Tyson v. Cazes Brief for Appellees

    IN THE

UNITED STATES

C O U R T  O F  A P P E A L S
FIFTH CIRCUIT

No« 22i616

DR. BERTRAND O. TYSON,
Appellant,

versus

LT. CLARENCE J. CAZES, et al.,
Appellees.

On Appeal from the United States District Court for 
the Eastern District of Louisiana.

BRIEF FOR APPELLEES, LT. CLARENCE J. CAZES 
OFFICER LIONEL STEIN, OFFICER LESTER 
HAYDEL, JR., OFFICER SAMUEL SAVAGE, 

CHIEF OF POLICE DENNIS SONGY

EDWARD N. ENGOLIO 
514 Railroad Avenue 
Plaquemine, Louisiana 
Attorney for the named 
Appellees.



TABLE OF CONTENTS
Page

S ta tem en t of A ppellee’s Contentions ...................... 1

A rgum ent -

I. Did the C elebrity  Lounge H ave a  R igh t to
Deny Service to  C om plainant and If They 
Did H ave Such a Right, W ere the Police 
O fficers in V iolation of Any Civil R ights 
S ta tu tes  In M aking An A rrest in  R e­
sponse to the R equest of C elebrity Lounge’s 
Call? ......................................................................  4

II. If the C elebrity  Lounge Does F a ll U nder 
the Civil R ights A ct of 1964, H as Com­
p la inan t Follow ed the P ro p e r P rocedu re?  17

H I. Does the F ed e ra l Court H ave Jurisd iction
of This C ause? ...................................................  22

Conclusion ............................................................................  23

AUTHORITIES

B urton v. W ilm ington P ark in g  A uthority, 1961, 365 
U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed. 2d 45 . . .  . 5

E a to n  V. G rubbs, 216 F. Supp. 465 E.D. N.C.
(1963) .............................................................................. 4

Shelley v. K raem er, 1948, 334 U.S. 1, 68 S.Ct. 836,
92 L.Ed. 1161 .............................................................. 5

Swift V. F o u rth  N ational B ank of Colum bus, G eor­
gia, 205 F. Supp. 563 .................................................. 6

W illiam s v. H ow ard Johnson’s R esta u ra n t, 4th Cir.
(1959), 268 F.2d 845, 846 .......................................... 5

W illiam s v. Yellow Cab Com pany of P ittsburgh ,
200 F. 2nd 302 .............................................................. 6



IN TH E
U N ITED  STATES COURT OF A PPE A L S 

F IF T H  CIRCUIT

NO. 22,616

DR. BERTRAN D  O. TYSON,
A ppellant,

versus

LT. CLARENCE J. CAZES, e t al..
A ppellees.

On A ppeal from  the  U nited S ta tes  D is tric t C ourt for the, 
E a s te rn  D istric t of Louisiana.

B R IE F  FO R A P P E L L E E S , LT. CLARENCE J. CAZES 
O FF IC E R  LIO N EL STEIN , O F F IC E R  LE ST ER  
HAYDEL, JR ., O FF IC E R  SAM UEL SAVAGE, 

C H IE F  OF PO LICE D EN N IS SONGY

STA TEM EN T O F A P P E L L E E ’S CONTENTIONS

D efendan ts’ (Gazes e t al) m otion to d ism iss and m o­
tion for su m m ary  ju d g m en t w ere based , substan tia lly , 
upon the following legal propositions:

Section 1983, T itle 42 U.S.C., c ited  by appellan t in  
his com plain t does not apply  in cases of businesses 
w hich a re  not d irec tly  or substan tia lly  involved in in ­
te rs ta te  com m erce or activ ity .

In  his com plain t for dam ages, app e llan t cites the 
Civil R ights A ct of 1964, T itle II, Sections 201(c) and



(d ). A ppellees contend in th e ir  m otion to d ism iss, th a t 
m oney  d am ag es a re  not allow able un d er the 1964 A ct; 
th e  C elebrity  Lounge is no t a  public fac ility  w hich the  
1964 A ct in tends to cover; appellan t h as  no t followed 
th e  req u is ite  p rocedu re  in  b ring ing  h is action  under 
the  1964 A ct; police officers, ac ting  in th e ir  official 
cap a c itie s  should not be held personally  liab le  for offi­
c ia l conduct in  the  p erfo rm an ce  of official du ties es­
p ec ia lly  in the absence of an  a llegation  of n eg lig en ce ; 
th a t  the  case  fa ils  to p resen t for d e te rm in a tio n  a ques­
tion  aris ing  un d er the C onstitution or law s of the  
U nited  S ta tes  and, therefo re , fa ils  to fa ll w ith in  the 
ju risd ic tion  of the  F e d e ra l Courts.

A ppellan t ch arg es  a consp iracy ; th e re fo re , appellees 
Cazes e t al, u rge  the defenses of th e ir  a lleged  co-con­
sp ira to rs , Offie S tew art and  M rs. Lydia S tew art, as 
th e ir  own defenses, w hich defenses w e re :

The Civil R igh ts A ct of 1964 is inapp licab le  to the  
business conducted by the defendan t (S tew art).

D efendan t S tew art’s business w as solely th a t of in­
tr a s ta te  com m erce  and  beyond the lim its  and  au th o r­
ity  of C ongress to reg u la te  as a segm en t of in te rs ta te  
com m erce.

The F o u rteen th  A m endm ent does no t p ro tec t th e  in ­
d iv idual invasion of ind iv iduals’ righ ts.

The prohibitions of T itle II. 1964 A ct. can  be en ­
forced  only by civil su its  for an  in junction  and  n e ith er 
c rim in a l penalties nor th e  recovery  of m oney d a m ­
ages could possibly be had  under the law.



The E q u a l P ro tec tio n  C lause of the F ou rteen th  
A m endm ent does not re la te  to p riv a te  conduct of p r i­
v a te  individuals in th e ir p riv a te  p laces of business.

P la in tiff-A ppellan t alleges in A rt. I l l  of his com plain t 
th a t “ all of the defendan ts did conspire to deny p la in ­
tiff his constitu tional rig h ts  to full and  equal enjoy­
m en t of a public accom m odation” . The six p a ra g ra p h s  
of Art. I l l  of the com plain t charg e  a consp iracy ; th e re ­
fore, all defenses availab le  to the  ow ners of the Celeb­
rity  Lounge w ill be u rged  h ere  in the defense of the 
police officers of the City of P laquem ine  because  if the 
C elebrity  Lounge w ere “ w ithin  its  r ig h ts” then  it fol­
lows the  ow ners thereo f h ad  a rig h t to call the police 
officers who w ere under a corresponding  duty  to an ­
sw er the C elebrity  Lounge’s call and to p ro tec t its 
righ ts.

Thus we a rr iv e  a t  the basic  issues of the  case:

I. Did the C elebrity  Lounge have a rig h t to deny 
serv ice  to com pla inan t and  if they  did have such a 
righ t, w ere the police officers in violation of any  Civil 
R igh ts S ta tu tes  in m ak ing  an  a r re s t  in response to the 
req u es t of C elebrity  L ounge’s call?

II. If the C elebrity  Lounge does fall under the Civil 
R ights A ct of 1964, has com pla inan t followed the p rop­
e r p rocedure?

III. Does the F e d e ra l C ourt h ave  ju risd ic tion  of 
th is  cause?



ARGUMENT

DID TH E C EL EB R ITY  LOUNGE HAVE A 
RIG H T TO D EN Y  SERV ICE TO COM PLAIN­
ANT AND IF  TH EY  DID HAVE SUCH A 
RIGHT, W ER E THE PO LICE O FF IC E R S  IN 
VIOLATION OF ANY CIVIL RIG HTS STAT­
U TES IN MAKING AN A R R EST IN R E ­
SPONSE TO TH E R EQ U EST OF C ELEB R ITY  
LO U N G E’S CALL?

An exam ination  of the affidav it filed h e re in  by the 
ow ner of C elebrity  Lounge, P ag es  15-17 of the P rin te d  
R ecord , shows th a t the C eleb rity ’s business does not 
p rovide live e n te rta in m en t to its  p a tro n s  nor does it 
se rv e  m ea ls  to its pa trons, th a t all item s offered for 
sa le  have been pu rchased  in the  S ta te  of L ouisiana and 
a re  provided  for consum ption on the p rem ises, th a t the 
p rin c ip a l custom ers of th is business live and a re  dom i­
ciled in or n ea r the Town of P laquem ine  and, su b stan ­
tia lly , all of its custom ers a re  re s id en ts  of the  S ta te  of 
L ouisiana and, fu rth e r, th a t th is es tab lishm en t does 
not provide lodging to tra n s ie n t guests, nor is it lo­
ca ted  in  a  building w hich so provides. F ro m  the ev i­
dence subm itted  in th is case, it has  been  conclusively 
estab lished  th a t Offie S tew art, ow ner of C elebrity  
Lounge, w as engaged  in a business w hich m oved in  
in tra s ta te  com m erce w hich, th e re fo re , could not be 
m ad e  a p a r t  of the Civil R igh ts A ct of 1964. The Su­
p rem e  Court of the U nited S ta tes  has  consisten tly  held  
th a t the F ou rteen th  A m endm ent does not p ro tec t the 
ind iv idual invasion of the ind iv idual’s righ ts. We cite  
E aton  V. G ruhhs, 216 F. Supp. 465 E.D. N.C. (1963) for



the  proposition  th a t ind iv idual invasion of ind iv idual 
rig h ts  is not the  su b jec t m a tte r  of the F o u rteen th  
A m endm ent. Also cited  in  su p p o rt of th is proposition 
a re  BurtO'n v. W ilm ington  P arking  A u thority , 1961, 365 
U.S. 715, 722, 81 S.Ct. 856, 860, 6 L .Ed. 2d 45; Shelley v. 
K ra em er, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; 
W illiam s v. H oward Johnson’s R estauran t, 4th Cir. 
(1959), 268 F. 2d 845, 846.

P la in tiff’s com plain t a lleges th a t the  police officers 
ch arg ed  h im  w ith  d istu rb ing  the peace  and  being 
drunk  and  d isorderly , both ch arg es  hav ing  been d is­
m issed  by the M unicipal Court. C om plainan t fa ils  to 
show any charges by the police officers under any ord i­
nance  or s ta tu te  deem ing it unlaw ful to serve  N egroes 
in  a  saloon or lounge. No action  is a lleged  under such 
a  s ta tu te , nor w as th ere , in  fac t, any such action  tak en  
by the police officers. C om plainan t a ttem p ts  to show 
now, a f te r  the tr ia l of th is m otion to d ism iss and sum ­
m a ry  judgm ent, th a t such an  o rd inance ex isted  on the 
reco rd s  of the City of P laquem ipe. The D istric t Court, 
in  d ism issing  th is contention, s ta ted :

“ W hether or not th e re  w as, in  th is case, a  
local o rd inance in effect w hich w as in  conflict 
w ith Section 202 is of no m om ent. The fac ts, as 
c lea rly  s ta ted  by the p la in tiff in his com plain t, 
show conclusively th a t he w as denied serv ice 
in the  C elebrity  Lounge not because  of the 
com pulsion of any s ta te  or local law  or ord i­
nance , bu t because  the  ow ners the reo f did not 
choose to serve  N egroes in  th e ir estab lish ­
m ent. And since the  C elebrity  Lounge w as not 
an  e s tab lish m en t covered  by Section 201 of the 
A ct, the  ow ners of C elebrity  Lounge h ad  a  per-



fee t r ig h t, under the  law , to a c t as they  did. 
H ence, p la in tiff s ta te s  no c la im  ag a in st the 
ow ners of the C elebrity  Lounge, Offie and 
L ydia S tew art, upon w hich re lie f can  be g ra n t­
ed in so far as an  action  under the  Civil R ights 
A ct of 1964 is concerned .”

In  W illiam s v. Y ellow  Cab C om pany of P ittsburgh , 
200 F. 2nd 302, the  C ourt sa id :

“ I t h as  long been  se ttled  th a t the  F o u rteen th  
A m endm ent is d irec ted  only to S ta te  action  and 
th a t  the  invasion  by ind iv iduals is no t w ithin 
its  purview . I t  n ecessarily  follows th a t the ju r ­
isd ic tion  conferred  upon the F e d e ra l D is tric t 
C ourts by Section 1343, T itle  28, is s im ila rly  
lim ited  and  th a t re d re ss  for the invasion by an 
ind iv idual of the  civil rig h ts  of ano ther m u st 
be sought in  the S ta te  C ourts un less, of course, 
th e re  is d iversity .”

U.S. V. Crookshank, 92 U.S. 542.
U.S. V. H arris , 106 U.S. 629.
Civil R igh ts C ases 
109 U.S. 311, 17.
Shelley v. K raem e r, 334 U.S. 1, 13.

In  S w ift V.  F ourth  National B a n k  of Colum bus, Geor­
gia, 205 F . Supp. 563 the F ifth  C ircu it C ourt of A ppeal 
sa id :

“ The F ou rteen th  A m endm ent canno t be the  
b asis  fo r an  action  com plaining of the  ac ts  of 
p riv a te  ind iv iduals or business e s tab lish ­
m en ts .”



O riginally , app e llan t a ttem p ted  to base  his c la im  u n ­
der Section 201(c) and 201(d) of the  Civil R ights A ct 
of 1964 and  he fu rth e r  contends th a t under Section 202 
the fac t th a t seg regation  in  ce rta in  types of estab lish ­
m en ts , even though not specifically  covered  by Section 
201, is req u ired  by s ta te  or local law  pu rp o rts  to c lass i­
fy an  a c t of seg regation  p rac ticed  in such an e s tab ­
lishm en t as falling  w ith in  the in tendm en t of the Civil 
R ights Act.

The portion  of Section 201 of the Civil R ights A ct of 
1964, T itle 42, U.S.C., Section 2000a, w hich seem ed to 
be a t issue h ere , provides as follows:

“ (a) All persons shall be en titled  to the full 
and equal en joym ent of the  goods, serv ices, 
facilities, p riv ileges, ad v an tag es , and  accom ­
m odations of any p lace of public accom m oda­
tion, as defined in this section, w ithout d isc rim ­
ination  or seg regation  on the ground of race , 
color, religion, or national origin.

“ (b) E ach  of the following estab lishm en ts  
w hich serves  the  public is a  p lace of public a c ­
com m odation  w ith in  the m eaning  of th is sub­
ch ap te r if its  operations a ffec t com m erce, or if 
d iscrim ination  or seg regation  by it is suppo rt­
ed by S ta te  action:

“ (1) any inn, hotel, m otel, or o ther estab lish ­
m en t w hich provides lodging to tran s ien t 
guests, o ther th an  an  estab lish m en t located  
w ith in  a building w hich contains not m ore than  
five room s for re n t or h ire  and  w hich is ac tual-



8

ly occupied by the  p ro p rie to r of such estab lish ­
m en t as his res id en ce;

“ (2) any re s ta u ra n t, ca fe te ria , lunchroom , 
lunch counter, soda  fountain , or o ther facility  
p rinc ipa lly  engaged  in selling food for coji- 
sum ption  on the p rem ises, including, b u t not 
lim ited  to, any  such fac ility  located  on the 
p rem ises  of any  re ta in  e s tab lish m en t; or any 
gasoline sta tion  ;

“ (3) any  m otion p ic tu re  house, th e a te r , con­
c e r t hall, spo rts  a ren a , s tad ium  or o ther p lace 
of exhibition or en te rta in m en t; and

“ (4) any  es tab lish m en t (A) (i) w hich is 
physically  located  w ith in  the  p rem ises  of any 
estab lish m en t o therw ise covered by th is sub­
section, or (ii) w ith in  the p rem ises  of w hich is 
physically  located  any such covered  estab lish ­
m ent, and (b) w hich holds itse lf out as se rv ­
ing p a tro n s of such covered estab lishm ent.

“ (c) The operations of an  es tab lishm en t af­
fec t com m erce w ith in  the m ean ing  of th is sub­
ch ap te r if (1) it is one of the estab lishm en ts  
described  in p a ra g ra p h  (1) of subsection (b) 
of th is section ; (2) in the case  of an  e s tab lish ­
m en t described  in p a ra g ra p h  (2) of subsection 
(b) of this section, it se rves or offers to serve  
in te rs ta te  tra v e le rs  or a su b stan tia l portion 
of the food w hich it serves, or gasoline or o th­
e r p roducts  w hich it sells, has  m oved in  com ­
m e rc e ; (3) in the  case of an  e s tab lish m en t de­
scribed  in p a ra g ra p h  (3) of subsection (b) of



th is section, it custom arily  p resen ts  film s, p e r­
fo rm ances, a th le tic  team s, exhibitions, or oth­
e r sources of en te rta in m en t w hich m ove in 
com m erce; and (4) in the case  of an  estab lish ­
m en t described  in p a ra g ra p h  (4) of subsection 
(b) of th is  section, it is physically  located  w ith­
in the p rem ises of, or th e re  is physically  lo ca t­
ed w ithin its  p rem ises, an  e s tab lish m en t the 
operations of w hich affect com m erce w ithin 
the m eaning  of th is subsection. F o r purposes 
of th is section, ‘co m m erce ’ m eans trav e l, 
trad e , tra ffic , com m erce, tran sp o rta tio n , or 
com m unication  am ong the sev e ra l S ta tes , or 
betw een the D istric t of Colum bia and  any 
S tate , or betw een any foreign  country  or any 
te rr i to ry  or possession and  any  S ta te  or the 
D istric t of Colum bia, or betw een points in  the 
sam e S ta te  but th rough  any o ther S ta te  or the 
D istric t of Colum bia or a  fo reign  country.

“ (d) D iscrim ination  or seg regation  by an es­
tab lish m en t is supported  by S ta te  action w ith­
in the m ean ing  of th is su b ch ap te r if such d is­
crim ination  or seg regation  (1) is c a rr ied  on 
under color of any law , s ta tu te , o rd inance, or 
regu la tion ; or (2) is c a rr ied  on under color of 
any  custom  or usage req u ired  or enforced by 
officials of the  S ta te  or po litical subdivision 
thereo f; o r (3) is req u ired  by action  of the 
S ta te  or po litical subdivision thereo f.’’

Section 202, w hich is 42 U.S.C., Section 2000a-l, is 
h e reby  quoted for th e  benefit of th is b rief:



10

“ All persons sha ll be en titled  to be free , a t 
any  es tab lish m en t or p lace, from  d isc rim in a ­
tion or seg regation  of any  kind on the  ground 
of race , color, religion, or na tional origin, if 
such  d isc rim in a tio n  or seg reg a tio n  is or p u r­
p o rts  to be req u ired  by any  law , s ta tu te , o rd i­
nance , regu la tion , ru le , or o rd er of a s ta te  or 
an y  agency  or po litical subdivision thereo f.”

I t  is c lea r from  a read ing  of the above sections of 
th e  Civil R igh ts A ct th a t the C elebrity  Lounge does not 
fa ll under Section 201 and  it is c lea r from  the  a lleg a ­
tions of ap p e llan t’s petition  th a t  no charg e  w as filed 
ag a in st h im  because  of any law , s ta tu te  or ord inance, 
regulation, ru le  or order of the  Town of P laquem ine  
requ irin g  segregation . By the v ery  language  of the 
com plain t itself, Tyson w as charged  w ith  d istu rb ing  
the peace  and being drunk  and  d isorderly , and  none 
of said  s ta tu te s  req u ire s  segregation . The police of­
fice rs  w ere called  by the ow ner of C elebrity  Lounge, 
or his agent, who asked  Tyson to leave in the p resence  
of the  police officers and he refused  to do so. The only 
a lte rn a tiv e  for the ow ner or the  ow ner’s agen t of th e  
C elebrity  Lounge w as to physically  oust Tyson or to  
se rv e  him . The ow ner did not choose to serve  h im  nor 
did he choose to  take  the law  in his own hands and  
physically  oust him . He asked  for and  rece ived  the 
help of the  police officers to m a in ta in  the peace  and  
o rd e r of h is estab lishm ent. The ow ner h ad  a  righ t to 
choose th is course because  th e re  is no law  w hich forces 
h im  to  ser% e a  pa tro n  he does not choose to serve. The 
police officers w ere  un d er a  co rresponding  duty  to 
m a m ta in  the  peace and  o rd er of the tow n and its 
ru s ire s s  estab lishm en ts, especially  w hen requested  to  
do so as  in th is case. H ad the police o fficers re fused



11

to  a r re s t  Tyson, it could have led to ac ts  of violence 
on the p a r ts  of citizens of the town and a consequent 
continuation of a d is tu rbance  of the peace, w hich m ay  
have resu lted  in bloodshed or som e other serious 
physical violence.

I t  m ay  be tru e  th a t S tew art or his agen t d isc rim i­
na ted  ag a in st Tyson by refusing  to serve  him  but in so 
d iscrim inating , the ow ner of the C elebrity  Lounge 
m ade his own choice to d iscrim inate . He w as not 
forced  to do so' by the police officers; had  he chosen 
to  serve  Tyson, he w as free  to do so. I t is the sam e 
as the ow ner of a hom e who chooses to ad m it one guest 
ra th e r  than  another, and if the unw elcom e guest should 
in sis t on en tering  the hom e and rem ain ing  th e re  a f te r  
being asked  to leave, then  certa in ly  the ow ner has no 
a lte rn a tiv e  than  to oust him  physically  or call on the 
police to m a in ta in  the peace and dignity  of his hom e.

W hen the Congress chose not to include a bar, saloon 
or lounge, such as the C elebrity  Lounge, in Section 201 
of the Act, it had  a specific reason  for th is om ission. 
This ce leb ra ted  ac t w as con troversial, perhaps one of 
the  m ost a rgu m en ta tiv e  passed  in our generation  and 
ce rta in ly  the m a tte r  w as well considered by Congress. 
F o r  th e  Courts to now include it under Section 201 would 
p lace  a leg islative function upon the Courts, w hich the 
Constitution of the U nited S ta tes specifically  prohibits. 
This is not a m a tte r  of jud icial in te rp re ta tio n  but th is 
is a  m a tte r  of legislation. By excluding a b a r  from  
Section 201 it is ap p aren t th a t Congress w as a tte m p t­
ing  to p ro tec t som e of the righ ts of som e individuals 
to o pera te  th e ir businesses in such a m an n er as to  
serve  p a tro n s of th e ir own choosing.



12

Section 202 p ro tec ts  the individual who w ishes to  
p ra c tic e  in teg ra tion  by prohibiting  the  s ta te  from  en­
forc ing  d isc rim in a tio n  or seg regation  of its  volition. 
The ow ners of the C elebrity  Lounge chose not to p ra c ­
tice  in teg ration ; since the 1964 A ct does not enforce in­
te g ra tio n  upon such people, then  they  had  a  free  
choice to refuse  to serve  Dr. Tyson.

Since it m ust be inevitab ly  concluded th a t  the Cele­
b rity  Lounge had  such a rig h t to deny serv ice  to com ­
p la inan t, then  it follows logically  th a t they  also had  a 
rig h t to call the police to enforce th e ir  rig h ts  and again  
i t  m u st follow logically  th a t the police w ere  under a 
corresponding  duty  to p reven t violence, bloodshed, and 
to p rev en t a c iv ilian  from  tak ing  the law  in his own 
hands. The action taken  by the police officers in th is 
case  should be com m ended ra th e r  th an  condem ned. 
They w ere able to rem ove the com plainan t from  the 
p rem ises  w ithout violence and in a peacefu l and digni­
fied  m anner. Not once did they  re so rt to any s ta tu te  
w hich enforces segregation . I t  is doubtful if these 
police officers knew  th a t such a s ta tu te  existed , if one 
does exist, because the  ch arg es  m ade ag ain st Tyson 
w ere  as follows:

D isturbing the peace.
Sim ple D runk and 
D isorderly  conduct.

If S tew art had  chosen to in teg ra te  the C elebrity  
Lounge and if, in so doing, w hite people had  given h im  
trouble, it would have been  the duty  of the police of­
fice rs  to rem ove said  tro u b lem ak e rs  because  tm der 
Section 202 of the Civil R ights Act, a p ro p rie to r m ay  
in teg ra te  his es tab lishm en t even though it is not one



13

covered by Section 201 of the Act. Thus, the law  of­
fice rs  of P laquem ine  should not only have p erm itted  
in teg ra tio n  bu t they  should have assis ted  S tew art in 
h is righ ts  to in teg ra te  his estab lishm ent, had  S tew art 
chosen to  do so. S tew art did not choose to exercise  his 
rig h ts  under Section 202. Tyson had  no righ t, p riv ilege 
or im m unity  under Section 202 unless S tew art chose 
to  give h im  such a  right.

Since it has been concluded th a t the actions of 
S tew art or his agen ts w ere individual actions, then  
Sections 42 U.S.C., Section 1983 and  1985 do not apply 
because to recover under th a t s ta tu te  th e re  m u st be 
a  conspiracy under color of s ta te  action  and not one 
involving individual action. 42 U.S.C., Section 1983 
provides as follows:

“ E v ery  person  who, under color of any s ta t­
ute, ordinance, regulation, custom , or usage, of 
any  s ta te  or te rrito ry , sub jects, or causes to  
be subjected , any  citizen of the U nited S tates 
or o ther person  w ith in  the ju risd iction  thereof 
to the depriva tion  of any righ ts, p riv ileges, or 
im m unities, secu red  by the C onstitution and 
law s, shall be liable to the p a rty  in ju red  in 
an  action a t law, su it in equity, or o ther p roper 
proceedings for red re ss .”

Title 42, U.S.C., Section 1985 provides in p ertinen t 
p a r t, as follows:

“ (3) If two or m ore persons in any s ta te  or 
te rr i to ry  conspire to go in  disguise on the 
highw ay or in the p rem ises  of ano ther, for the 
purpose of depriving, e ith er d irec tly  or indi-



14

rectly , any person or c lass of persons of the 
equal pro tection  of the law s, or of equal p riv ­
ileges and im m unities un d er the law s; or for 
the purpose of p reven ting  or h indering  the 
constitu ted  au thorities  of any  s ta te  or te r r i­
to ry  from  giving or securing  to all persons 
w ith in  such s ta te  or te rr i to ry  the equal pro­
tection  of the law s; * * * in any  case  of con­
sp iracy  se t fo rth  in this section, if one or m ore 
persons engaged  th e re in  do, or cause to  be 
done, any  ac t in fu rth eran ce  of the ob ject of 
such  conspiracy, w hereby  ano ther is in ju red  
in his person or p roperty , or deprived  of h av ­
ing and exerc ising  any righ t or priv ilege of a 
citizen of the U nited S tates, the p a r ty  so in­
ju red  or deprived  m ay  have an  action  for the 
reco v ery  of d am ages, occasioned by such in ­
ju ry  or deprivation, ag a in st any  one or m ore 
of the consp ira to rs.”

U nder Section 1983 th e re  w as no depriva tion  of any 
rig h t, priv ilege or im m unity  secu red  by the C onstitu­
tion and  law s of the U nited S ta tes , the  S ta te  of Louisi­
a n a  or the City of P laquem ine. The action  on the  p a r ts  
of the ow ners of C elebrity  Lounge w as individual a c ­
tion p u rsu an t to th e ir constitu tionally  g u a ran teed  
r ig h t to  the equal pro tection  of the  law  and  the p eace ­
ful use of th e ir  p roperty . T here can  be no conspiracy  
under Section 1985 w hich would lead  tow ard  depriv ­
ing  Dr. Tyson of the equal pro tection  of the law s, or of 
equal p riv ileges and im m unities under the law s, w hen 
th e re  is no law  which g ran ts  h im  the rig h t and p riv ­
ilege to  dem and  a d rink  a t a b a r  of th is classification. 
Thus, the provisions of Section 1985 a re  in no w ay 
app licab le  to  the  cause of action w hich com plainan t



15

has a ttem p ted  to a sse rt and, the re fo re , th e re  can  be 
no consp iracy  charged  under sa id  section.

C om plainant has attem pted , a t  the la s t m inute, to 
in jec t a new  com plain t in th is cause by v irtue  of a 
le tte r  dated  N ovem ber 25, 1964 subm itted  to Judge 
W est, a t w hich tim e he a ttem p ted  to in troduce new 
evidence and sponsor new pleadings in the form  of an  
ordinance prohibiting  the sa le  of alcoholic beverages 
of m ore  th an  3.2% by volum e for consum ption on the 
sam e p rem ises to persons of the w hite and  C aucasian  
race  and persons of the Negro or b lack  race . This 
m a tte r  cannot be considered by the Court a t  this tim e 
and even if it w ere perm issib le  p rocedurally , Dr. Ty­
son, according to  allegations contained in his com ­
plaint, w as not charged  w ith  a  violation of any  such 
ord inance and th e re  is no evidence in the  reco rd  nor 
is th e re  any allegation  to the effect th a t any person  
a ttem p ted  to sell spirituous, vinous or m a lt liquor of 
alcoholic content of m ore than  3.2% by volum e to p e r­
sons of the  w hite and C aucasian  race  and persons of 
the N egro  or b lack  ra c e  in this case, nor is th e re  any 
evidence or a llegation  th a t an  a r re s t  w as m ade under 
any  such ordinance.

The allegations of Dr. T yson’s com plain t do not show 
w h at type of liquor w as o rdered , if any spirituous 
liquor w as ordered . He could v ery  well have o rdered  
a soft drink  and S tew art could v ery  well, under the 
law , have re fu sed  to serve  h im  a soft drink. T hat is 
no t the issue in th is case. Tyson need not have o rdered  
any  drink  a t all and S tew art still would have had  the 
rig h t to oust him . Dr. Tyson w as asked  to  leave Mr. 
S tew art’s p rem ises  repea ted ly ; his p resence  th e re  
am ounted to  a  d is tu rbance  of the peace of said  p rem -



16

ises in th a t it w as con tem pla ted  a  physical eviction 
would have been n ecessa ry  in the even t the police had  
not been called  upon to in tervene.

R ealizing his cause w as futile on the law  and fac ts  
as orig inally  p resen ted , it seem s th a t now, in his brief, 
p la in tiff-appellan t is a ttem p tin g  to p resen t a  new  se t 
of facts, new  evidence and a new  legal a rgum en t. To 
th is, we strenuously  object.

Conceding, how ever, th a t appellan t has  a righ t to 
c re a te  a new cause of action  a t this tim e, and re se rv ­
ing all righ ts  in the prem ises, is p la in tiff still p erm itted  
to sue for dam ag es under the Civil R igh ts S ta tu te?  
W hat is p la in tiff’s p rocedure  if the police officers did 
m ak e  an  a r re s t  under a seg regation  o rd inance?

Section 204(a) of the Civil R ights A ct specifically  
spells out ap p e llan t’s course of action if it is tru e  the 
police officers a ttem p ted  to enforce a seg regation  ordi­
nance. A civil action for p reven tive  relief is allow ed 
and  not an action for dam ages.

In e ither case, ap p e llan t’s p resen t action should be 
d ism issed. N either the fac ts  nor the law  b e a r  out his 
orig inal action  for dam ages; nor is appellan t pro- 
cedu ra lly  co rrec t in suing for dam ag es if the police 
officers a ttem p ted  to enforce a seg regation  ord inance 
w hich appellan t now contends is the  m a in  issue.

On page 10 of his brief app e llan t in quoting Vice- 
P res id en t H um phrey, who w as then Senato r H um ph­
rey , contends “ if any governm ent is going to use race , 
color, relig ion or national origin as a basis for dep riv ­
ing the ow ners of an  estab lishm en t of freedom  to



17

choose th e ir custom ers, the choice th a t  will be en­
forced  is desegregation , not seg reg a tio n ” . H ere the 
S tew arts  exerc ised  th e ir choice, and th e ir  choice w as 
not to serve  Tyson. None of the defendan ts h ere  w ere 
a ttem p tin g  to exercise  a seg regation  o rd inance bu t 
in  accord  w ith the very  w ords of the V ice-P residen t of 
the U nited S tates, they  w ere exerc ising  the ir ‘freedom  
to choose th e ir  cu s to m ers’.

A gain on p. 11 of his brief, appellan t in quoting Mr. 
M acG regor s ta te s  th a t Section 202 is lim ited  to those 
situations in w hich a S ta te  is enforcing an  unconstitu ­
tional law  requ iring  segregation . No such  situation  
exists here.

II.

IF  TH E CELEBRITY  LOUNGE DOES FALL 
UNDER TH E CIVIL RIGHTS ACT OF 1964, 
HAS COMPLAINANT FOLLOWED THE 
P R O PE R  PR O C ED U R E?

If it w ere the in tention of the p la in tiff to  have 
b rough t th is action  under the Civil R ights A ct of 1964, 
p la in tiff’s com plaint does not follow the p rocedure  re ­
qu ired  under the 1964 Act. The p rocedure is outlined 
in Section 204(a) of the Civil R ights Act, w hich is 
hereby  quoted as follows:

“ (a) W henever any person  has  engaged  or 
th e re  a re  reasonab le  grounds to believe th a t 
any person  is about to engage in any ac t or 
p rac tice  prohibited  by section 203, a  civil ac ­
tion for preven tive relief, including an app lica­
tion for a p e rm a n en t or te m p o ra ry  injunction.



18

res tra in in g  o rder, or o ther order, m ay  be in­
stitu ted  by the person  aggrieved  and, upon 
tim ely  application , the  court m ay, in its dis­
cretion, perm it the A ttorney  G eneral to in te r­
vene in such  civil action  if he certifies th a t 
the case is of g enera l public im portance . Upon 
app lication  by the com plainan t and in such 
c ircu m stan ces  as the court m a y  deem  just, the 
court m ay  appoint an  a tto rn ey  for such  com ­
p la in an t and  m ay  authorize the  com m ence­
m en t of the civil action w ithout the paym ent 
of fees, costs, or secu rity .”

The Civil R igh ts A ct does not allow  m oney dam ages.

In  Section II, p. 13 of his b rief, appellan t seeks an  in­
junction  ag a in st the  ow ners of the  C elebrity  Lounge 
and  the police officers under Sections 203(a) and (c), 
if the  a llegations of the  com plain t a re  proved. L e t us 
exam ine the  p e rtin en t a rtic le s  of ap p e llan t’s com plain t 
to d e term ine , in the  ligh t of F e d e ra l and S ta te  law , and 
the  C onstitution, if any  cause  ex ists h e r e :

TH E COMPLAINT (pp. 4- 
8 R ecord)

R E A S O N  WHY TH E 
CIVIL RIGHTS ACT AND 
SECS. 1983 AND 1985 A RE 
NOT A PPL IC A B L E:

II. 7.
P la in tiff w as told by an  
em ployee of the  C elebrity  
Lounge th a t they  do not 
se rv e  colored people.

Choice not to serve  w as 
m ade by th e  ow ner or his 
agen t. M iss G ilchrist.



19

II. 8.
M rs. L ydia S tew art, the 
m an ag e r, requested  p la in ­
tiff to leave.

No S ta te  ac tion  because  
the b a r  ow ners requested  
the police to come. No 
consp iracy  w here the  a r ­
re s t is based  on individual 
action.

II. 9.
M rs. S tew art again  told 
p la in tiff to leave. 
D efendan ts a r re s te d  and 
ja iled  p la in tiff and  c h a rg ­
ed h im  w ith being drunk, 
d iso rderly  and  d isturb ing  
the peace.

F reed o m  of choice by 
owner. No conspiracy.
No S ta te  action. Ind iv id­
u a l ow ner requested  ac ­
tion here. No seg regation  
s ta tu te  v io lated  here.

II. 10.
A h earing  w as held and 
p la in tiff w as re leased .

Due process m ust have 
been p r e s e n t  because  
p la in tiff w as re leased .

II. 11.
D efendants m aliciously  
deta ined  plaintiff.

If th is is tru e , the case  
fa lls  into the  v ery  tee th  of 
A rt. 2315, L ouisiana Civil 
Code. No d iversity  here. 
Case m u s t be dism issed.

II. 12.
M alicious prosecution.

T o rt action  under Art. 
2315, L ouisiana Civil Code.



20

II. 13.
P la in tiff
sober.

alleges he w as On a sim ple drunk  charge , 
p la in tiff w as tr ied  and 
acqu itted . M any an  a c ­
cused, under a s im ila r 
charge , would have re l­
ished th is acqu itta l.

III. 14.
C onspiracy. W here? T here  a re  no fac ts  

in  the com plain t, alleging 
any  m eeting  of the  m inds 
betw een the S tew arts  and 
the police officers.

III. 15.
P ub lic  accom m odations, 
un d er color of law  and  of 
the  custom s and usages of 
the  S ta te  of Louisiana.

The S tew arts  chose not to 
se rv e  Tyson. This b a r  is 
no t covered  by  201, and  
202 does no t apply  w here 
the  p ro p rie to r w ishes to 
keep  a. seg reg a ted  b a r.

III. 16.
D enial of due process. P la in tiff w as tr ied  and  ac ­

qu itted  w ith in  tw enty-four 
hours.



21

III. 17.
C onspiracy  to deprive 
p la in tiff of a rig h t g u a ra n ­
teed  to him .

W herein  does the law  
g u aran tee  any m a n  the 
rig h t to dem and  serv ice  a t 
a  b a r  w here the ow ner 
does not w ish to serve 
him .

III. 18.
P la in tiff w as detained, 
em b arra ssed , caused  dis­
com fort, m ade  a  public 
spec tac le  and caused  im ­
p a irm e n t of his re p u ta ­
tion.

T h e s e  a re  allegations 
w hich sound in to r t and 
should be tr ied  under Art. 
2315, L ouisiana Civil Code.

III. 19.
$100,000 dam ages.

No dam ag es allow ed un­
der Civil R igh ts Act. S tew ­
a r ts  w ere  acting  individ­
ually  and, therefo re , do 
not fa ll under 42 U.S.C., 
Section 1983 and  Sec. 1985. 
If th e re  w as no conspir­
acy  on the p a r t  of the 
S tew arts, then  th e ir a l­
leged co-conspira tors can ­
not be guilty  of a  conspir­
acy.



22

III.

DOES THE FED ERA L COURT HAVE JU R IS­
DICTION O F TH IS CAUSE?

We have estab lished  th a t th is case  does not com e 
under the Civil R ights Act nor does it com e under 42, 
U.S.C. 1983 and 1985. The nex t d e term ina tion  would be 
d iversity  of citizenship and the  requisite^ ju risd ic ­
tional am ount. T here is no d iversity  here  and  no serious 
c la im  for m oney dam ages w hich can  su b stan tia te  an 
a llegation  of $10,000.00 and, fu rth e rm o re , if th is action 
is based  on m alicious prosecu tion  as alleged  in the 
com plaint in A rticle 2, P a ra g ra p h  11, then  it should 
have  been brough t under A rticle 2315 of the Civil Code 
of the S ta te  of Louisiana.

Y g lesia s vs. G ulf S trea m  P a rk  R acing  A sso­
ciation, 201 F. 2d 817, which is a  F ifth  C ircuit 
C ourt of A ppeals case, w herein  it w as alleged 
th a t the  Gulf S tream  P a rk  R acing A ssociation, 
acting  under color of law  of the S ta te  of F lo ri­
da, did sub jec t the p la in tiff or cause h e r  to be 
sub jected  to a deprivation  of righ ts  secu red  by 
the  Constitution of the U nited S ta tes  by cau s­
ing h e r to be falsely  im prisoned for an  u n re a ­
sonable period of tim e w ithout bond, and  w ith­
out an  opportunity  to confer w ith Counsel and 
caused  her to  be pu t to tr ia l  on a  c rim in a l 
charge  th ereby  depriv ing h e r  of her lib e rty  
w ithout due p rocess of law  and of the rig h t to 
have a fa ir  tr ia l conducted in accordance w ith 
due p rocess of law. The Court held th a t  this 
w as essen tia lly  a charge of fa lse  im prison ­
m en t and p erhaps m alicious prosecu tion  and



23

therefo re  the com plain t fa ils to s ta te  its c laim  
for re lie f in the scope of 8 USCA Sec. 43. (This 
is now 42 USCA 1983).

CONCLUSION

A ppellan t’s conclusion asks for a rev e rsa l and  re ­
m an d  to  afford  an  opportunity  to prove the allegations 
of his com plaint. L et us suppose I w ere to  adm it the 
a llegations of his com plaint, and for the purposes of a 
m otion for su m m a ry  ju d g m en t w hich w as filed h e re ­
in  don’t  we ad m it the  com pla in t’s well p leaded a llega­
tions, then  does it m ak e  any  d ifference as to the legal 
outcom e of th is m a tte r?

Will Dr. Tyson, John  Doe, E d w ard  Brow n, or A bram  
W hite have  a  rig h t to in sist on drinking a t  a  b a r w here 
the ow ner says. No? I th ink  not. Will all police action 
be called  S ta te  A ction even w hen the individual p ro ­
p rie to r has  req u ested  th a t action?

P ro cedu ra lly , can  appellan t am end  his p leadings 
w ith  a  le tte r  to  the F e d e ra l D istric t, Judge and  an 
a rg u m e n t in his app e lla te  b rie f effecting such an 
am endm ent?

E ven  if this am en d m en t w ere perm issib le , did th e  
defendan ts m ove in under color of s ta te  law  or city 
ordinance req u irin g  seg regation  or w as this the in­
dividual action of the  lounge’s p ro p rie to rs?

Does any m a n  in A m erica  have  a  rig h t anym ore to 
ply any  tra d e  or p rac tice  any  profession in the m a n n er 
he deem s to the  b es t in te res t of h is p a trons and  clients 
and  in  acco rdance  w ith  his own concept as to his busi-



24

ness and professional lim ita tions and  capab ilities, or 
m u s t every  doctor tr e a t  every  pa tien t, m u st ev ery  
law y er tak e  every  case, m u s t every  b u sinessm an  serve  
ev ery  custom er th e reb y  reducing  his ability  to serve  
those he h as  chosen to serve  and to p rac tice  m edicine 
and  law  in the best p rofessional m an n er w ithout c lu t­
te ring  his office or his p rac tice  w ith  too m any  cases, 
p a tien ts  or custom ers?  Thus, in  sum m ariz ing  th is con­
clusion, the answ er to the problem s here in  a re  as fol­
lows:

1. Civil R ights A ct of 1964 does not apply  to 
the C elebrity  Lounge.

2. If it does apply, appellan t has  not followed 
the  p rocedure  outlined in the A ct of 1964.

3. The police officers in th is case  did not ac t 
under any seg regation  o rd inance bu t w ere 
called  upon by the individual action of the 
S tew arts.

4. A ppellant, if he has  any  case  a t  all ag a in st 
th e  police officers, fa lls  under A rticle 2315 
of the L ouisiana Civil Code.

5. M oney d am ag es a re  not allow able under 
the Civil R igh ts A ct of 1964.

6. In o rder to recover under Sections 1983 
and  1985 of T itle 42, U.S.C., p lain tiff m u st 
prove th a t the S tew arts  w ere acting  under 
color of som e s ta tu te , ord inance, reg u la ­
tion, custom  or usage of the s ta te . The ac-



25

tions of Mr. and  M rs. S tew art w ere in­
d ividual actions.

7. T here is no rig h t g ran ted  to the p lain tiff 
to rem ain , unw anted, on the p rem ises  of 
the  C elebrity  Lounge, e ith e r by the Civil 
R ights A ct of 1964 or by Title 42, U.S.C., 
Section 1983 or Section 1985.

8. T here  is no fed era l ju risd ic tion  h ere  be­
cause th e re  is no fed era l offense, nor does 
th is action  p rom ulgate  a  v io lation of the 
fed era lly  g u a ran teed  civil right.

R espectfu lly  subm itted .

(Signed) EDWARD N. ENGOLIO 
EDW ARD N. ENGOLIO 
514 R ailroad  Avenue 
P laquem ine, Louisiana

A ttorney  for A ppellees,
Lt. C larence J. Cazes, O fficer 
Lionel Stein, O fficer L es te r 
H aydel, J r., O fficer Sam uel 
Savage, Chief of Police, Dennis 
Songy



26

CERTIFICATE

I certify  th a t a copy of the foregoing b rie f has been 
served  upon opposing counsel of reco rd  by placing  the 
sam e p roperly  add ressed  in the United S ta tes M ail 
w ith adequa te  postage affixed thereto .



V

Scofields’ Q uality P rin ters, Inc. — N ew  O rleans, La.