Dilworth v. Riner Reply Brief for Appellants

    I n  the

3ltut£& î tatTB (Eourt of Appeals
F ob t h e  F if t h  C ir c u it  

No. 22008

L ee  F . D il w o r t h , et al., 

—v.—
Appellants,

T. N. R in e r , et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF MISSISSIPPI

REPLY BRIEF FOR APPELLANTS

R . J ess  B r o w n

125% North Farish Street 
Jackson, Mississippi 39201

H e n r y  M. A ro n so n

507% North Farish Street 
Jackson, Mississippi 39201

J a c k  G r e en be rg  
M e l v y n  Z arr

10 Columbus Circle 
New York, New York 10019 

Attorneys for Appellants



I n  the

Hnitpfr UtatPH Court of ApjiraLs
F or t h e  F if t h  C ir c u it  

No. 22008

L ee  F . D il w o r t h , et al., 

—v.—
Appellants,

T. N. R oster, et al.,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF MISSISSIPPI 

-------------------------- --------------------------------

REPLY BRIEF FOR APPELLANTS

On December 14, 1964, the Supreme Court of the United
States decided Hamm v. City of Rock Hill, — — U. S . ------
(Nos. 2 & 5, decided December 14, 1964). The Court there 
held that “ [t]he Civil Rights Act of 1964 forbids discrim­
ination in places of public accommodation and removes 
peaceful attempts to be served on an equal basis from the 
category of punishable activities.”

Hamm and others had been arrested and prosecuted for 
“ sit-ins” in Rock Hill, South Carolina and Little Rock, 
Arkansas.

The Supreme Court held that the facilities involved— 
the lunch counter in McCrory’s 5 and 10 cent store in Rock 
Hill and the tearoom in the Gus Blass department store in 
Little Rock—-were covered by Title II of the Civil Rights 
Act.1 The Court further held that this conduct “ could not

1 The Court held that they offered to serve interstate travelers 
by offering service to the general public and not merely to intra­
state travelers.



2

be the subject of trespass prosecutions, federal or state.” 
The Court relied upon §203(c)2 which, it found, “ [o]n its 
face . . . prohibits prosecution of any person for seeking 
service in a covered establishment because of Ms race or 
color.” (emphasis supplied). The Court continued:

[T]he language of §203(c) supports a conclusion 
that non-foreible attempts to gain admittance to or 
remain in establishments covered by the Act are im­
munized from prosecution, for the statute speaks of 
exercising or attempting to exercise a “right or privi­
lege” secured by its earlier provisions . . .  In effect 
the Act prohibits the application of state laws in a 
way that would deprive any person of the rights 
granted under the Act. (Emphasis supplied).

Clearly, the thrust of the Hamm, decision controls this 
case. Were Hamm to re-enter McCrory’s today seeking 
service on a non-segregated basis, would a federal court 
be powerless to intervene to stay his arrest and prosecu­
tion for trespass? Would Hamm be told (as appellants 
were told by the federal court below) that he must pursue 
his “ remedies” in the state court system—on up to the 
United States Supreme Court?

Surely, the Civil Rights Act rationally construed, does 
not suffer such a practical negation of federal rights. 
Were such state prosecutions suffered to be commenced 
and maintained in state courts, the resultant deterrence to 
the exercise of these rights would result in a federal 
scheme in which these rights, practically speaking, would 
mean very little indeed. The “ frustration of superior fed­

2 §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.



3

eral interests” 3 would be incalculable; the dislocation of 
the federal regulatory scheme would be severe.4 Surely, 
such a result was not intended by Congress, nor by the 
people of the United States.

Respectfully submitted,

R. J ess B r o w n

125% North Farish Street 
Jackson, Mississippi 39201

H e n r y  M. A ro n so n

507% North Farish Street 
Jackson, Mississippi 39201

J a c k  G re en be rg

M e l v y n  Z arr

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

3 Letter Minerals, Inc. v. United States, 352 U. S. 220, 226 
(1957).

4 See Amalgamated Clothing Workers of America v. Bichman 
Brothers, 348 U. S. 511, 515, footnote 2, 526 (1955). Mr. Justice 
Frankfurter’s opinion in Bichman suggested that whether an Act 
of Congress constituted express authorization under 28 U. S. C. 
§2283 depended on “the context of the scheme” of the federal 
legislation (348 U. S. at 515, footnote 2) ; Mr. Justice Douglas, in 
dissent, agreed that the test was whether permitting the state pro­
ceeding would “ dislocate severely the federal regulatory scheme” 
(348 U. S. at 526).



CERTIFICATE OF SERVICE

T h is  is  to  c e r t if y  that on December 22, 1964 I served 
a copy of the foregoing Reply Brief for Appellants on 
each of the following attorneys for appellees by United 
States airmail, postage prepaid: Robert D. Patterson, 
Esq., L. T. Senter, Jr., Aberdeen, Mississippi; C. R. Bol­
ton, Esq., Tupelo, Mississippi; Claude A. Chamberlain, 
Esq., Aberdeen, Mississippi.

Attorney for Appellants



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