-assistant at Miami Uni­
versity, Oxford, Ohio, was arrested at Leb’s Restaurant 
in Atlanta, Georgia when he and 13 others, including 11 
Negroes (Tr. 53), attempted to enter for lunch. He was 
charged with trespass after warning in violation of Title 26, 
Georgia Code Annotated, Section 3005:

Refusal to leave premises of another when ordered 
to do so by owner or person in charge.

It shall be unlawful for any person, who is on the 
premises of another, to refuse and fail to leave said 
premises when requested to do so by the owner or any 
person in charge of said premises or the agent or em­
ployee of such owner or such person in charge. Any 
person violating the provisions of this section shall be 
guilty of a misdemeanor and upon conviction thereof 
shall be punished as for a misdemeanor (Acts 1960, 
p. 142).

The restaurant is open to the public (PA 14)4 approxi­
mately 20 hours a day, 7 days a week and has a seating 
capacity of about 175. It can accommodate a party of 14 
at one table (PA 13).

Events o f June 17, 1963

Tolg and his companions had walked from the west side of 
Atlanta to Leb’s Restaurant at 66 Luckie Street (PA 72). 
A triangular foyer with a maximum depth of seven to

3 Tr. refers to Respondent’s Exhibit “R-7” , brief of evidence 
upon the trial of the case in the Superior Court, Fulton County, 
Georgia, filed May 11, 1964.

4 PA refers to the transcript of evidence taken on the Plea in 
Abatement, Petitioner’s Exhibit “P-9” , Superior Court, Fulton 
County, Georgia, filed May 11, 1964.



B

eight feet and a width of fifteen feet (Tr. 69) extends 
from the sidewalk to the door of the restaurant. One of 
Leb’s employees had been stationed outside (Tr. 18, 19) to 
“ protect my place” , according to Charles Lebedin (Tr. 19), 
president of Lebco, Inc. (Tr. 2, 3). By the time Tolg and 
his companions had reached the foyer (Tr. 13, 30), Charles 
Lebedin had seen them and held fast the door to the restau­
rant (Tr. 11). When Tolg and his companions reached the 
foyer they were attacked by the employee stationed outside 
and by others employed by Leb’s (Tr. 75, 76; PA 75-82).

Lebedin testified that the group “ rushed” his entrance 
(PA 21). Tolg testified that they had walked up to the 
entrance at a normal pace (Tr. 75).

At the trial of Tolg, Mr. Lebedin stated that he and 
his men did everything “ that we had to do to protect our­
selves and our business” (Tr. 45). One young Negro girl 
at the front of the group was thrown from the foyer onto 
the sidewalk (PA 78-79). A  young white youth, Michael 
Sayer, was punched, kicked and finally tossed by an em­
ployee of Leb’s (PA 79-80). He was one of two in the group 
requiring hospital treatment for lacerations (PA 79; Tr. 
62). Thomas Rachel, a young Negro college student, was 
similarly beaten by an employee of Leb’s (PA 105, 106).

Mr. Lebedin testified that after the group “ rushed”  his 
entrance, they sat down in the foyer (Tr. 35). Tolg and 
his student companions testified that they had sat down 
in a spirit of non-violent resistance in an effort to pro­
tect themselves from further injuries (PA 97, 107; Tr. 86). 
While thus seated, one of Mr. Lebedin’s managers opened 
and closed the door against the backs of those sitting closest 
to it. Tolg testified that Mr. Lebedin encouraged the as­
sault with “ Break their backs” (Tr. 75). Mr. Lebedin did 
not recall this statement (Tr. 38). Lieut. Perry of the



4

Atlanta Police Department, the arresting officer (Tr. 52, 
62-63), testified that when he arrived, Mr. Lebedin was 
inside the restaurant at the door while somebody was push­
ing it open and hitting the students (Tr. 61, 62).

Lieut. Perry had been summoned to the scene by police 
radio (Tr. 53, 55). He ordered the “ rough stuff” terminated 
(PA  82) but the assault continued. Another policeman had 
arrived before Perry but did not interfere with the beat­
ings (PA 82).

The evidence was conflicting as to whether or not Mr. 
Lebedin had requested the group to leave prior to being 
directed to do so by Lieut. Perry (PA 22, 45, 59, 97, 98, 110). 
Mr. Lebedin testified that he told “him” [Tolg] to leave 
when “ they” [the police] “ told me to tell each individual to 
leave” (PA 22). After being thus advised by Lieut. Perry, 
Mr. Lebedin pointed his finger at each of the members of the 
group saying, “You leave” (PA 97; Tr. 59). Lieut. Perry, 
at his own request, had been issued a copy of the Georgia 
anti-trespass statute and carried it on his person (PA 64).

Tolg and his companions were arrested and dragged away 
by policemen (PA  98, 99, 111; Tr. 88) within four to five 
minutes, according to their testimony, after this request to 
leave was made (PA 84). The arresting officer testified 
that within twelve minutes of his arrival, Tolg and the 
thirteen others had been placed in the parked police wagons 
(PA 60). One of the group testified that he was unable 
to leave in the interval between the request and the arrest, 
having been shaken up by the beating and intimidated by 
the crowd which had gathered:

I felt unable to leave the restaurant because of the 
two facts already described. One, I was very shaken 
up by the beating and, two, there was a very hostile 
crowd there which, I felt that in all consideration of



0

my personal property, which includes myself, that it 
was safer to remain on the premises rather than walk 
into a crowd (PA 98).

Tolg and his companions were the only persons arrested; 
none of the persons who attacked them were arrested 
(Tr. 63).

Mr. Lebedin testified that the group did not cause any 
property damage but that his business was nevertheless 
injured because prospective customers were unable to 
enter or leave during the lunch hour (PA 52). He ad­
mitted however that there is another, less frequently used, 
entrance and exit to the restaurant through an adjacent 
building (PA 33-35). He further admitted that he did not 
ask Tolg if he wanted to be served (PA 46), stating 
that he was abiding by the law in reserving the right to 
serve whomever he pleased (PA 29). He testified that he 
would exclude or eject any person who caused a disturbance 
due to dissatisfaction with the food or by talking loudly, 
drinking, cursing, using profanity or appearing to be 
unclean (PA 27-28). The uncontroverted testimony shows 
that the group was clean, non-boisterous and not intoxicated 
(PA 87). Mr. Lebedin was unable to recall whether he had 
ever served a Negro in his place of business or a white per­
son accompanied by a Negro (PA 39).

There was no evidence that Tolg was objectionable for 
any reason other than the race of his companions (PA 39, 
62, 86; Tr. 78). Michael Sayer testified that unaccompanied 
by Negroes, he had eaten in Leb’s on other occasions 
without incident (PA 86). Tolg testified that he too had 
eaten at Leb’s since June 17, 1963 without incident when 
unaccompanied by Negroes (Tr. 78).



6

Pretrial Proceedings and Activities

Tolg was indicted and charged with violating Title 26, 
Georgia Code Annotated, Section 3005, a misdemeanor (E. 
137-138).

On July 2, 1963 (E. 104) the Honorable Dnrwood T. 
Pye, Superior Court, Atlanta Judicial Circuit, in charging 
the Grand Jury, read the Georgia statute in question and 
commented:

Obviously this Act has nothing whatever to do with 
so-called compulsory segregation or so-called compul­
sory integration . . .

He further instructed that the United States Supreme 
Court had not held that the enforcement of trespass laws 
in relation to private business establishments constituted 
a denial of equal protection. Judge Pye continued:

It is common knowledge that this law, during recent 
months and weeks, has been flouted, defied and vio­
lated, that these violations have been frequent and 
repeated, and the results of combinations and con­
spiracies . . . (E. 107-108).

On July 15, 1963, Judge Pye wrote the Atlanta Chief 
of Police, requesting a list of all persons who had been 
arrested for violating the anti-trespass statute and an ac­
count of the circumstances of the arrests. He requested 
information for the two year period of the statute of limi­
tations and specifically asked for the names of the persons 
arrested, the date and place of arrest, the premises in­
volved, and the witnesses, including police officers (E. 36, 
37).

On July 17, 1963, the Chief of Police supplied the re­
quested information, including Tolg’s name (E. 37).



7

Shortly thereafter, Judge Pye set a special calendar for 
the ninth part of the July-August Term, 1963, in order to 
try and hear the charges against Tolg (E. 127).

Before pleading to the indictment, Tolg filed a general 
demurrer assailing the constitutionality of the statute and 
a plea in abatement challenging the constitutionality of 
the statute as applied (E. 186). After evidence and argu­
ment of counsel, Judge Pye overruled the plea in abate­
ment (E. 117).

Tolg was tried by jury during the 1963 July Term of 
the Superior Court of Fulton County before the Honorable 
Durwood T. Pye, found guilty and ordered to pay a fine of 
$1,000, sentenced to 12 months of labor on the County Pub­
lic Works and 6 months in jail. The sentence provided 
for a reduction of the 12 months on the Public Works to 
4 if defendant in good faith petitioned the court setting 
forth his intention to obey the laws of Georgia and of every 
other state wherein he might be a resident (E. 139-140).

Post-Conviction Proceedings

Upon conviction and sentencing, Tolg filed a motion in 
arrest of judgment and a motion for a new trial (E. 141- 
142; Exh. B-5; Exh. E-6). Bond was fixed in the amount 
of $5,000 (E. 188).

Hearing upon Tolg’s motions was continued until Feb­
ruary 10, 1964. On February 11, 1964, at the hearing 
on the motion for new trial and the motion in arrest of 
judgment, it was noted that the transcript of the plea in 
abatement had not been completed. It was agreed between 
all parties that the Court would not rule on said motions 
until the transcript of the plea in abatement had been com­
pleted and approved by the Court (E. 144-146).



On March 11,1964, the completed transcript was delivered 
to counsel for Tolg. The transcript was approved by the 
Court on March 12, 1964 (R. 147).

On March 13, 1964, Judge Pye overruled the motions 
(R. 141-143). The orders were filed in the Clerk’s office 
and entered in the minutes on the same day (R. 21, 93).

Tolg’s counsel did not learn that the motions had been 
overruled until after the expiration of the thirty days 
under which a bill of exceptions could be filed under state 
law. Judge Pye informed Tolg’s attorney that he had 
overruled Tolg’s motions when said attorney approached 
the Judge on or about April 17, 1964, seeking an order 
in another matter. The Judge had 90 days from the pre­
sentment of the transcript of the evidence taken on the 
plea of abatement, in this case, March 12 or 13, to rule 
on the motions. Mrs. Lorraine Johnson, secretary to Judge 
Pye, testified that she mailed a copy of the orders to 
Tolg’s attorneys on March 13, 1964 (R. 16-18, 21). There 
was no record of the mailing and Mrs. Johnson admitted 
that her statement was based upon her best recollection of 
what she had done (R. 19-20).

On April 20, 1964, Tolg was committed to the custody 
of the sheriff, pursuant to the order of Judge Pye. Tolg 
filed a petition for writ of habeas corpus in the United 
States District Court basing jurisdiction on Title 28, U. S. 
C. A. §2241(3) (R. 110,111).

In his petition for writ of habeas corpus, Tolg alleged 
that his conviction, sentence and imprisonment consti­
tuted a denial of the equal protection of the law under the 
Fourteenth Amendment in that they were based upon a dis­
criminatory application of Title 26, Georgia Code Anno­
tated, Section 3005, against Negro citizens of the United 
States and white citizens accompanied by Negroes. He



9

further alleged that the application of the statute in this 
manner perpetuated by legislative enactment and state en­
forcement a scheme of racial discrimination in restaurants; 
that the State of Georgia by statute, practice and custom 
permitted and condoned racial discrimination in restau­
rants and other places of similar character ostensibly open 
to the general public, thereby denying petitioner due proc­
ess of law and equal protection of the law as guaranteed by 
Section 1 of the Fourteenth Amendment to the United 
States Constitution (E. 111-113).

District Judge Frank A. Hooper issued a show cause 
order setting the matter down for a hearing on Monday, 
April 27, 1964 (E. 122). Appellee-appellant sheriff filed a 
motion to dismiss on the grounds that Tolg had failed to 
exhaust his state remedies, noting specifically Tolg’s failure 
to file a bill of exceptions (E. 122-123). After hearing evi­
dence on the issue of notice of the state court’s order deny­
ing Tolg’s post-conviction motions, the district court over­
ruled the motion to dismiss and entertained the application 
for writ of habeas corpus, expressly disregarding Tolg’s 
failure “ for any reason to pursue his remedy of appeal in 
the courts of Georgia” 229 F. Supp. 293. In ruling upon 
Tolg’s challenge to the constitutionality of the anti-trespass 
statute, the court cited Durham v. State, Lloyd v. State, 
and German v. State, 219 Ga. 830, 136 S. E. 2d 322 (1964) 
and Clark v. State, 219 Ga. 270, 135 S. E. 2d 270 (1964) 
as controlling, 229 F. Supp. 289, 294 (1964). The court 
entered judgment denying the application for writ of habeas 
corpus on the grounds that the Georgia anti-trespass stat­
ute on its face and as applied did not deny due process of 
law or equal protection of the law (E. 149, 169-171).

Sheriff Grimes, respondent in the habeas corpus pro­
ceeding, filed a cross appeal appealing the District Court’s



10

denial of his motion to dismiss the petition for writ of 
habeas corpus (it. 189).

Specifications o f  Error

1. The District Court erred in failing to find the applica­
tion and enforcement of the Georgia anti-trespass 
statute a denial of the equal protection of the law in 
violation of the Fourteenth Amendment to the Con­
stitution of the United States.

2. The District Court erred in failing to make an express 
finding that the conduct of the state trial judge and 
the local police officers in the enforcement of the anti­
trespass statute constituted state action within the 
meaning of the Fourteenth Amendment.



11

A R G U M E N T

I.

The Passage o f  the 1964 Civil Rights Act While This 
Conviction Was Under Collateral Review Requires Its 
Yoidance.

In Hamm v. Rock Hill, 33 U. S. Law Week 4079 (1964), 
the Supreme Court vacated state trespass convictions on 
direct review at the time of the passage of the 1964 Civil 
Rights Act.5 The court’s reasoning was two-pronged: it 
found that the language of §203 (c )6 of the Civil Rights Act 
immunized from prosecution non-forcible attempts to gain 
admittance to or to remain in establishments covered by 
the Act. The Act was not limited solely to those who pur­
sued statutory remedies and was thus available as a de­
fense against criminal trespass prosecutions and more 
generally, “ the application of state laws in a way that 
would deprive any person of the rights granted under the 
Act.” 33 U. S. Law Week 4079, 4080. Secondly, the court 
determined that the federal Act, by way of the Supremacy 
Clause, operated to abate pre-enactment state court con­
victions.

6 78 Stat. 241.
6 §203:

No person shall (a) withhold, deny, or attempt to withhold 
or deny, or, deprive or attempt to deprive, any person of any 
right or privilege secured by section 201 or 202, or (b) in­
timidate, 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.



12

The instant case is clearly within the reasoning and 
purpose underlying the Hamm decision. We have here, 
as there, a restaurant which is well within the class of 
covered establishments.7 Leb’s Restaurant is, in the words 
of its owner, open to the public (PA  14). It has a seating 
capacity of 175 (PA  13). It served Tolg without question 
when he was unaccompanied by Negroes.

It is reasonable to conclude from these facts, as the court 
did on the basis of similar facts in Hamm v. Rock Hill,8 
supra, that Leb’s is a place of public accommodation which 
serves or offers to serve interstate travelers.9

7 §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 . . .

* * #
(2) any restaurant, cafeteria, lunchroom, lunch counter, 
soda fountain, or other facility principally engaged in sell­
ing food for consumption on the premises, including but not 
limited to, any such facility located on the premises of any 
retail establishment. . . .

(c) The operations of an establishment affect commerce within 
the meaning of this title if . . .  it serves or offers to serve 
interstate travelers. . . .

8 In Hamm, the establishment in question was a lunch counter 
in a McCrory’s 5 and 10 cent store, a large variety store belonging 
to a national chain. It was undisputed that it invited all members 
of the public into its premises to do business and offered to serve 
all persons except at its lunch counter which was restricted to white 
persons only. Similarly, in Lupper v. Arkansas, the companion case 
to Hamm, the lunch counter, a tea-room, was located within and 
operated by the Gus Blass Department Store, Inc., at Little Rock. 
It is a large department store dealing in interstate commerce. It 
likewise offered to serve all persons coming into its store but 
limited its lunch counter service to white persons.

9 The District Court found: “While Mr. Lebedin would not 
expressly admit it, it appears clear from his testimony that it



13

The ratio decidendi of Hamm was Chief Justice Hughes’ 
opinion in Chambers v. United States, 291 U. S. 217, 226 
quoted by that court at p. 4081:

‘prosecution for crimes is but an application or en­
forcement of the law, and if the prosecution continues, 
the law must continue to vivify it.’

On this analysis, Congress is seen as intending to avoid 
the infliction of punishment at a time when it furthers no 
legislative purpose and would be unnecessarily vindictive. 
The Court had no difficulty in combining this decision with 
the mechanics of abatement and vacating state court con­
victions under direct review at the time of the passage 
of the Act.

Although the specific applications of abatement have 
been limited historically to prosecutions and convictions 
under direct review, the rationale of Hamm extends to 
convictions under collateral review by petition for a writ 
of habeas corpus. The court was specific in imputing to 
Congress an intent “ to eradicate an unhappy chapter in 
our history.” Nothing would be more inconsistent with 
the court’s reasoning and its determination of congres­
sional intent than the imposition of criminal penalties 
for conduct “ on behalf of a principle since embodied in the 
law of the land.” Hamm v. Rock Hill, 33 U. S. Law Week 
4079, 4081.

was his policy to exclude Negroes as customers from his restaurant.” 
U. S. v. Grimes, 229 F. Supp. 289, at p. 292 (1964). The implica­
tion here is that all others were admitted without question. Charles 
Lebedin, while insisting that he maintained the right to serve 
whomever he pleased, enumerated only the generally accepted 
standards of cleanliness, sobriety and respectable conduct as con­
ditions precedent to entering his restaurant and being served (PA 
27-28).



14

Increasingly, in state criminal prosecutions involving 
federal constitutional claims, federal habeas corpus has 
been used to review the alleged errors of state judicial 
systems. Consequently, what was once an “ extraordinary” 
remedy has become a normal procedural step in criminal 
cases involving claimed denials of constitutional rights. 
The function of federal habeas corpus was outlined in 
Townsend v. Sain, 372 U. S. 293, 311, 312:

It is to test by way of an original civil proceeding, 
independent of the normal channels of review of crim­
inal judgments, the very gravest allegations.

It thus constitutes one of the most important phases of 
judicial review, and stands as an integral part of a complex 
system of review and appeal.

The Act itself contains language making it difficult to 
countenance criminal punishment in a matter still under 
review. Section 203(c) provides:

No person shall . . . punish or attempt to punish any 
person for exercising or attempting to exercise any 
right or privilege secured by Section 201 or 202. (Em­
phasis supplied.)

One specific aim of the legislation was to terminate the 
punishment of those exercising what they believed consti­
tutionally protected rights. To the extent that the Act was 
thus concerned with making impossible the punishment of 
certain conduct, it would be defeating indeed to condition 
this purpose upon the method by which a pre-enactment 
conviction is being reviewed.

Tolg satisfied the only condition enumerated by the court 
as necessary for the defensive use of the Act when he made



15

a non-forcible attempt to gain admission to Leb’s Restau­
rant.10

II.
Petitioners’ Convictions Enforced Racial Discrimina­

tion in Violation o f  the Fourteenth Amendment to the 
Constitution o f  the United States.

A. The Enforcement o f Racial Discrimination by Means o f the 
State Judicial Power and State Police and Prosecutors Is 
Such an Application ©f State Power as to Violate the 
Guarantees o f the Fourteenth Amendment.

Shelley v. Kraemer, 334 U. S. 1, established that state 
action sufficient to bring to bear the guarantees of the 
Fourteenth Amendment is present in the use of state judi­
cial machinery to enforce a privately-originated scheme 
of racial discrimination. Unless that case is to be over­
ruled, or irrationally “ distinguished” away, it applies a 
fortiori to the instant case where not only the state judicial 
power but also the powers of the state police and prose­
cutors have sanctioned the permitted custom of segregation. 
Here the arresting police officer carried on his person a 
copy of the Georgia anti-trespass statute, ready to instruct 
the appropriate warning recjuest in order to effectuate ar­
rests. The presiding trial court judge corresponded with 
the Atlanta Police Department prior to trial, in an effort 
to learn the circumstances surrounding the application of

10 Under any interpretation of the facts, Tolg’s attempt to secure 
service was non-forcible. Tolg testified that finding the door held 
fast and themselves attacked, they sat down in order to protect 
themselves. Mr. Lebedin, although testifying that Tolg and his 
companions “rushed” his entrance, stated that they sat down 
when the door was closed against them (PA 21, Tr. 75).



16

the statute. Here the judicial proceedings were criminal 
in nature, carried on by the public prosecutor at public 
expense with a policeman testifying in the interest of the 
state in knowing support of the discriminatory scheme, 
sanctioning the latter within its own public order, and not 
merely standing by to enforce private rights by civil process 
as in Shelley v. Kraemer, supra. Cf. Barrows v. Jackson, 
346 U. S. 249.

Virtually universal though nominally “ private” discrim­
ination in places of public accommodation, backed up by 
alert police and by criminal prosecutions, is the exact func­
tional equivalent of restaurant segregation imposed by city 
ordinance. It makes no difference to a Negro which of two 
legal formalities assures his being barred from all the good 
restaurants and most of the bad ones in town, any more 
than it makes a difference to him which doctrinal route— 
“ zoning” 11 or the Shelley v. Kraemer “ private covenant” 
—led to his being unable to live in the neighborhood.

The true problem here is not whether Tolg has, in 
some sense, a “ right” under the Fourteenth Amendment not 
to be barred from restaurants. The question is, against 
what kind of action and on whose part does the “ right” 
run? Shelley very clearly held that the “ right” to enjoy 
property was infringed by forbidden state action when the 
judicial arm of the state lent its enforcement to a “ purely 
private” arrangement. It decided thus that the state may 
not aid in the enforcement of racism in the public life of 
the community.

11 See, Buchanan v. Warley, 245 TJ. S. 60.



17

B. The State Has Breached Its Obligation to Afford the Equal 
Protection o f the Laws by Maintaining a System o f Law 
and Law Enforcement Which Denies Protection Against 
Public Racial Discrimination.

The obligation of the state under the Fourteenth Amend­
ment is an affirmative one—the affording of equal protec­
tion of the laws. That obligation is breached when, as 
here, the state maintains a regime of laws which denies to 
petitioners protection against public racial discrimination, 
and instead, subordinates their claim of equality in the 
common and public life of the state to a narrow property 
claim and enforces the subordination by the extreme sanc­
tion of the criminal law.

It is submitted that the equal protection clause of the 
Fourteenth Amendment imposes upon the state the obliga­
tion of maintaining a regime of law in which Negroes, whose 
protection was the dominating purpose of the Fourteenth 
Amendment, are in fact protected against gross discrim­
ination in the common public life of the states. On this 
issue, we refer to the concurring opinion of Mr. Justice
Goldberg in Bell v. Maryland,------ IT. S .------- , 12 L. Ed. 2d
822, 832-850 who reasoned that the Fourteenth Amendment 
requires the states to maintain legal systems in which 
Negroes, and their companions, such as Tolg, would be 
protected against public discrimination in restaurants oth­
erwise open to the general public. We refer also to the 
history garnered there which by a very heavy prepon­
derance establishes that the guarantee to Negroes of equal 
access to places of public accommodation ought to be taken 
as one of the characteristics of the system of law which 
the Fourteenth Amendment requires the state to maintain.

The earliest cases under the Amendment suggest strongly 
that the purpose of the Amendment was ‘ ‘the protection of



18

the newly made freemen and citizen from the oppressions 
of those who had formerly exercised unlimited dominion 
over him.” Slaughter House Cases, 83 U. S. (16 Wall.) 
36, 71. “ They were intended to take away all possibility of 
oppression by law because of race or color.” Ex parte 
Virginia, 100 IT. S. 339, 344-345.

The words of the Amendment, it is true, are pro­
hibitory, but they contain a necessary implication of 
a positive immunity, or right, most valuable to the 
colored race—the right to exemption from . . . legal 
discriminations, implying inferiority in civil society, 
lessening the security of their enjoyment of the rights 
which others enjoy, and discriminations which are steps 
toward reducing them to the condition of a subject race. 
Strauder v. West Virginia, 100 U. S. 303, 307-8.

It has long been recognized that a state, by merely per­
mitting activity which frustrates a constitutional guarantee, 
may violate the Constitution. See Terry v. Adams, 345 
U. S. 461, 469, 473, 477. The case at bar is sharper. Here 
the state not only permits conduct which frustrates and 
makes worthless the Fourteenth Amendment guarantee 
against segregation by public power, but also puts the 
weight of its criminal sanctions behind that conduct. Cf. 
Burton v. Wilmington Parking Authority, 365 U. S. 715; 
McCabe v. Atchison, Topeka & S. F. By. Co., 235 IT. S. 151; 
Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951) cert, 
den. 342 IT. S. 831; Catlette v. United States, 132 F. 2d 902 
(4th Cir. 1943).

These theories of state action do not necessarily and 
inevitably extend Fourteenth Amendment guarantees to 
the genuinely private concerns of individuals. This result, 
unwanted and absurd, is logically avoided by the discern­
ment and use of a canon of interpretation of the Fourteenth



19

Amendment, limiting that Amendment’s force to the func­
tionally public life. In the instant case, the record shows 
no private or personal associational interest at stake. In­
deed, this case concerns events in a public restaurant 
where no one expects to choose his surrounding company 
and where customer-by-customer “ choice” by proprietors 
or managers is virtually unknown. Admittedly distinc­
tions between public and private and a determination of 
what constitutes “ state action” are difficult, but such deci­
sions must always be made by the court. However, this 
is not the case at bar. Here the distinction between the 
public communal life and the individual private life is 
definite and precise.

CONCLUSION

W herefore, it is respectfully submitted that the judg­
ment below should be reversed.

Bespectfully submitted,

Jack Greenberg 
James M. Nabrit, III 
Derrick Bell 

10 Columbus Circle 
New York 19, New York

H oward Moore, J r.
D onald L. H ollowell 

859% Hunter Street, N.W.
Atlanta, Georgia 30314

Attorneys for Appellant-Appellee



20

CERTIFICATE OF SERVICE

This is to certify that on the .... . day of ......................
1965, I served copies of the foregoing Brief for Appellant- 
Appellee upon Eugene Cook, Attorney General, State of 
Georgia, Judicial Building, Atlanta, Georgia; William T. 
Boyd, Solicitor General, Atlanta Judicial Circuit, Fulton 
County Courthouse, Atlanta, Georgia, 30303; J. Robert 
Sparks, Assistant Solicitor General, Atlanta Judicial Cir­
cuit, Fulton County Courthouse, Atlanta, Georgia, 30303 
and Albert Sidney Johnson, Ass’t Attorney General, 132 
Judicial Building, 40 Capitol Square, Atlanta, Georgia 
30303, by mailing copies thereof to the above addresses via 
United States mail, airmail, postage prepaid.

Attorney for Appellant-Appellee



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