Grimes v. Tolg Brief in Opposition to Petition for a Writ of Certiorari

    S u t p r e m p  G I m t r t  o f  %  I m t e f c  S ta tes
O ctober  T e r m , 1965 

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

I n  t h e

T. R a l p h  Gr im e s , Sheriff o f  Fulton County, Georgia,
Petitioner,

— v .—

T om  T aylor T olg,
Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT 
OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FIFTH CIRCUIT

J ack  Greenberg  
J am es  M . N abrit , III 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

H oward M oore, J r .
D onald  L. H ollow ell

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

Attorneys for Respondent

S h e il a  R u s h  
Of Counsel



I N D E X

PAGE

Statement, of the Case .................. ............................ — 1

Reasons for Denying the Writ ...................................  4
I. The Court Below Properly Concluded That 

Respondent’s Conduct Was Protected By the 
1964 Civil Rights Act ......................... - ........ 4

II. Respondent Has Not Stated Any Reasons Jus­
tifying Certiorari Review .............................. 5

C o n c lu sio n  ..........................................................................................  6

T able op C ases

Hamm v. Rock Hill, 379 U.S. 306 (1964) ..................... 4, 5

McKinnie v. Tennessee, 380 U.S. 449 (1965) - ....... ........ 4

S ta tu tes

Civil Rights Act of 1964, 78 Stat. 241 ............ ............  4, 5



I n  t h e

&ujjrpmp (ta r t  of %  itmtrfr i&atPB
O ctober T e r m , 1965 

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

T . R a l p h  Gr im e s , Sheriff of Fulton County, Georgia,
Petitioner,

—v.—

T om  T aylor T olg,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A WRIT 
OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FIFTH CIRCUIT

Statement of the Case

Petitioner’s statement of facts is incomplete and con­
tradicted by the record. Respondent, therefore, submits 
the following corrections and additions.

On June 17,1963, respondent Tom Taylor Tolg, a 23-year 
old white graduate assistant at Miami University, Oxford, 
Ohio, was arrested at Leb’s Restaurant in Atlanta, Georgia 
when he and 13 others, including 11 Negroes, attempted 
to enter for lunch (Tr.* 4, 53).

Uncontroverted testimony shows that Tolg and his com­
panions were clean, quiet and sober; at no time were they

* Tr. refers to the brief of evidence upon the trial of the ease in the 
Superior Court, Fulton County, Georgia, filed May 11, 1964.



2

boisterous or unruly (PA## 87). Nevertheless, when they 
approached the foyer of the restaurant the employees of 
the restaurant, stationed outside the entrance, attacked 
the group as it entered the foyer and the owner held the 
door against their entry (PA 72, Tr. 2, 3, 18, 19). A 
crowd quickly formed around respondent Tolg and his 
companions, and they were further beaten, kicked and 
punched (Tr. 11, 13, 30, 75, 76; R. 66-68). Two of Tolg’s 
companions subsequently received hospital treatment for 
lacerations (PA 79, Tr. 62).

At no time did Tolg or his companions assault anyone, 
and at no time did they physically defend themselves. 
Instead, they locked arms to protect themselves against 
further injuries and to avoid responding with violence 
(Tr. 35, 86, PA 94, 104; R. 56, 68). The assault on them 
continued, however, until Lt. Perry of the Atlanta Police 
Department arrived and ordered the “rough stuff” termi­
nated (PA 82).

It is uncontroverted that within 12 minutes of his arrival, 
Lt. Perry arrested Tolg and his companions and carried 
them to the parked police wagons (PA 60). One member 
of the group explained why it was necessary to carry 
him away:

I felt unable to leave the restaurant because of two 
facts already described. One, I wras very shaken up 
by the beating and, two, there was a very hostile 
crowd there which, I felt that in all consideration of 
my personal property, wdiich includes myself, that it 
was safer to remain on the premises rather than walk 
into a crowd (PA 98). **

** PA refers to the transcript of evidence taken on the Plea of Abate­
ment in the Superior Court, Fulton County, Georgia, filed May XI, 1964.



3

The police did not arrest any of the people who attacked 
the students (Tr. 63).

After being convicted and sentenced, Tolg filed motions 
in arrest of judgment and for a new trial (R. 141-142). 
At a hearing on February 11, 1964, the parties agreed 
that the court would not rule on the motions until the 
transcript of the plea in abatement had been completed 
and approved by the court (R. 144-146). Judge Durwood 
T. Pye had 90 days from the presentment of the transcript 
of evidence on the plea of abatement to rule on the mo­
tions. On March 11, 1964 the completed transcript was 
delivered to Tolg’s counsel. The court approved the tran­
script on March 12, 1964 and overruled the motions on 
March 13, 1964 (R. 141-143, 147).

Tolg’s attorney testified that he never was notified that 
the motions had been overruled. He learned of the court’s 
action when he encountered Judge Pye in court on April 17, 
1964 and questioned him about the motions. By that time, 
the time for filing a bill of exceptions had expired. 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 she was relying 
solely upon her recollection (R. 19-20).



4

Reasons for Denying the Writ

I.

The court below properly concluded that respondent’s 
conduct was protected by 1964 Civil Rights Act.

Petitioner, by suggesting that Tolg’s conduct was forcible 
and therefore not protected by the 1964 Civil Rights Act,1 
has deliberately misstated the basis of the District Court’s 
decision and distorted the evidence reviewed by the Court 
of Appeals. The District Court did not find, as suggested 
by petitioner, that Tolg forcibly sought entry to Leb’s 
Restaurant. Indeed, the court found only that Tolg and 
the others had restricted access to the restaurant (R. 154). 
The Court of Appeals had an uncontroverted record show­
ing that Tolg and the others were orderly and that they 
acted only to protect themselves against assaults.

Petitioner’s distortion of the evidence is exemplified 
by the comment that the decision below in effect protects 
conduct that “does not differ in kind” from “pull[ing] 
a pistol, shoot [ing] and kill[ing] the offending restaurant 
owner” (p. 8 Petition for Writ of Certiorari). Respondent 
submits, however, that the conduct here more closely 
resembles that reviewed in McKinnie v. Tennessee, 380 
U.S. 449 (1965), where this Court reversed pre-enactment 
convictions against petitioners who similarly had been 
prevented from entering a restaurant. There, as here, 
crowding resulted from holding the door against the entry 
of the group seeking service.

1 Hamm v. Rock Hill, 379 U.S. 306, 311 (1965) voided pre-enactment 
convictions for “nonforcible” attempts to gain admittance or to remain 
in places of public accommodations. (Emphasis added.)



5

Respondent has not stated any reasons justifying 
certiorari review.

Petitioner has urged this Court to review the Court of 
Appeal’s application of the abatement principle of Hamm 
v. Rock Hill, 379 U.S. 306 (1964) to convictions on collateral 
review at the time of the passage of the 1964 Civil Rights 
Act. Significantly, petitioner offers no reasons justifying 
certiorari review and fails to mention that only two or 
three cases now pending would be affected by such a review. 
Nearly all pre-enactment convictions have been dismissed 
under the mandate of Hamm, and what was in that case a 
matter of great public importance has become insignificant.

Respondent respectfully submits that this case does not 
raise any of the considerations which normally motivate 
this Court to exercise certiorari jurisdiction. Not only 
is this case not of general public importance, it does not 
involve a conflict between Courts of Appeals, nor does it 
conflict with the decision of this Court in Hamm v. Rock Hill, 
379 U.S. 306. In voiding respondent’s pre-enactment con­
viction, the Court of Appeals for the Fifth Circuit merely 
applied the rule of law formulated in Hamm to the facts 
of the case before it.

II.



6

CONCLUSION

Respondent respectfully submits that the Petition for 
Writ of Certiorari to the Court of Appeals for the Fifth 
Circuit be denied.

Respectfully submitted,

J ack  G reenberg  
J am es M . N abrit , III 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

H oward M oore, J r .
D onald L. H ollow ell

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

Attorneys for Respondent

S h e il a  R u s h  
Of Counsel



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