Henry v. Virginia Petition for Writ of Certiorari to the Supreme Court of Appeals of Virginia

    I n  THE

Supreme dmtrt nf %  Itutefc States
October T eem, 1961 

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

L awrence George H enry and Dion T yrone Diamond.

-v .—

Petitioners,

Commonwealth op V irginia,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

Otto L. T ucker
901 Princess Street 
Alexandria, Virginia

H erbert 0 . R eid

1500 Newton Street, N. E. 
Washington, D. C.

Attorneys for Petitioners

T hurgood Marshall 
J ack Greenberg 
E lwood H. Chisolm 
J ames M. Nabrit, III

Of Counsel



I N D E X

PAGE

Opinion Below........ ..................................    1

Jurisdiction ........................     1

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

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

Statement .............................................................   3

How the Federal Questions VvTere Raised and Decided .. 5

Reasons for Granting the W rit....................................  9

I. The public importance of the issues presented......  9

II. Constitutional questions resolved by the Court be­
low in conflict with or in advance of this Court’s
decisions ...................................................-........-.....  12

A. The decision below affirming a criminal con­
viction procured by interpreting and ap­
plying the state’s “Trespass after Warning” 
statute as eliminating any requirement of 
“scienter” or “mens rea” conflicts with deci­
sions of this Court and resolves important 
constitutional questions not yet determined 
by this Court ..................................................

B. The decision below affirming these convic­
tions is in conflict with prior decisions of 
this Court prohibiting racially discrimina­
tory state action ...........................................

12

21



11

C. The decision below affirming these convic­
tions is in conflict with or in advance of this 
Court’s decisions prohibiting unwarranted 
state interference with the exercise of rights 
protected by the Fourteenth Amendment .... 25

Conclusion ....................................................................  31

Appendix .................................................................  la

Table of Cases

Albertson v. Millard, 345 U. S. 242 ...................... .......... 12
Allgeyer v. Louisiana, 165 U. S. 578, 17 S. Ct. 427,

41 L. ed. 832 ................................................................  29
Avent v. North Carolina, Pet. for cert, filed, 29 U. S. L. 

Week 3336 (No. 943, 1960 Term, renumbered No. 85,
1961 Term) ................................................................. 11

Barrows v. Jackson, 346 U. S. 249 ................................  23
Bates v. Little Bock, 361 U. S. 516  ..... ......................  28
Bolling v. Sharpe, 347 IT. S. 497 .................................- 29
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir. 1960) ................................................................. - 12
Briggs v. State, Ark. Sup. Ct. (No. 4992) ..... ................  11
Briscoe v. Louisiana, cert, granted Id. (No. 618, 1960

Term, renumbered No. 27, 1961 Term) .....................  11
Briscoe v. State, 341 S. W. 2d 432 (Tex. Crim. App.

1960) .............................. ............................................- 11
Buchanan v. Warley, 245 IT. S. 60 ..................................  22
Burstyn v. Wilson, 343 IT. S. 495 ...................................  27
Burton v. Wilmington Parking Authority, 365 IT. S. 715 23

Cantwell v. Connecticut, 310 IT. S. 296 .........................20, 26
Chaplinsky v. New Hampshire, 315 IT. S. 568 .............. 26

PAGE



Civil Bights Cases, 109 U. S. 3 .......................................  23
Cole v. Arkansas, 339 U. S. 196.......................................  16
Commonwealth v. Richardson, 313 Mass. 632 .......... . 20
Connally v. General Const. Co., 269 U. S. 385 .............. 19
Cooper v. Aaron, 358 IT. S. 1 ..... ................................. 13, 23
Crossley v. State, 342 S. W. 2d 339 (Tex. Crim. App.

1961) ........... ...... ............... ..........................................  11
Cunningham v. Beagle, 135 IT. S. 1 (1890) .................  25

Davis v. Balson, 133 U. S. 333 .......................................  26
DeJonge v. Oregon, 299 IT. S. 353 ......... .......... ...... ......... 26
Drews v. State, 167 A. 2d 341 (Md. 1961), jurisdictional 

statement filed 29 U. S. L. Week 3286 (No. 840, 1960
Term; renumbered No. 71, 1961 Term) .....................  11

DuBose v. City of Montgomery, 217 So. 2d 845 (Ala. 
App. 1961) ....- ...... .......... .................... .............. ......... 11

Evers v. Dwyer, 358 IT. S. 202 ............... ..................... 22

First National Bank of Guthrie Center v. Anderson,
269 U. S. 341................................................................  13

Fox v. North Carolina, Pet. for cert, filed, Id. (No. 944,
1960 Term; renumbered No. 86, 1961 Term) ..............  11

Freeman v. Retail Clerks Union, 45 Lab. Rel. Ref. Man.
2334 (Wash. Super. Ct. 1959) ...................................  28

Garner v. Louisiana, cert, granted 29 U. S. L. Week 
3276 (No. 617, 1960 Term; renumbered No. 26, 1961
Term) ...................... .......... ........................................  11

Gayle v. Browder, 352 U. S. 903, aff’g 142 F. Supp. 707
(M. D. Ala. 1956) ... ............ .................................. ..... . 22

Gibson v. Mississippi, 162 U. S. 565 ......................... . 21
Griffin v. Md., Pet. for cert, filed Aug. 4, 1961, 287 

(Oct. Term 1961) decided June 8, 1961 (Md. Ct. App.
No. 248, Sept. 1960 Term) .......................................... 11

Ill

PAGE



1Y

Griffin v. State, 351 U. S. 12.................................... ...... 16

Hall v. Commonwealth, 188 Va. 72 ............................ 13,19
Herndon v. Lowry, 301 U. S. 242 .................. ................. 20
Holmes v. City of Atlanta, 350 U. S. 879 .....................  22
Hoston v. Louisiana, cert, granted, Id. (No. 619, 1960 

Term; renumbered No. 28, 1961 Term) .....................  11

Johnson v. State, 341 S. W. 2d 434 (Tex. Crim. App.
1960) ............ ..................................... ....... ..... ............  11

Jones v. Opelika, 319 U. S. 103............................. ......... 26
Jordan v. DeGeorge, 341 U. S. 223 ............................ . 20

King v. City of Montgomery, 128 So. 2d 340 (Ala. App.
1961) ................... ............................... ........................ 11

King v. State, 119 S. E. 2d 77 (Ga. 1961) ................... . 11
Kotch v. Board of River Port Pilot Com’rs., 330 U. S.

552, 67 S. Ct. 910, L. ed. 1093 .......................................  24

Lambert v. California, 355 U. S. 225 ............................  15
Lanzetta v. New Jersey, 306 U. S. 451 ......................... 19

Marsh v. Alabama, 326 U. S. 501............................ 14, 25, 27
Martin v. State, 118 S. E. 2d 233 (Ga. App. 1961) ___  11
Martin v. Struthers, 319 U. S. 141................................13, 27
Morisette v. U. S., 342 U. S. 246 ...................................  15
Munn v. Illinois, 94 U. S. 113 .......................................  28
Murdock v. Pennsylvania, 319 U. S. 105......................... 26

N. A. A. C. P. v. Alabama, 357 U. S. 449 .....................27, 28
National Labor Relations Board v. Babcock and Wilcox

Co., 351 H. S. 105........................................ ................. 28
Near v. Minnesota, 283 U. S. 697 ...................................  26

PAGE



V

Patterson v. Colorado, 205 U. S. 454 ............................  26
People y. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 277 (1948) 28

Ealey v. Ohio, 360 U. S. 423 .......................................12,19
Eandolpli v. Commonwealth, Pet. for cert., filed 30 U. S.

L. Week, 3040 (No. 248, Oct. Term 1961) ................. 3,11
Bepublic Aviation Corp. v. National Labor Relations

Board, 324 U. S. 793, note 6 .......................................  28
Rucker v. State, 341 S. W. 2d 434 (Tex. Crim. App.

1960) .......................................................... - ............... 11
Rucker v. State, 342 S. W. 2d 325 (Tex. Crim. App.

1961) ...........................................................................  11

Samuels v. State, 118 S. E. 2d 231 (Ga. App. 1961) ......  11
Scull v. Virginia, 359 U. S. 344 ........................ ............. - 20
Shelley v. Kraemer, 334 U. S. 1 ................................. - 23
Slagle v. Ohio, 366 IT. S. 259 „.......................................  12
Smith v. California, 361 U. S. 147 ... ................................  15
State Athletic Commission v. Dorsey, 359 U. S. 533,

aff’g 168 F. Supp. 149 (E. D. La. 1958) ..................... 22
State ex rel. Steele v. Stoutamire, 119 So. 2d 792 (Fla.

1960) ................... ............................................ - .........  11
Steele v. City of Tallahassee, 120 So. 2d 619 (Fla. 1960) 11
Steele v. City of Tallahassee, cert. den. 29 U. S. L. Week

3263 (No. 671, 1960 Term) ........................ ................ 11
Stromberg v. California, 283 U. S. 359 .......... ..............  27

Thornhill v. Alabama, 310 U. S. 88 ................................ 27
Tucker v. State, 341 S. W. 2d 433 (Tex. Crim. App. 

1960) ......... .................................................................  11

United States v. L. Cohen Grocery, 255 U. S. 81 ..........  19
United Steelworkers v. National Labor Relations 

Board, 243 F. 2d 593 ................................................ - 28

PAGE



VI

Valle v. Stengel, 176 F. 2d 697 ..... ........ ..........................  29

Walker v. State, 118 S. E. 2d 284 (Ga. App. 1961) ...... 11
Watkins v. United States, 354 U. S. 178......................... 20
Watson v. Jones, 13 WAll. 679 .......................................  26
Wieman v. Updegraff, 344 U. S. 183............................  20
Williams v. North Carolina, Pet. for cert, filed 29 

U. S. L. Week 3319 (No. 915, 1960 Term; renum­
bered No. 82, 1961 Term) ..................... ...................  11

Winters v. New York, 333 U. S. 507 .........................19, 20
Wise v. Commonwealth, 98 Va. 837 ............................ 17,18

Yiek Wo v. Hopkins, 118 U. S. 356 ............................ 22, 25

PAGE

Other Authorities:

A Bibliography of the Student Movement Protesting 
Segregation and Discrimination, Tuskegee Institute, 
Alabama, 1960 ...........................................................  10

Dime Store Demonstration Events and Legal Problems 
of the First Sixty Days, 1960, Duke Law Journal 315 
(1960) .......................................................................... 10

Hall, Jerome, General Principles of Criminal Law (2nd 
Ed.) 1960, pp. 70-71 ..............   15

Lunch Counter Demonstrations: State Action and the 
Fourteenth Amendment, 47 Va. L. Rev. 105................  10

Mueller, On Common Law Mens Rea, 42 Minn. L. Rev.
1043 .............................................................................  15

Newsweek, August 7, 1961, p. 26 ................................. 10
New York Times, October 18, 1960, p. 47, col. 5 (late 

city edition) ............................................................... 10



vn

New York Times, July 30, 1961.....................................  10
New York Times, August 13, 1961, pp. 56 and 4 2 ......  10
Perkins, Prof. M., Criminal Law (1957) pp. 681-683 ..15,19
Sayre, Public Welfare Offenses, 33 Col. L. Rev. 55 

(1933) .........................................................................  16
Washington Post, July 1, 1960 and August 21, 1960 .... 9

Statutes:

Dallas, Texas 1960 Ordinance (6 Race Rel. L. Rep. 317) 12
Louisiana Acts, 1960, Nos. 70, 77, 80 ............................  12
Six Race Relations Law Reporter, No. 1, p. 2 ..........  10
South Carolina Acts, 1960 No. 743 ..............................  12
Title 28 U. S. C. 1257(3) ..............................................  2
Virginia Acts, 1960, ch. 97..............................................  12
Virginia Code 1950 [1960 Amendment] Sec. 18.1-172 .... 17
Virginia Code 1950 [1960 Amendment] See. 18.1-173

3,4,13,17

PAGE



I n  the

§>npvmt tour! of %  Ittitpib States
October T erm, 1961 

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

L awrence George H enry and Dion Tyrone Diamond,

Petitioners,
—v.—

Commonwealth oe Virginia,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

Petitioner prays that a writ of certiorari issue to review 
the judgments of the Supreme Court of Appeals of Virginia 
entered April 25, 1961, in the above-entitled cause.

Opinion Below

The Supreme Court of Appeals of Virginia issued the 
orders complained of without opinion. The orders are ap­
pended hereto, infra at pages la, 2a.

Jurisdiction

The judgments sought to be reviewed are those of the 
Supreme Court of Appeals of Virginia, dated April 25, 
1961, refusing petitions for writs of error and supersedeas 
to review judgments rendered against petitioners by the



2

Circuit Court of Arlington County, Virginia, on November 
3, 1960, in a prosecution for criminal trespass (infra pages 
la, 2a). The effect of the denial of the petitions for writs 
of error and supersedeas is to affirm said judgments.

On July 19, 1961, the time for filing a petition for writ 
of certiorari was extended by Mr. Justice Clark to and 
including August 23, 1961.

The jurisdiction of this Court to review the judgment 
below rests on Title 28 U. S. C. § 1257(3).

Q uestions P resen ted

1. Whether the State criminal trespass statute inter­
preted and applied in the instant case so as to eliminate 
any requirement of scienter or mens rea is violative of 
the due process clause of the Fourteenth Amendment.

2. Whether the due process and equal protection clauses 
of the Fourteenth Amendment permit the state to use its 
executive and judiciary to enforce the racially discrimina­
tory practices of a business which has opened its property 
to the general public by invoking the state criminal trespass 
statute to enforce such racial discrimination within the 
same property.

3. Whether the convictions obtained below infringe 
rights of expression and of association and the right to 
contract and to secure property, and to otherwise enjoy the 
liberties of free men, which are guaranteed by the Four­
teenth Amendment.



3

S tatu to ry  and  C onstitu tional P rov isions Involved
1. These cases involve § 1 of the Fourteenth Amendment 

to the Constitution of the United States.

2. These cases also involve the following provision of 
the Code of Virginia (1950, as amended 1960):

§ 18.1-173. Trespass after having been forbidden to 
do so.—If any persons shall without authority of law 
go upon or remain upon the lands, buildings or prem­
ises of another, or any part, portion or area thereof, 
after having been forbidden to do so, either orally or 
in writing, by the owner, lessee, custodian or other 
person lawfully in charge thereof, or after having 
been forbidden to do so by a sign or signs posted on 
such lands, buildings, premises or part, portion or area 
thereof at a place or places where it or they may be 
reasonably seen, he shall be deemed guilty of a misde­
meanor, and upon conviction thereof shall be punished 
by a fine of not more than one thousand dollars or by 
confinement in jail not exceeding twelve months, or 
by both such fine and imprisonment. (Portions itali­
cized added by 1960 amendment.)

Statem ent

These cases like the “Richmond Student Protest Cases” 
filed in this Court on July 22, 1961, Randolph v. Common­
wealth of Virginia, 30 U. S. Law Week 3040 (No. 248, Oct. 
Term 1961), involve the issue of whether the Virginia tres­
pass statute may be used to convict Negroes previously 
admitted to a restaurant, and permitted to purchase ar­
ticles to take out, but refused food service at a counter 
solely because of their race, for failure to leave the prem­
ises when told to do so.



4

On the 10th day of June, 1960, petitioners went into How­
ard Johnson’s Restaurant in Arlington County where they 
purchased and requested receipts for popcorn, chewing 
gum and candy from an assistant manager at a counter 
where these items were displayed and the cash register 
was located (Tr. 6). One of the petitioners sat down at the 
counter and was asked to leave by the manager (Tr. 3, 19). 
A police officer, who was sitting at the other end of the 
counter, was asked by the manager to take petitioners out 
(Tr. 4, 11). The manager had requested the petitioners 
to leave and asked for the aid of the police because he 
believed that there was a law prohibiting the restaurant 
from serving colored people (Tr. 15). Petitioners were 
well-mannered and conducted themselves properly (Tr. 13, 
15, 20); they were asked to leave solely because of race 
(Tr. 17). They refused to do so and were arrested (Tr. 19).

The warrants of arrest, obtained and sworn to by Lieu­
tenant E. A. Summers and Officer Donald W. Pelassaro 
of the Arlington County Police Department, charged peti­
tioners for failing to leave the premises of Howard John­
son’s Restaurant, 4700 Lee Highway, Arlington, Virginia, 
after having been requested to do so by the person lawfully 
in charge thereof, in violation of Title 18.1-173, Virginia 
Code 1950 (1960 Amendment) (R. 1, 2).

Petitioners’ cases were consolidated and tried together 
on October 31, 1960, before a jury in the Circuit Court of 
Arlington County (Tr. 1). Various federal constitutional 
defenses were made throughout (R. 17, 18, 19, 20) and at 
the close of (R. 18, 20) the trial, but were overruled. The 
jury found both petitioners guilty as charged and fixed 
punishment at $25.00 fines (R. 18, 20).

On application to the Supreme Court of Appeals of 
Virginia, that Court, by a judgment or order, dated April 
25, 1961, denied their petitions for writs of error and



5

supersedeas and thus affirmed the judgment of convictions 
below (Appendix, infra, la, 2a).

How th e  F edera l Q uestions W ere R aised an d  D ecided

At the conclusion of the evidence for the Commonwealth, 
the petitioners “moved the Court to strike the evidence of 
the Commonwealth of Virginia, which said motion the 
Court denied and to which said ruling of the Court the 
(petitioners) excepted” (R. 17, 19). The reasons assigned 
by the petitioners were as follows:

First, that, if this statute does not require proof of 
“scienter” or “mens rea,” the statute is unconstitutional; 
and, on the other hand, if the statute does require “scienter” 
or “mens rea,” the Commonwealth failed to produce evi­
dence that petitioners did not have a bona fide belief or 
claim of right and; therefore, that any conviction obtained 
without proof of this element would be violative of the due 
process clause of the Fourteenth Amendment (Tr. 25-26).

The second reason assigned by the petitioners in support 
of their motion to strike was that application and enforce­
ment of Virginia’s criminal trespass statute was use of the 
state’s criminal process in a manner which fostered, imple­
mented and enforced discrimination and exclusion on the 
basis of race in violation of the Fourteenth Amendment. 
The instant owner in pursuing a policy of denying service 
to all Negroes was not exercising any individual choice 
which he may or may not have to select or reject particu­
lar customers, but on the contrary the owner in the first 
instance was engaging in a racial classification as to an 
identified group because he believed compelled by law, 
custom, or fear of economic reprisals by other potential 
customers. When the owner sought and received the aid 
of the state to effectuate this policy and practice of racial



6

classification, discrimination and exclusion, such state ac­
tion violated the Fourteenth Amendment.

The remaining reason assigned in support of petitioners’ 
motion to strike was that application and enforcement of 
the criminal trespass statute under circumstances here 
where petitioners had entered the premises, made certain 
purchases, amounted to unwarranted state interference 
with the exercise of their constitutional rights protected 
by the Fourteenth Amendment.

Following argument by the Commonwealth’s attorney in 
opposition thereto (Tr. 28-31), the court rendered an oral 
opinion which specifically treated and overruled each of 
these contentions (Tr. 31-34).

Subsequently, at the close of petitioners’ case and during 
argument with respect to proposed instructions, their mo­
tion to strike the Commonwealth’s evidence was renewed 
on the grounds previously assigned and again it was denied 
(Tr. 56). Moreover, over petitioners’ objections, the court 
accepted Instruction 2 of the Commonwealth and refused 
Instruction E of petitioners (Tr. 55, 56)—the former ex­
cluding and the latter including the element of “mens rea” 
or “scienter” (see R. 7, 14; Tr. 57). At this juncture the 
court said (Tr. 56):

“Well, I don’t know whether it comes too late or not, 
but it is going to be refused. I have not changed my 
mind about it. I said that the gist of it lies in In­
struction E that was refused, and Instruction 2 that 
was granted. I can see that is a really important ques­
tion.

As I indicated before, I do not find any cases which 
support the defendant’s theory. The closest I can come 
to is the Barrows versus Jackson, and I do not think it 
goes this far, and I am not willing to go this far, unless



7

the Supreme Court says we have to go this far. I  do 
not think the Supreme Court says that we have to 
go this far.
We have a conflict here of rights under the Fourteenth 
Amendment, and we have a conflict of property rights.”

Again, after submission of the case to the jury, the court 
denied petitioners’ federal contentions when the jury re­
turned to the courtroom for further instructions, viz. (Tr. 
61-62):

Jury Foreman: Your Honor, some of the jurymen 
have a question or two that probably if we understood 
might help us get to a fairly quick resolution of the 
problem. There are two questions.

The Court: Proceed.
Jury Foreman: The first one is, as used in Instruc­

tion 2, what does “authority of law” mean?
The Court: It means some writ of Court or some 

writ of tenancy or some legal right of that sort, some 
right of entry.

Jury Foreman: Right of entry?
The Court: Some legal writ of entry or some right 

of a tenant, some person who has the right of the 
property.

Jury Foreman: The second question is: Does
“trespassing” mean that a person can be asked to leave 
a restaurant such as Howard Johnson’s, serving the 
public, without cause?

The Court: Yes, sir.
Jury Foreman: Thank you.

To such further instructions, petitioners objected and noted 
an exception (Tr. 62).



8

After the verdict was rendered and the jury discharged, 
petitioners moved to set aside the verdict of the jury 
as contrary to the law and the evidence and without evi­
dence to support it (Tr. 63). In disposing of this matter 
adversely to the petitioners, the court observed (Tr. 63):

On the evidence, I don’t think it is contrary to the 
evidence. It seems to me it would be futile to argue 
that.

I  think there are two legal questions here, but it 
seems to me it has already been argued. One of them 
is the question the jury just asked. The other one, 
which is closely analogous to the covenant case and 
how far the Court is going to go in that direction, on 
the grounds stated, is contrary to the law and evidence.

The Court further stated (Tr. 66) :
I consider two sections here. I do not consider that 
one too seriously, the one about how far they are going 
to go in this thing which the Supreme Court says is 
a right, but you cannot enforce it in a Court, as they 
said in the restriction or covenant case, how far they 
are going to go. They haven’t gone quite this far yet, 
and I do not know that they ever will. Maybe they 
will. Maybe they will do it just like you asked them to. 
But certainly you do not have any case that says that 
they will go that far. The farthest I have seen them 
go is Barrows against Jackson.
The second is the question the jury asked me, and you 
do not have any case citing that.

So if you want some new law made, you will have to 
get it made somewhere else.
The motion is denied.

The Notice of Appeal and Assignments of Error prop­
erly preserved the various federal constitutional questions



9

raised in the trial court (R. 26). The petition for writ of 
error and supersedeas to the Supreme Court of Appeals 
of Virginia properly presented the same for decision. The 
Supreme Court of Appeals of Virginia disposed of these 
questions by a judgment or order summarily refusing said 
writ of error and supersedeas (R. 69, 70).

R easons fo r  G ran ting  th e  W rit

These cases involve substantial questions affecting con­
stitutional rights of great public importance resolved by 
the court below in conflict with principles expressed by 
this Court or in advance of determination by this Court.

I.

T he pub lic  im portance  o f th e  issues p resen ted .

The instant cases arise out of the proliferating “sit-in” 
demonstrations and raise federal questions of great public 
importance undecided by this Court. These petitioners 
were two of the student leaders who led the successful 
“sit-in” demonstrations against the denial of equal treat­
ment in public places of accommodation in that part of the 
greater Washington Metropolitan area located in Virginia 
and Maryland. Even though their activity, in conjunction 
with others, achieved a substantial change in the racial 
discriminatory policies and practices in the area,1 these 
petitioners were involved in many arrests and convictions 
in Maryland and in the instant cases in Virginia.

Although the “sit-in” demonstrations against discrimina­
tion in, and exclusion from, public places of accommoda­
tions “received widespread approval, many demonstrations

1 Washington Post, July 1, 1960 and August 21, 1960.



10

resulted in arrests of persons involved, and, since many of 
the convictions have been appealed, serious constitutional 
questions have been raised.” 2 These demonstrations, be­
ginning in February, 1960, spread quickly throughout the 
South and into other sections of the Country,3 and involved, 
during the past year, thousands of students nationally in 
activity similar to that for which the petitioners have been 
convicted.4

In a large number of places, this nationwide protest has 
prompted startling changes in the practices of racial dis­
crimination and exclusion in places of public accommodation 
with the result that service is now afforded in many addi­
tional areas on a non-segregated basis. The number of 
cities, prompted by these demonstrations, opening facili­
ties on a non-segregated basis was at one time reported as 
112, New York Times, October 18, 1960, page 47, col. 5 
(late city edition). However, this figure is daily increasing 
with announcements like those from Atlanta, New York 
Times, July 30, 1961 and August 13, 1961, pages 56 and 42 
respectively, and Dallas, Newsweek, August 7, 1961, page 
26.

Despite widespread gains in non-discriminatory treat­
ment at places of public accommodation which enhanced the 
Country’s prestige internationally, most of these demon­
strations, as in the case at bar, have culminated in arrests 
and criminal prosecutions which variously present as un­
derlying questions the issues presented herein. Many of 
these cases have already reached the appellate courts of

2 Lunch Counter Demonstrations: State Action and the Four­
teenth Amendment, 47 Va. L. Eev. 105. For a concise treatment of 
the history and magnitude of these demonstrations see ibid.; see 
also Pollitt, Dime Store Demonstration Events and Legal Problems 
of the First Sixty Days, 1960, Duke Law Journal 315 (1960).

3 6 Race Relations Law Reporter, No. 1, p. 2.
4 A Bibliography of the Student Movement Protesting Segrega­

tion and Discrimination, Tuskegee Institute, Alabama, 1960.



11

Louisiana,5 North Carolina,6 Florida,7 Maryland,8 Arkan­
sas,9 Alabama,10 Georgia,11 South Carolina,12 Texas,13 and 
Virginia;14 countless others are at the trial level in those 
states and, additionally, in Kentucky, Tennessee, West 
Virginia and Mississippi.

5 E.g., Gamer v. Louisiana, cert, granted 29 U. S. L. Week 3276 
(No. 617, 1960 Term; renumbered No. 26, 1961 Term) ; Briscoe v. 
Louisiana, cert, granted, Id. (No. 618, 1960 Term; renumbered No. 
27, 1961 Term); Boston v. Louisiana, cert, granted, Id. (No. 619, 
1960 Term; renumbered No. 28, 1961 Term).

6 E.g., Avent v. North Carolina, petition for cert, filed, 29 U. S. L. 
Week 3336 (No. 943; 1960 Term; renumbered No. 85, 1961 Term); 
Fox v. North Carolina, petition for cert, filed, Id. (No. 944, 1960 
Term; renumbered No. 86, 1961 Term); Williams v. North Caro­
lina, petition for cert, filed 29 U. S. L. Week 3319 (No. 915, 1960 
Term; renumbered No. 82, 1961 Term).

7 E.g., Steele v. City of Tallahassee, cert, denied 29 U. S. L. Week 
3263 (No. 671, 1960 Term); Steele v. City of Tallahassee, 120 So. 
2d 619 (Fla. 1960); State ex rel. Steele v. Stoutamire, 119 So. 2d 
792 (Fla. 1960).

8 E.g., Griffin v. Maryland, petition for cert, filed Aug. 4, 30 U. S. 
L. Week 3058 (No. 287, 1961 Term) ; Drews v. State, 167 A. 2d 341 
(Md. 1961), jurisdictional statement filed 29 U. S. L. Week 3286 
(No. 840, 1960 Term; renumbered No. 71, 1961 Term).

9 E.g., Briggs v. State, Ark. Sup. Ct. (No. 4992) with which 
Smith v. State (No. 4994) and Lupper v. State (No. 4997) have 
been consolidated.

10 E.g., DuBose v. City of Montgomery, 127 So. 2d 845 (Ala. App. 
1961); cf. King v. City of Montgomery, 128 So. 2d 340 (Ala. App. 
1961).

“ E.g., Samuels v. State, 118 S. E. 2d 231 (Ga. App. 1961); 
Martin v. State, 118 S. E. 2d 233 (Ga. App. 1961) ; Walker v. State, 
118 S. E. 2d 284 (Ga. App. 1961); cf. King v. State, 119 S. E 2d 
77 (Ga. App. 1961).

12 E.g., see Petition for Cert., p. 27 note 15, Briscoe v. Louisiana, 
supra, note 5.

13 E.g., Crossley v. State, 342 S. W. 2d 339 (Tex. Grim. App. 
1961); Rucker v. State, 342 S. W. 2d 325 (Tex. Grim. App. 1961) • 
Briscoe v. State, 341 S. W. 2d 432 (Tex. Crim. App. 1960) ; Tucker 
v. State, 341 S. W. 2d 433 (Tex. Crim. App. 1960) ; Johnson 
v. State, 341 S. W. 2d 434 (Tex. Crim. App. 1960); Rucker v. State, 
341 S. W. 2d 434 (Tex. Crim. App. 1960).

14 Randolph v. Commonwealth, petition for cert, filed 30 U S L 
Week 3040 (No. 248, Oct. Term 1961).



12

Beyond the multiplicity of litigation which has resulted 
from these student demonstrations, they have created new 
problems for local law enforcement authorities15 and they 
have spurred the enactment of new laws or more stringent 
amendments to existing laws,16 as in the instant case.

It is therefore of great public importance that this Court 
consider the issues presented herein so that the courts 
below, and people everywhere, can be authoritatively ap­
prised regarding the constitutional limitations on state 
prosecutions of young people for engaging in this type of 
activity in order to secure that equality enjoyed by other 
free people. Slagle v. Ohio, 366 U. S. 259; Raley v. Ohio, 
360 U. S. 423.

II.
C onstitu tional questions reso lved  by th e  C ourt below 

in conflict w ith o r in  advance o f th is C ourt’s decisions.

A. The decision below affirming a criminal convic­
tion procured by interpreting and applying the 
state’s “Trespass after Warning” statute as elimi­
nating any requirement of “ scienter” or “mens 
rea” conflicts with decisions of this Court and re­
solves important constitutional questions not yet 
determined by this Court.

While the interpretation of state legislation is primarily 
the function of state authorities, judicial and administra­
tive, the construction given a state statute by the state 
courts is only binding upon the federal courts as to the 
meaning of the construed provisions. Albertson v. Millard,

16 Cf. Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th Cir. 
1960).

16 E.g., see Va. Acts, 1960, eh. 97; see S. C. Acts, 1960, No. 743; 
La Acts, 1960, Nos. 70, 77, 80; Dallas, Tex., 1960 Ordinance (6 Race 
Eel. L. Rep. 317).



13

345 U. S. 242. The supremacy of the Constitution, as well 
as this Court’s ultimate authority in the exposition of the 
law of the Constitution, is clearly established. Cooper v. 
Aaron, 358 U. S. 1. This Court has announced as its duty 
ultimately to pass on the substantive sufficiency of a claim 
of federal right. First National Bank of Guthrie Center 
v. Anderson, 269 U. S. 341.

Preliminary to the completion of the Commonwealth’s 
case, petitioners did not make any motions attacking the 
validity of Title 18.1-173 of the Virginia Code or the in­
dictment thereunder, relying upon the authority of Hall v. 
Commonwealth, 188 Va. 72, and Martin v. Struthers, 319 
U. S. 141. In Hall v. Commonwealth, supra, the Virginia 
Court of Appeals, while passing upon the validity of this 
section (prior to the 1960 amendment), concluded that there 
was nothing in this section, when properly applied, which 
infringed upon the guarantees of the Fourteenth Amend­
ment.17

Upon the completion of the Commonwealth’s case, peti­
tioners, thereafter, and at every available procedural op­
portunity, sought to assert that their federal rights were 
being violated by an interpretation and application of this 
section of the Code which eliminated any requirement of 
“scienter” or “mens rea” for a conviction (supra, pp. 5-9). 
That this precise issue was clearly drawn is indicated by 
argument of counsel for petitioners and the Commonwealth, 
by the jury’s request for further instruction, and by the 
various adverse rulings of the trial court, to which proper 
exceptions were taken. The trial court’s position in this 
matter, which now stands affirmed by the Supreme Court

17 See Martin v. Struthers, supra. The reference by this Court in 
notes 10 and 11 of the Martin case, supra, 147, to the Virginia 
“Trespass After Warning” statute, as well as to similar statutes in 
other states, is no authority for the instant interpretation and appli­
cation.



14

of Appeals of Virginia, was that a violation of this section 
occurred when the owner, or person in charge, requested 
another to withdraw from the premises and such other 
failed to comply. The sum of the trial court’s rulings was 
that a conviction was proper where the evidence merely 
established a request by the owner, or person in charge, to 
withdraw from the premises, given to anyone upon the 
premises without authority of law. The court instructed 
the jury that the meaning of the phrase “authority of law” 
contained in the statute meant “some legal writ of entry 
or some right of a tenant, some person who had the right 
of the property” (Tr. 61-62). The court further instructed 
the jury that a person could be requested “to leave a res­
taurant such as Howard Johnson’s, serving the public, with­
out cause” and that evidence of such refusal, without more, 
was sufficient to sustain a conviction.

The decision below affirming the conviction is an adverse 
determination of petitioners’ claim that the instant inter­
pretation and application of this trespass statute by state 
courts, excluding as an element of the crime any require­
ment of “scienter” or “mens rea”, was violative of the 
rights guaranteed by the Fourteenth Amendment. Mr. Jus­
tice Frankfurter’s statement in his concurring opinion in 
Marsh v. Alabama, 326 IT. S. 501, 510, is thus apropos 
to the present posture of this matter:

“But when decisions by state courts involving local 
matters are so interwoven with the decision of the 
question of Constitutional rights that one necessarily 
involves the other, state determination of local ques­
tions cannot control the Federal Constitutional right.”

This petition seeks to present to this Court for its de­
termination the question of whether the Commonwealth’s 
instant interpretation and application of this statute is 
permissible under the Constitution.



15

This Court has held that there are constitutional limita­
tions upon the legislature in enacting and the judiciary in 
interpreting and applying statutes so as to eliminate any 
requirement of “scienter” or “mens rea” as a prerequisite 
to criminal punishment. Morisette v. V. S., 342 IT. 8. 246.18

Where this Court has found that these constitutional lim­
itations have been exceeded the convictions have been set 
aside. Smith v. California, 361 IT. S. 147; Lambert v. Cali­
fornia, 355 IT. S. 225; Morisette v. TJ. S., supra. In apply­
ing these decisions it should be remembered that “scienter”, 
“mens rea” or “knowledge” refer to actual distinctive states 
of mind varying, of course, with the particular offense. 
Jerome Hall, General Principles of Criminal Lain (2nd 
Ed.) 1960, pp. 70-71. As Professor M. Perkins, Criminal 
Law (1957) pp. 681-683, has suggested, since “scienter” 
and “mens rea” are frequently employed as synonyms, and 
since they have also been employed as a synonym of knowl­
edge, the need, therefore, is to search for the state of mind, 
or states of mind, which the courts have spoken of as 
“knowledge.”

Though the distinctive states of mind which this Court 
has found necessary vary with the particular offense, and 
though these distinctive states of mind may be referred to 
as “knowledge,” “mens rea,” “scienter,” or in other terms, 
the decisions of this Court establish that there are Con­
stitutional limitations on the power to eliminate “state of 
mind” as an element of criminal conduct. The dissenting 
Judges in Lambert v. California, supra, acknowledge, with 
the majority, such limitations but only disagreed as to 
whether the statute in question has transgressed the per­
missible limits.

18 Mueller, On Common Law Mens Rea, 42 Minn. L. Rev. 1043, 
observes that the “opinion by Mr. Justice Jackson ended the 
spreading development of criminal liability without fault . . . ”



16

No justification has been proposed by the Commonwealth, 
and it is submitted that none exist, for treating this offense 
of trespass to land under the heading of “public welfare 
offenses,” 19 or under that category of offenses where this 
Court has approved strict liability. Permitting the ap­
plication of the doctrine of strict liability to this trespassory 
offense would signal a substantial alteration in the field 
of criminal law and would imperil and undermine presently 
existing constitutional safeguards on the exercise of the 
state’s police power to punish for crime.

Whether the interpretation and application of the statute 
here in a manner creating strict liability exceeded the due 
process limitations suggested by this Court frequently 
under the descriptive mental state of “knowledge,” the in­
terpretation and application here was arbitrary and dis­
criminatory. Griffin v. State, 351 U. S. 12, 18; Cole v. 
Arkansas, 339 U. S. 196.

19 Sayre, Public Welfare Offenses, 33 Col. L. Rev. 55 (1933). 
Professor Sayre’s eight general categories may be summarized as 
follows:

“ (1) Illegal sales of intoxicating liquor;
(a) sales of prohibited beverage;
(b) sales to minors;
(c) sales to habitual drunkards;
(d) sales to Indians or other prohibited persons;
(e) sales by methods prohibited by law;

(2) Sales of impure or adulterated food or drugs;
(a) sales of adulterated or impure milk;
(b) sales of adulterated butter or oleomargarine;

(3) Sales of misbranded articles;
(4) Violations of anti-narcotic acts;
(5) Criminal nuisances;

(a) annoyances or injuries to the public health, safety, 
repose, or comfort;

(b) obstructions of highways;
(6) Violations of traffic regulations;
(7) Violations of motor-vehicle laws;
(8) Violations of general police regulations, passed for the 

safety, health, or well-being of the community.”



17

It was arbitrary for the court below to refuse to apply 
the law announced in Wise v. Commonwealth, 98 Va. 837, 
to the instant case. Each of these petitioners was charged 
wTith a violation of Title 18.1-173, Virginia Code 1950 
(1960 Amendment) (supra, p. 3) in the following pertinent 
language:

“that (petitioners) did, on the 10th day of June, 1960, 
in said County without the authority of law, remain 
upon the premises of another, after having been for­
bidden to do so, either orally or in writing by the 
person lawfully in charge thereof, unlawfully and 
against the peace and dignity of the Commonwealth.” 
(Emphasis supplied) (E. 1, 2).

In Wise v. Commonwealth, supra, the defendant was 
charged with a violation of what is now Title 18.1-172 
of the Virginia Code.20

These petitioners were charged in the language of “un­
lawfully” as was the defendant in the Wise case. Thus 
the necessary distinctive mental state required for con­
viction of the petitioners was that required in the Wise 
case. These petitioners sought to have the courts below 
apply the same rule of law to them as was applied in the 
Wise case. In the Wise case the Supreme Court of Ap­
peals of Virginia stated in its opinion on pp. 838-839.

“At the trial the prisoner offered, but was not per­
mitted, to prove by counts that this verbal contract

20 §18.1-172. Injuring, etc., any property, monument, etc.—If 
any person, unlawfully, but not feloniously, take and carry away, 
or destroy, deface or injure any property, real or personal, not his 
own, or break down, destroy, deface, injure or remove any monu­
ment erected for the purpose of marking the site of any engagement 
fought during the War between the States, or for the purpose of 
designating the boundaries of any city, town, tract of land, or any 
tree marked for that purpose, he shall be guilty of a misdemeanor. 
Virginia Code 1950 [1960 Amendment].



18

with respect to the disputed land had been trans­
ferred to him. It is not pretended, of course, that 
this verbal contract or understanding passed title, 
but it does bear upon the bonafides of a claim of right 
asserted by the prisoner, and should have been ad­
mitted.”

“The prisoner asked the court to instruct the jury as 
follows: ‘The court instructs the jury, if they believe 
from the evidence that the defendant, John Wise, 
pulled down the fence and left it down under a claim 
of right, believing it to be his own, and believing that 
he had a bonafide right thereto, then the jury shall find 
for the defendant’.”

“This instruction propounds the law correctly, and 
should have been given.” (Emphasis supplied.)

These convictions resulted from a failure to apply the 
same rule of law to these petitioners as was applied in Wise. 
This arbitrary and discriminatory action is a violation of 
decisions of this Court.

In addition, the instant interpretation and application 
arbitrarily eliminated the recognized principle of Anglo- 
American criminal law of concurrence:

“The remaining step in the above indicated stages of 
analysis of criminal conduct concerns situations where 
there was a mens rea and an act and, also, a harm 
of some sort, but still no penal liability because an 
additional material element was missing, namely, the 
fusion of the legally material thought and effort in 
conduct, which Anglo-American criminal law des­
ignates as “concurrence.” The principle of concurrence 
requires that the mens rea (the internal fusion of 
thought and effort) coalesce with the additional mani­



19

fested effort (“act”), that they function externally as 
a unit to comprise criminal conduct. As was previously 
stated, this is a way of making certain that the de­
fendant’s conduct was criminal, i.e. that his conduct 
actually expressed a mens rea, The efforts of pros­
ecutors to established concurrence by invoking the tort 
rule of trespass ab initio, so that a. legal entry would 
be found criminal because of the defendant’s subse­
quent misconduct, have been unsuccessful.” Hall, su­
pra, pp. 185-190.

Likewise, Perkins, supra, p. 725, observes that the doctrine 
of trespass ab initio, firmly entrenched in the law of torts, 
has no application in criminal jurisprudence. The “tres­
pass after warning” statutes came into existence because 
of the principle of concurrence. These statutes created 
an act, “remaining,” which could concur with the nec­
essary state of mind, “after warning.”

The instant interpretation and application by which 
these convictions were obtained makes the statute so vague, 
indefinite, and uncertain as to offend the due process clause 
of the Fourteenth Amendment as construed in applicable 
decisions of this Court. Lametta v. New Jersey, 306 U. S. 
451; Winters v. N. Y ., 333 IT. S. 507. This Court has often 
held that criminal laws must define crimes sought to be 
punished with sufficient particularity to give fair notice 
as to what acts are forbidden. As the Court held in Lan- 
zetta v. N. J., supra, 453, “no one may be required at peril 
of life, liberty or property to speculate as to the meaning 
of penal statutes. All are entitled to be informed as to 
what crimes are forbidden.” See also United States v. L. 
Cohen Grocery, 255 U. S. 81, 89; Connally v. General Const. 
Co., 269 U. S. 385; Raley v. Ohio, supra. The statutory 
provision applied to convict petitioners in this case is so 
vague that it offends the basic notions of fair play in the



20

administration of criminal justice that are embodied in the 
due process clause of the Fourteenth Amendment.

Moreover, the statute punished petitioners’ protest 
against racial segregation practices and customs in the 
community; for this reason the vagueness is even more 
invidious. When freedom of expression is involved the 
principle that penal laws may not be vague must, if any­
thing, be enforced even more stringently. Cantwell v. 
Conn., 310 U. S. 296, 308-311; Scull v. Virginia, 359 U. S. 
344; Watkins v. U. S., 354 U. S. 178; Herndon v. Lowry, 
301 U. S. 242, 261-264.

(1) This statute, as now interpreted and applied, is 
indefinite as to what constitutes a valid right to enter or 
remain. See Commonwealth v. Richardson, 313 Mass. 632.

(2) With “bona fide claim” eliminated as a defense to 
the statute, there are no adequate statutory or other 
guides to inform a reasonable man as to what he may or 
may not do in terms of entering or remaining.

As this Court stated in Winters v. New York, supra, 
520, a case which invalidated on the grounds of vagueness 
a state law applied to limit free expression: “Where a 
statute is so vague as to make criminal an innocent act, 
a conviction under it cannot be sustained”. In this case 
the state has indiscriminately classified and punished in­
nocent actions as criminal. The result is an arbitrary exer­
cise of the state’s power which offends due process. IFie- 
man v. Updegraff, 344 U. S. 183, 191. The decision below 
affirming these convictions is in conflict with decisions of 
this Court testing statutes under the established criteria 
of the “void for vagueness” doctrine. Jordan v. DeGeorge, 
341 IT. S. 223.



21

B. The decision below affirming these convictions is in 
conflict with prior decisions of this Court prohibit­
ing racially discriminatory state action.

The testimony of the state’s own witnesses clearly 
establishes that the two young Negro petitioners went into 
a public restaurant, made certain purchases, but upon 
seating themselves at a counter and requesting service, 
even though persons who entered before, with and after 
the petitioners were served without incident, petitioners 
were denied service and requested by the owner to leave 
the premises because he believed there was a law prohibit­
ing the serving of colored people. It is clear that peti­
tioners were refused service and asked to leave solely 
because they were Negroes and stand convicted as a result 
of the use of the state’s criminal process to effectuate a 
policy and practice of racial discrimination. The peti­
tioners’ race was the only basis for the police officer’s 
command that they leave these premises and for the ar­
rests which followed. Obviously this is the inference which 
the jury had drawn from the evidence when they pro­
pounded the question:

“Does ‘trespassing’ mean that a person can be asked 
to leave a restaurant such as Howard Johnson’s, serv­
ing the public, without cause” (Tr. 61)!

As long ago as Gibson v. Mississippi, 162 U. S. 565, a 
case involving a claim of discrimination in jury procedures, 
this Court stated the broad proposition that racial dis­
crimination in the administration of criminal laws violates 
the Fourteenth Amendment. The court said at 162 U. S. 
565, 591:

“The guaranties of life, liberty, and property are for 
all persons within the jurisdiction of the United States 
or of any state, without discrimination against any



22

because of their race. Those guaranties, when their 
violation is properly presented in the regular course 
of proceedings, must be enforced in the courts, both 
of the nation and of the state, without reference to 
considerations based upon race. In the administration 
of criminal justice no rule can be applied to one class 
which is not application to all other classes.”

This Court has repeatedly struck down statutes and 
ordinances which provided criminal penalties to enforce 
racial segregation. Buchanan v. Warley, 245 U. S. 60; 
Holmes v. City of Atlanta, 350 U. S. 879; Gayle v. Browder, 
352 U. S. 903, affirming 142 F. Supp. 707 (M. D. Ala. 
1956); State Athletic Commission v. Dorsey, 359 U. S. 533, 
affirming 168 F. Supp. 149 (E. D. La. 1958), were all cases 
in which criminal laws used to maintain segregation were 
invalidated. Cf. Evers v. Dwyer, 358 U. S. 202. Likewise, 
in Yick Wo v. Hopkins, 118 U. S. 356, the Court nullified a 
criminal prosecution under a statute which was fair on 
it face but was being administered to effect a discrimina­
tion against a single ethnic group.

While it may be argued by the Commonwealth that in 
this case the racial discrimination against petitioners is 
beyond the reach of the Fourteenth Amendment because it 
originated with the decision of a “private entrepreneur” 
to establish a “white-only” lunch counter in deference to 
local customs and traditions, this is not dispositive of the 
case because it is racial discrimination by agents of the 
Commonwealth of Virginia which affords the primary basis 
for these prosecutions. It was the police officer acting as 
law enforcement representative of the Commonwealth who 
commanded petitioners to leave their seats at the lunch 
counter because petitioners were Negroes and the counter 
was maintained for white people. It was the police officer 
who arrested petitioners for failure to obey this command.



23

It was the public prosecutor who charged petitioners with 
an offense, and it was the State’s judiciary that convicted 
and sentenced them. Thus, from the policeman’s order, 
the conviction and punishment, the Commonwealth was 
engaged in enforcing racial segregation with all of its law 
enforcement machinery.

This racial discrimination may fairly be said to be the 
product of state action within the reach of the Fourteenth 
Amendment which “nullifies and makes void all State 
legislation, and State action of every kind, which impairs 
the privileges and immunities of citizens of the United 
States, or which injures them in life, liberty or property 
without due process of law, or which denies to any of 
them the equal protection of the laws.” Civil Rights Cases, 
109 U. S. 3, 11. As stated by the Court in Cooper v. Aaron, 
358 U. S. 1, 17:

“Thus the prohibitions of the Fourteenth Amendment 
extend to all action of the State denying equal pro­
tection of the laws; whatever the agency of the State 
taking the action, . . . (citing cases) . . .  ; or whatever 
the guise in which it is taken, . . . (citing cases).”

Just as judicial enforcement of racially restrictive cov­
enants was held to constitute state action in violation of 
the Fourteenth Amendment in Shelley v. Kraemer, 334 
U. S. 1, and Barrows v. Jackson, 346 U. S. 249, so in this 
case judicial enforcement of a rule of racial segregation 
in privately owned lunch counters operated as business 
property opened up for use by the general public should 
likewise be condemned.

In Burton v. Wilmington Parking Authority, 365 U. S. 
715, 722, Mr. Justice Clark, delivering the opinion of the 
Court, stated:



24

“Because the virtue of the right to equal protection of 
laws could lie only in the breadth of its application, its 
constitutional assurance was reserved in terms whose 
imprecision was necessary if the right were to be en­
joyed in the variety of individual-state relationships 
which the Amendment was designed to embrace. For 
the same reason, to fashion and apply a precise 
formula for recognition of state responsibility under 
the Equal Protection Clause is ‘an impossible task’ 
which ‘this Court has attempted.’ Koteh v. Board of 
River Port Pilot Com’rs, 330 U. S. 552, 556, 67 S. Ct. 
910, 912, 91 L. Ed. 1093. Only by sifting facts and 
weighing circumstances can the nonobvious involve­
ment of the State in private conduct be attributed its 
true significance.”

And as Mr. Justice Frankfurter observed in his dissent, 
727:

“For a State to place its authority behind discrimina­
tory treatment based solely on color is indubitably a 
denial by a State of the equal protection of the laws, 
in violation of the Fourteenth Amendment.”

By the interpretation and application of the trespass stat­
ute under the circumstances here the Commonwealth has not 
merely placed its authority behind discriminatory treat­
ment based solely upon race, but the Commonwealth has so 
involved itself in thus employing its criminal process and 
thereby erecting criminal sanctions that it now stands en­
meshed. Under prior decisions of this Court, these convic­
tions resulted from invalid state action.



25

C. The decision below affirming these convictions is in 
conflict with or in advance of this Court’s decisions 
prohibiting unwarranted state interference with the 
exercise of rights protected by the Fourteenth 
Amendment.

Independent of any question of the racially discrimina­
tory use of its criminal process, this Court has held that 
the employment of the state criminal process is prohibited 
state action where its use amounts to prohibitive interfer­
ence with the exercise of constitutional rights. Marsh v. 
Alabama, supra. The employment of the criminal ma­
chinery by the Commonwealth was an unwarranted interfer­
ence with the enjoyment of the rights of expression and of 
association, the right to secure property, and the right to 
the enjoyment of liberty which are guaranteed by the 
Fourteenth Amendment.

In the Marsh case, supra, after the Supreme Court estab­
lished that the defendants had a right to distribute religious 
literature upon the private premises of a company owned 
town, the Court found that the use of the state’s criminal 
machinery to punish or impede those in the exercise of that 
right was unconstitutional. That is to say, statutes other­
wise valid are invalidly applied in such situations. Tick Wo 
v. Hopkins, supra.

In the celebrated case of Cunningham v. Neagle, 135 U. S. 
1, the Supreme Court reviewed the problem of the use 
of the state criminal process to impede, hamper and frus­
trate the exercise of the national power. The court re­
affirmed the proposition that the State’s police power was 
subject to the Supremacy Clause of the United States Con­
stitution. Art. VI, cl. 2. The Court stated at 70 and 72:

“ . . . the prisoner is held in the state court to answer 
for an act which he was authorized to do by the law of 
the United States, which it was his duty to do as Mar­



26

shal of the United States, and if in doing that act he 
did no more than what was necessary and proper for 
him to do, he cannot be guilty of a crime under the 
law of the State of California.”

Where there had been an exercise of the criminal process 
or a threat to exercise such process, even as remote as 
criminal sanction by way of contempt following injunctive 
relief for conduct protected by the First Amendment, the 
Supreme Court has prohibited such state intervention. 
Watson v. Jones, 13 Wall. 679 ; Cantwell v. Connecticut, 
supra; Murdoch v. Pennsylvania, 319 U. S. 105; Davis 
v. Balson, 133 U. S. 333; Chaplinsky v. New Hampshire, 
315 U. S. 568; Patterson v. Colorado, 205 U. S. 454; Near 
v. Minnesota, 283 U. S. 697; Jones v. Opelika, 319 U. S. 103; 
DeJonge v. Oregon, 299 U. S. 353.

Petitioners entering and remaining upon the premises of 
this public restaurant sought to procure service under the 
same circumstances and conditions of other patrons and 
upon refusal to demonstrate and convey to others knowl­
edge of racial discriminatory treatment in the expectation 
that an orderly change of policy would ensue as a result of 
the dissemination of this information by this form of pro­
test. Their expression (asking for service) was entirely 
appropriate to the time and place in which it occurred. 
Certainly the invitation to enter an establishment carries 
with it the right to discuss and even argue with the pro­
prietor concerning terms and conditions of service so long 
as no disorder or obstruction of business occurs.

Petitioners did not shout, obstruct business, carry picket­
ing signs, give out handbills, or engage in any conduct 
inappropriate to the time, place and circumstances. There 
was no invasion of privacy involved in this case, since the



27

lunch counter was an integral part of commercial property 
open up to the public.

The liberty secured by the due process clause of the 
Fourteenth Amendment insofar as it protects free expres­
sion is hardly limited to verbal utterances. It covers picket­
ing, Thornhill v. Alabama, 310 U. 8. 88; free distribution 
of handbills, Martin v. Struthers, supra; display of mo­
tion pictures, Burstyn v. Wilson, 343 U. S. 495; joining 
of associations, N. A. A. C. P. v. Alabama, 357 U. S. 449; 
the display of a flag or symbol, Btromberg v. California, 
283 U. S. 359. What has become known as a “sit in” is a 
different but obviously well understood symbol, a mean­
ingful method of communication.

This “sit in” occurred in a place entirely open to the 
public and to petitioners as well. That the p r e m i ses  were 
privately owned should not detract from the high constitu­
tional position which such free expression deserves. This is 
hardly a case involving, for example, expression of views 
in a private home or other restricted area private in nature. 
The establishment here was open to the public and the pa­
tronage of the public, including that of Negroes was sought.

This Court in the Marsh case supra, 506, rejected argu­
ment that being present upon private property per se 
divests a person of the constitutional right of free ex­
pression :

“Ownership does not always mean absolute d o m i n i on 
The more an owner, for his advantage, opens up his 
property for use by the public in general, the more do 
his rights become circumscribed by the statutory and 
constitutional rights of those who use it. . . . ”

In that case this Court held unconstitutional convictions 
of Jehovah’s Witnesses for trespass for proselytizing on 
private property of a company town. See also, Republic



Aviation Corp. v. National Labor Relations Board, 324 
U. S. 793, 801, note 6; National Labor Relations Board 
v, Babcock and Wilcox Co., 351 U. S. 105, 112; United 
Steelworkers v. National Labor Relations Board, 243 F. 
2d 593, 598 (D. C. Cir. 1956), rev. on other grounds, 357 
U. S. 357; People v. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 
277, 279 (1948) ; Freeman v. Retail Clerks Union, 45 Lab. 
Bel. Bef. Man. 2334 (Wash. Super. Ct. 1959).

These decisions, of course, are manifestations of the 
fundamental view, stated in Munn v. Illinois, 94 U. S. 113, 
126, that “when . . . one devotes his property to a use in 
which the public has an interest, he, in effect, grants to the 
public an interest in that use, and must submit to be con­
trolled by the public for the common good, to the extent of 
the interest he has thus created.. . . ”

As this Court stated in Bates v. Little Rock, 361 U. S. 
516, 524:

“Where there is a significant encroachment upon per­
sonal liberty, the State may prevail only upon showing 
a subordinating interest which is compelling.”

There is no showing, and there can be none, of a controlling 
justification for the limitation upon freedom of expression 
and association which this interpretation and application 
of the trespass law imposes. N. A. A. C. P. v. State of 
Alabama, supra.

Therefore, having no valid interest to preserve, the 
Commonwealth has no power to interfere by use of its 
criminal process with the expression and association in 
which petitioners were engaged.

The dedication of the property involved in this restau­
rant business altered the rights of the owner and members 
of the public. The state’s action here was an unwarranted



29

infringement upon petitioners’ right to contract, to secure 
property and to otherwise enjoy the liberties of free men 
unimpaired by the action of the state. In Valle v. Stengel, 
176 Fed. 2d 697, 703, the court stated:

“If a man cannot make or enforce a contract already 
made because of the interference of a State officer he 
is being denied a civil right. He cannot support him­
self or his family or earn a living under the system 
to which we adhere. The liberty involved is in fact the 
liberty of the contract. Cf. Allgeyer v. Louisiana, 165 
U. S. 578, 17 S. Ct. 427, 41 L. Ed. 832. To refuse to 
an individual the liberty of contract is to put him be­
yond the pale of capitalism. Thus ostracized, he can­
not engage in the acquisition of property or in the 
pursuit of happiness.”

And as this Court observed in Bolling v. Sharpe, 347 U. S. 
497:

“Although the Court has not assumed to define ‘liberty’ 
with any great precision, that term is not confined to 
mere freedom from bodily restraint. Liberty under 
law extends to the full range of conduct which the 
individual is free to pursue, and it cannot be restricted 
except for a proper governmental objective. Segrega­
tion in public education is not reasonably related to 
any proper governmental objective, and thus it im­
poses on Negro children of the District of Columbia 
a burden that constitutes an arbitrary deprivation of 
their liberty in violation of the Due Process Clause.”



30

Finally, that this private restaurant which is open for 
the public is not an untouchable island in our midst because 
of its dedication is too clear to be debated. This restaurant 
is subject to myriad laws and regulations; and that it is 
affected with a public interest is everywhere apparent; and, 
much more important it must also be operated in accord 
with the law of the land which includes a prohibition against 
racially discriminatory state action. No power to cut off 
the food and drug supply from millions of Americans can 
possibly be said to reside either in the mercurial protection 
of the merchant’s self interest or his prejudicial aberrations.

These petitioners, then, had a right to be in this restau­
rant and to be served as others, and only reasonable grounds 
for exclusion or refusal to serve could revoke the enjoy­
ment of this right with state sanction or assistance. It is 
submitted that race or color is not such a reasonable basis. 
Thus the state sanction and assistance by these arrests and 
convictions was an unwarranted infringement upon rights 
of petitioners of expression and of association, the right 
to contract and to secure property, and to otherwise enjoy 
the liberties of free men, guaranteed by the Constitution.



31

CONCLUSION

For the foregoing reasons, this petition for a writ of 
certiorari should be granted.

Respectfully submitted,

Otto L. T ucker
901 Princess Street 
Alexandria, Virginia

H erbert 0 . R eid
1500 Newton Street, N. E. 
Washington, D. C.

Attorneys for Petitioners

T hurgood Marshall 
J ack Greenberg 
E lwood H. Chisolm 
J ames M. Nabrit, III

Of Counsel



la

A PPEND IX

V irginia:

In the Supreme Court of Appeals held at the Supreme 
Court of Appeals Building in the City of Bichmond on 
Tuesday the 25th day of April, 1961.

The petition of Lawrence George Henry for a writ of 
error and supersedeas to a judgment rendered by the 
Circuit Court of Arlington County on the 3rd day of No­
vember, 1960, in a prosecution by the Commonwealth 
against the said petitioner for a misdemeanor, No. 2754, 
having been maturely considered and a transcript of the 
record of the judgment aforesaid seen and inspected, the 
court being of opinion that the said judgment is plainly 
right, doth reject said petition and refuse said writ of 
error and supersedeas, the effect of which is to affirm the 
judgment of the said circuit court.

A Copy,

Teste:
/ s /  H. G. Turner

Clerk



2a

V irginia :

In the Supreme Court of Appeals held at the Supreme 
Court of Appeals Building in the City of Richmond on 
Tuesday the 25th day of April, 1961.

The petition of Dion Tyrone Diamond for a writ of error 
and supersedeas to a judgment rendered by the Circuit 
Court of Arlington County on the 3rd day of November, 
1960, in a prosecution by the Commonwealth against the 
said petitioner for a misdemeanor, No. 2755, having been 
maturely considered and a transcript of the record of the 
judgment aforesaid seen and inspected, the court being of 
opinion that the said judgment is plainly right, doth reject 
said petition and refuse said writ of error and supersedeas, 
the effect of which is to affirm the judgment of the said 
circuit court.

A Copy,

Teste:
/ s /  H. G. Turner

Clerk