Witnesses for Etowah County

    T /L

I n  th e

i^uprmT (to rt of tip Utttfrik &Mzb
O ctober T erm , 1964 

No. 9

Ralph D. Abernathy, Clyde Carter, W illiam S, Coffin, J r., 
J oseph Charles J ones, Bernard S. Lee, J ohn David Maguire, 
Gaylord B. Noyce, F red L. Shuttlesworth, George Smith , 
David E. Swift and W yatt Tee Walker,

Petitioners,
v.

Alabama.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF ALABAMA

BRIEF FOR PETITIONERS

J ack Greenberg
Constance Baker Motley
J ames M. Nabrit, III 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

F red D. Gray
34 North Perry Street 
Montgomery, Alabama

Louis H. P ollak 
127 Wall Street 
New Haven, Connecticut

Attorneys for Petitioners
Leroy D. Clark 
Charles S. C-onley 
Ronald R. Davenport 
F rank H. H effron 
Solomon S. Seay, J r.

Of Counsel

WAMBi' M. NABRIT.* Ills



I N D E X

PAGE

Opinion Below ...... ..........................-.........................—- 1

Jurisdiction ...................- ....-..................................-...... 1

Statutory and Constitutional Provisions Involved......  2

Questions Presented .............. ..... ............ -......................  3

Statement ................................................. -................—- 4

Summary of Argument .............................. - .................. H

A rgum ent :

I. Petitioners’ Criminal Convictions Were Based 
on No Evidence of Guilt....................................... 12

II. The Conviction of the Petitioners on the Basis of 
State Statutes Which, as Construed and Applied,
Are Vague, Indefinite, and Uncertain, Violates 
the Petitioners’ Bights Under the Due Process 
^Clause of the Fourteenth Amendment ...............  16

III. The Arrests and Convictions of Petitioners Con­
stitute Enforcement by the State of the Practice 
of Bacial Segregation in Bus Terminal Facilities 
Serving Interstate Commerce, in Violation of the 
Equal Protection Clause of the Fourteenth 
Amendment, and 49 U. S. C. §316(d), and a Bur­
den on Commerce in Violation of the Commerce
Clause ...................................................................  21

IV. The Decision Below Conflicts With Decisions of 
This Court Securing the Fourteenth Amendment 
Bight to Freedom of Expression, Assembly and 
Beligion....... ...................................-......................  23



11

PAGE

V. The Court Below Deprived Petitioners of Due 
Process and Violated the Supremacy Clause by 
Refusing to Accept the Federal District Court 
Determination That Petitioners Were Arrested
to Enforce Racial Segregation ............................  25

Conclusion  ....................................................................................... 27

T able oe C a ses :

Bailey v. Patterson, 369 U. S. 31 ............................ -12, 22
Barr v. City of Columbia, —— U. S. ——, 12 L. ed. 2d

766 .............................................................................. 14,15
Bigelow v. Old Dominion Copper, 225 U. S. I l l ..........  26
Bouie v. City of Columbia, -----U. S. —— , 12 L. ed.

2d 894 ........................................................................... 17
Boynton v. Virginia, 364 U. S. 454 ................. 12, 22, 23, 25
Buchanan v. Warley, 245 U. S. 60 .............................. 14
Burstyn v. Wilson, 343 U. S. 495 ..............................  23

Connally v. General Const. Co., 269 U. S. 385 ..........  17
Cooper v. Aaron, 358 U. S. 1 ....................................... 14

Deposit Bank v. Board of Councilmen of Frankfort,
191 U. S. 499 ............................................................  27

EdwTards v. South Carolina, 372 U. S. 229 .................  24

Fields v. South Carolina, 375 U. S. 4 4 ........................  24

Garner v. Louisiana, 368 U. S. 157 ................. 14,15, 23, 24
Gayle v. Browder, 352 U. S. 903 ................................12, 22

Henry v. Rock Hill,------ II. :S. ----- , 12 L. ed. 2d 79 .... 24
Herndon v. Lowry, 301 U. S. 242 ............................  18
Hoag v. New Jersey, 356 U. S. 464 ............................  26



U1

PAGE

Lanzetta v. New Jersey, 306 U. S. 451 ..................— 17
Lewis v. Greyhound Corp., 199 F. Supp. 210 (M. D.

Ala. 1961) .................................. ...............6,12,21,25,27
Lombard v. Louisiana, 373 IT. S. 267 ............. .... ...........  22

Mitchell v. State, 41 Ala. App. 254, 130 So. 2d 198 (Ala. 
App. 1961), cert, denied, 130 So. 2d 205 (Ala. Sup.
Ct.) ........................ - ........................................ ...........  16

Morgan v. Virginia, 328 U. -S. 373 ............... ................ 23

NAACP v. Alabama, 357 IT. S. 449 ............................  23

Peterson v. Greenville, 373 U. S. 244 ....... ................. 22
Pierce v. United States, 314 U. S. 306 ........ ..... ... ....... 18

Raley v. Ohio, 360 U. -S. 423 ......................................... 17
Rochin v. California, 342 U. S. 165............................. . 20

Sherman v. United States, 356 U. S. 369 .................  20
Southern Pacific Railroad v. United States, 168 U. S.

1 ......... ............................................ ...........................  26
Stromberg v. California, 283 U. S. 359 ...................19, 24

Taylor v. Louisiana, 370 U. S. 154 ............................15, 22
Thomas v. Collins, 323 U. S. 516 ........... .................. . 19
Thompson v. Louisville, 362 U. S. 199.........................14,15
Thornhill v. Alabama, 310 U. S. 88 ............................  23

United States v. L. Cohen Grocery, 255 U. S. 81..........  17

Watson v. City of Memphis, 373 U. S. 526 ...........   14
Williams v. North Carolina, 317 U. S. 287 ............    19
Wolfe v. North Carolina, 364 U. S. 177 ......................... 25
Wright v. Georgia, 373 U. S. 284 ................. —.14,15,18, 22

Yates v. United States, 354 U. S. 298 ........................  26



IV

S ta tu t e s :
PAGE

U. S. Const., Art. 1, Sec. 8 ................................... 2, 21, 23
TJ. S. Const., Art. 6, par. 2 .......................................... 2, 25
IJ. S. Const., Amendment 1 .................................... 2,4, 23
U. S. Const., Amendment 14 ............................ 2, 3,15,16,

21, 22, 23, 25

28 IT. S. C. §1257(3) ....................................................  1
28 IT. S. C. §2283  ........................................................6,11
49 U. S. C. §316 (d) ..............................................3,21,23
Ala. Code, Tit. 14, §119(1) (Supp. 1961) ...... 2,4,12,13,16
Ala. Code, Tit. 14, §407 (1958) ................................2, 4,14
Ala. Code, Tit. 15, §363 (1958) ...................................  9

Ot h e r  A u t h o r it y :

Restatement of Judgments, Section 68(1) .................  25



I n  t h e

kapron* ©curt of %  lotted l̂ fatFB
O ctober T erm , 1964 

No. 9

R a lph  D. A bernathy , Clyde Carter, W illiam  S. Co e fin , 
J r ., J oseph  Charles J ones, B ernard S. L ee , J ohn  D avid 
M aguire, Gaylord B. N oyce, F red L . S hu ttles  w orth , 
George S m it h , D avid E. S w ift  an d  W yatt T ee W alker,

Petitioners,

Alabama.

O N  W R IT  OF CERTIO RA RI TO T H E  COU RT o f  A PPEA LS o f  ALABAMA

BRIEF FOR PETITIONERS

O pin ion  B elow

The opinion of the Court of Appeals of Alabama in 
Abernathy v. Alabama (R. 237) is reported at 155 So. 2d 
586. The Court of Appeals rendered no opinion in the 
other ten cases but affirmed the convictions on the authority 
of the Abernathy case (R. 288, 329, 372, 666, 415, 458, 499, 
541, 583, 624).

Jurisd iction

The judgment of the Court of Appeals of Alabama in 
each of these cases was entered on October 23,1962 (R. 236, 
288, 329, 372, 666, 415, 458, 499, 541, 583, 624). Rehearing 
was denied on November 20,1962 (R. 248, 289, 330, 373, 667,



2

416, 459, 500, 542, 584, 625). The Supreme Court of Ala­
bama denied certiorari on July 25, 1963 (R. 254).

The jurisdiction of this Court in each of these cases is 
invoked pursuant to Title 28, United States Code, Section 
1257(3), petitioners having asserted below and asserting 
here deprivation of rights secured by the Constitution of 
the United States.

Statutory and Constitutional Provisions Involved

Each of these cases involves Article I, Section 8 (com­
merce clause) and Article VI, paragraph 2 (supremacy 
clause), of the Constitution of the United States. Each 
case also involves the First and Fourteenth Amendments.

Each petitioner was convicted under Code of Alabama, 
Title 14, Section 407 (1958):

If two or more persons meet together to commit a 
breach of the peace, or to do any other unlawful act, 
each of them shall, on conviction, be punished, at the 
discretion of the jury, by fine or imprisonment in the 
county jail, or hard labor for the county, for not more 
than six months.

Every petitioner except Walker was also convicted un­
der Code of Alabama, Title 14, Section 119(1) (Supp. 
1961):

Any person who disturbs the peace of others by vio­
lent, profane, indecent, offensive or boisterous conduct 
or language or by conduct calculated to provoke a 
breach of the peace, shall be guilty of a misdemeanor, 
and upon conviction shall be fined not more than five 
hundred dollars ($500.00) or be sentenced to hard 
labor for the county for not more than twelve (12) 
months, or both, in the discretion of the Court.



3

Each case also involves Title 49, United States Code, 
Section 316(d):

. . .  It shall be unlawful for any common carrier by 
motor vehicle engaged in interstate or foreign com­
merce to make, give, or cause any undue or unreason­
able preference or advantage to any particular person, 
port, gateway, locality, region, district, territory, or 
description of traffic, in any respect whatsoever; or 
to subject any particular person, port, gateway, lo­
cality, region, district, territory, or description of 
traffic to any unjust discrimination or any undue or 
unreasonable prejudice or disadvantage in any respect 
whatsoever: . . . .

Q uestions Presented

I. Were petitioners denied due process of law under the 
Fourteenth Amendment in that their criminal convictions 
for breach of the peace and unlawful assembly were based 
on no evidence of guilt f

II. Were petitioners’ rights under the due process clause 
of the Fourteenth Amendment denied because their convic­
tions for breach of the peace and unlawful assembly were 
based on state statutes which, as construed and applied, are 
vague, indefinite, and uncertain!

III. Did the arrest and conviction of petitioners on 
charges of breach of the peace and unlawful assembly con­
stitute enforcement by, the state of the practice of racial 
segregation in bus terminal facilities serving interstate 
commerce, thus violating petitioners’ rights under the equal 
protection clause of the Fourteenth Amendment, the com­
merce clause, and 49 U. S. C. §316 (d) ?



4

IV. Were the petitioners denied their rights under the 
due process clause of the Fourteenth Amendment, as that 
clause incorporates the First Amendment’s protection of 
freedom of expression, assembly, and religion?

V. Were the petitioners denied their rights under the 
supremacy clause of the Constitution in that the courts of 
Alabama tried and convicted petitioners on charges which 
a United States District Court had already determined were 
intended to perpetuate racial segregation ?

Statement

In the spring of 1961 a wave of civil rights demonstra­
tions known as ‘‘Freedom Rides” swept the south. Their 
purpose was to demonstrate to the country that Negro trav­
elers very often did not enjoy equal rights secured by the 
law (R. 36, 185). The “Freedom Riders” were in a number 
of places greeted with violence, intimidation and arrest. 
Seven of the petitioners in the case at bar were “Freedom 
Riders” (R. 185). The remaining four petitioners sat with 
the seven, their friends, at a lunch counter in the Trailways 
Bus Terminal in Montgomery, Alabama (R. 188).

Petitioners were arrested and convicted for (1) conduct 
calculated to provoke a breach of the peace (Ala. Code, 
Tit. 14, §119(1) (Supp. 1961)) and (2) unlawful assembly 
(Ala. Code, Tit. 14, §407 (1958)). Five petitioners, William 
S. Coffin, Jr., University Chaplain of Yale University, John 
Maguire, Professor of Religion at Wesleyan University, 
Professor Gaylord Noyce of Yale University, David Swift, 
Professor of Religion at Wesleyan University, all of whom 
are white, and George Smith, law student at Yale Uni­
versity, a Negro, left New Haven, Connecticut for New 
York on May 23, 1961 (R. 180-82, 184). From New York 
they took a flight to Atlanta, Georgia and spent the night



5

in Atlanta (E. 182, 184). The following morning they took 
the Greyhound Bus to Montgomery, Alabama (R. 184). The 
five were joined in this trip by petitioners Clyde Carter and 
Joseph Charles Jones, theological students from North 
Carolina, both of whom are Negroes (R. 184). All seven 
arrived in Montgomery on Wednesday, May 24th (R. 184).

Upon, arrival they proceeded directly to the home of 
petitioner Rev. Ralph D. Abernathy (R. 206). Although 
there was a large crowd gathered when they arrived at the 
Greyhound Bus Terminal, there wms very little disturbance 
as they drove from the Terminal to his home (R. 206). The 
next morning, Thursday, May 25th, the seven decided to go 
on to Jackson, Mississippi (R. 184) and were accompanied 
to the Trailways Bus Terminal by petitioners Abernathy, 
Wyatt Walker, Fred Shuttlesworth, all ministers, and Ber­
nard Lee, a theological student; all of these petitioners are 
Negroes (R. 186). By prearrangement they contacted the 
state military authorities before leaving (R. 143). Peti­
tioners were escorted by heavily armed state military con­
voy to the rear of the Trailways Bus Terminal, where they 
were ushered into the white waiting room by military 
guards standing at the door (R. 186). Upon entering the 
white waiting room petitioners planning to travel to Jack- 
son immediately went to the ticket window and purchased 
tickets (R. 188). Petitioner Walker went to make a phone 
call (R. 131). After the tickets were purchased, several of 
the petitioners sat down at the lunch counter located in the 
white waiting room (R. 188). Sheriff Mac Sim Butler there­
upon arrested petitioners because he was instructed to do so 
by Colonel Poarch, Staff Judge Advocate, 31st Division of 
the Alabama National Guard (R. 91, 96).

At the time of arrest, according to Sheriff Butler, some 
four to five hundred persons were outside the terminal and, 
not counting the petitioners, approximately 30 persons were



6

inside—12 of whom were law enforcement officials (R. 84). 
Butler did not ask the petitioners to leave or to refrain 
from any alleged provocative conduct, nor did he hear any­
one else ask the petitioners to leave (R. 103). He did not 
see petitioners engage in obscene, boisterous, or indecent 
conduct (E. 105, 106). And he knew that two previous 
“Freedom Rider” groups had used the facilities of the 
terminal without being arrested (R. 102).

On the day of the petitioners’ arrests, Rev. Abernathy, 
along with several others, instituted an action seeking to 
enjoin the arrest of persons using interstate transportation 
facilities in Montgomery on a desegregated basis (R. 35, 
36). The Attorney General of Alabama and the Circuit 
Solicitor for the Fifteenth Judicial Circuit (encompassing 
Montgomery) were defendants (R. 35). Immediately after 
their arrests, the other ten petitioners filed a motion to 
intervene in the federal court action, which was granted 
May 26, 1961. Lewis v. Greyhound Corp., 199 F. Supp. 210, 
213. Petitioners sought an injunction against the state 
court criminal proceedings arising out of their arrest, but 
Judge Johnson dismissed the action as to the arrests of 
petitioners on the ground that 28 U. S. C. §2283 “precludes 
the granting of such relief.” He stated:

. . .  I want you to understand that the court does not 
find or believe that the arrest of these individuals 
against whom these criminal proceedings are now land­
ing was for any purpose other than to enforce segrega­
tion. As a matter of fact, in the posture of the case, 
the court is of the opinion that the arrest of those indi­
viduals was for the purpose of enforcing segregation 
in these facilities (R. 14).

At petitioners’ trial, Sheriff Butler testified that a riot 
had occurred when the first group of “Freedom Riders”



7

arrived in Montgomery, May 20, 1961. On the day follow­
ing, May 21, 1961, the Governor declared martial law (R. 
86). That same day a hostile, predominantly white crowd 
of well over a thousand persons congregated near the 
church of petitioner Abernathy (R. 89).

Floyd Mann, the Director of Public Safety for the State 
of Alabama, testified that on Saturday, May 20th, when the 
first group of Freedom Riders arrived, he saw fist fights 
between members of the press and private persons and 
between white and colored persons (R. 121). Between the 
date of the first riot and the arrest, a Negro minister was 
shot (R. 124). However, when the petitioners arrived at 
the Trailways Terminal, there were at least a hundred or 
more soldiers outside the terminal as well as thirty-five 
members of Mann’s department along with several motor­
cycle officers of the local police department (R. 129). The 
Director of Public Safety was of the opinion that the crowd 
outside the terminal was under control at the time of the 
arrest (R. 130).

Colonel Poarch estimated the number of persons within 
the terminal at thirty-five to fifty and the crowd outside at 
three hundred (R. 139, 140). After the military had es­
corted petitioners to the terminal, he noticed three white 
“toughs” pouring coffee on the seats of the luncheon coun­
ter. As they were not interstate or intrastate travelers, he 
ordered them out of the station, but he did not arrest them 
even though their conduct was in his opinion, “calculated to 
provoke a breach of the peace” (R. 140, 147). Poarch 
thought it was necessary to arrest the petitioners “Because, 
as I have stated, the air was electric with excitement and 
tension, there were three hundred people outside the sta­
tion who were hostile to these persons.” But he admitted 
that he had not attempted to determine the mood of the 
crowd outside (R. 154).



8

General Graham of the Alabama National Gnard ordered 
Colonel Poarch to order the arrest of the petitioners be­
cause they were acting contrary to community custom (R. 
219). He also testified that there were several hundred mil­
itary personnel on duty outside the terminal (R. 228).

After the arrest Sheriff Butler swore out a warrant and 
affidavit which alleged that each petitioner

. . . did disturb the peace of others by violent, profane, 
indecent, offensive or boisterous conduct or language 
or conduct calculated to provoke a breach of the peace 
in that he did come into Montgomery, Alabama, which 
was subject to martial rule and did wilfully and inten­
tionally attempt to test segregation laws and customs 
by seeking service at a public lunch counter with a 
racially mixed group, during a period when it was 
necessary for his own safety for him to be protected 
by military and police personnel and when the said 
lunch counter building was surrounded by a large num­
ber of hostile citizens of Montgomery (emphasis sup­
plied) (R. 1).

and that each petitioner
. . . did meet with two or more persons to commit a 
breach of the peace or to do an unlawful act, against 
the peace and dignity of the State of Alabama. (Ibid.)

The eleven petitioners were tried and convicted on Sep­
tember 15, 1961, in the Court of Common Pleas of Mont­
gomery County for both breach of the peace and unlawful 
assembly (R. 3). Walker was sentenced to 90 days in jail, 
and the others were sentenced to 15 days in jail with fines of 
$100 and costs (R. 594).



9

An appeal was taken to the Circuit Court of Montgomery 
County1 where the petitioners were tried on the basis of 
the Solicitor’s Complaint which charged that each peti­
tioner2

. . . did disturb the peace of others in Montgomery, 
Alabama, at a time when said city and county were 
under martial rule as a result of the outbreak of racial 
mob action, by conduct calculated to provoke a breach 
of the peace, in that he did wilfully and intentionally 
seek or attempt to seek service at a public lunch coun­
ter with a racially mixed group, at which time and place 
the building housing said lunch counter was surrounded 
by a large number of hostile citizens of Montgomery, 
Alabama, and it was necessary for his own safety for 
him to be protected by military and civil police per­
sonnel (emphasis supplied) (R. 4).

and that each petitioner
. . . did meet with two or more persons to commit a 
breach of the peace or to do an unlawful act, in that 
he did meet with two or more persons in Montgomery, 
Alabama, at a time when said city and county were 
under martial rule as a result of the outbreak of racial 
mob action, for the purpose of wilfully and intention­
ally seeking or attempting to seek service at a public 
lunch counter with a racially mixed group at which 
time and place the building housing said lunch counter 
was surrounded by a large number of hostile citizens 
of Montgomery, Alabama, and it was necessary for his

1 Under Alabama procedure, trial in the Circuit Court is de novo, 
and proceedings are begun bv a Solicitor’s Complaint (Ala. Code, 
Tit. 15, §363) (1958).

2 In the Circuit Court petitioner Walker was charged only with 
unlawful assembly (R. 594).



10

own safety for him to be protected by military and 
police personnel, against the peace and dignity of the 
State of Alabama (emphasis supplied) (Ibid.).

The eleven cases were consolidated for trial, but a sepa­
rate judgment was entered in each (R. 81), Each peti­
tioner was convicted, fined $100 and sentenced to 30 days 
at hard labor (R. 234). Appeal was taken to the Court of 
Appeals of Alabama. Only the Abernathy record contained 
the transcript of trial in the Circuit Court, but pursuant to 
stipulation (R. 59) the Court of Appeals considered the 
transcript a part of the record in each of the other cases. 
The Court of Appeals, by a two to one decision, affirmed 
each judgment of conviction and rehearing was denied. 
Judge Cates, in dissent, stated that the State failed to prove 
beyond a reasonable doubt a “clear and imminent danger 
of breach of the peace,” because there was no proof to his 
satisfaction that the sitting down at the lunch counter 
caused the crowd to gather. Nor was there any evidence 
of an assault upon a militiaman (R. 246). The Supreme 
Court of Alabama denied certiorari (R. 254).

The Trailways Bus Terminal in Montgomery is “leased 
by several interstate carriers including Capitol Motor 
Lines and is subleased by them to an ‘agent,’ R. E. McRae, 
executive official of Capitol Motor Lines. The lunch coun­
ter portion of the terminal is leased by the . . . carriers to 
the Interstate Co., a Delaware Corporation, which in turn 
leases the lunch counter portion of the terminal to Southern 
House, Inc., which operates the lunch counter portion of the 
terminal . . . ” (R. 61).



11

Sum m ary o f  Argum ent

The convictions of the petitioners for breach of the peace 
and unlawful assembly were based on no evidence of guilt. 
Petitioners were at all times polite, quiet, and peaceful. 
There is no evidence of any wrongdoing on their part. 
A breach of peace conviction cannot be sustained merely 
because hostile observers are present. As the convictions 
for breach of the peace must fail for lack of evidence, so 
too must the convictions for unlawful assembly based on 
the alleged breach of the peace.

The breach of the peace and unlawful assembly statutes, 
as construed and applied to petitioners, are unconstitution­
ally vague. The breach of the peace statute afforded peti­
tioners no fair warning that it proscribed their acts. As 
applied to petitioners the statute punishes constitutionally 
protected conduct, and allows the police unfettered discre­
tion to determine when an offense has been committed. 
For the same reasons the unlawful assembly statute, as 
construed and applied, deprives petitioners of due process 
of law.

The act of police and military authorities of escorting 
petitioners to the terminal and then arresting them without 
warning constitutes an entrapment.

Petitioners were arrested to enforce the state’s custom of 
segregation. Their right to use the facilities of the termi­
nal free of state enforced racial discrimination was pro­
tected by the commerce clause and 49 U. S. C. §316(d), as 
well as by the Fourteenth Amendment. Therefore the deci­
sion of the lower court cannot stand.

The conviction of the petitioners of breach of the peace 
and unlawful assembly conflicts with previous decisions of 
this Court protecting the right of freedom of expression,



12

assembly, and religion. The petitioners believed in the 
right of all persons to travel without discrimination; while 
peacefully expressing this belief they were arrested. Their 
protest is constitutionally protected and therefore their 
convictions must fail.

In Lewis v. Greyhound Corp., 199 F. Supp. 210, Judge 
Johnson determined that petitioners were arrested to en­
force the state’s custom of segregation. Since that deter­
mination was made prior to the trial of the petitioners in 
the state Circuit Court, the state court was estopped from 
reaching a different conclusion.

A R G U M E N T

I. P etition ers’ Crim inal C onvictions W ere Based on  
N o Evidence o f  Guilt.

A. Breach o f the Peace

The Solicitor’s Complaint filed in the Circuit Court of 
Montgomery charged, under Title 14, Section 119(1) of the 
Alabama Code, that each petitioner engaged in “conduct 
calculated to provoke a breach of the peace, in that he did 
wilfully and intentionally seek or attempt to seek service 
at a public lunch counter with a racially mixed group . . . ”. 
However, “It is settled beyond question that no state may 
require racial segregation of interstate or intrastate trans­
portation facilities. The question is no longer open; it is 
foreclosed as a litigable issue.” Bailey v. Patterson, 369 
U. S. 31; Boynton v. Virginia, 364 IT. S. 454; Gayle v. 
Browder, 352 U. S. 903.

The State argued that the use of the facilities by peti­
tioners in the “explosive” situation that existed in Mont­
gomery was an abuse of the petitioners’ constitutional 
rights and therefore subject to criminal sanctions. It in-



13

traduced testimony that hostile observers presented a 
threat of violence (R. 117, 139), that violence had occurred 
within the previous week (E. 84, 85), that the air was elec­
tric with excitement (R. 141), that a few white “toughs” 
had poured coffee on the counter seats (R. 140), that an 
“outburst” was heard when petitioners sat down (R. 105), 
and that military and civilian authorities believed that 
arrests were necessary to preserve the peace (R. 141, 147). 
However, this evidence even when viewed most favorably to 
the State, did not establish that petitioners had committed a 
breach of the peace.

The breach of the peace statute, Tit. 14, §119(1), con­
demns conduct which disturbs the peace of others and is 
‘“violent, profane, indecent, offensive or boisterous” or 

J “calculated to provoke a breach of the peace.” The State 
did not contend that petitioners were violent, profane, or in 
any way offensive (R. 105). Nor did the testimony elicited 
by the State support its contention that the sitting of peti­
tioners at the lunch counter either disturbed the peace of 
anyone or was calculated or designed to provoke a breach 
of the peace.

Although violence had ensued upon the arrival of the 
first group of Freedom Riders on May 20th, two groups 
of Freedom Riders used the facilities of the Trailways 
terminal without interference from the police on the day 
before petitioners’ arrests (R. 102). The petitioners were 
provided with an armed military escort to the terminal 
(R. 185). Approximately eighteen soldiers inside and over 
one hundred outside controlled the crowd which, under the 
most generous estimates, did not exceed five hundred (R. 
129, 84). With the exception of an alleged “outburst” (R. 
105), there was not a single incident of violence or unruly 
conduct outside the terminal.



14

In these circumstances, petitioners were justified in be­
lieving that their right to request service at the lunch coun­
ter would be protected. The record establishes without con­
tradiction that petitioners were orderly at all times and 
innocent of any wrongful conduct. They were not warned 
to remain away from the counter. When they sat down, 
they were not even asked to withdraw, but were summarily 
arrested.

Thus the conviction of petitioners for breach of the peace 
is based on no evidence of guilt and Thompson v. Louis­
ville, 362 U. S. 199, applies. Mere evidence that the pres­
ence of peaceful Negro and white persons sitting at a lunch 
counter might move onlookers to commit acts of violence 
is insufficient to support a conviction for breach of the
peace. Barr v. City of Columbia,----- U. S. •—-—, 12 L. ed.
2d 766.

Even assuming that a volatile situation did exist, peti­
tioners cannot be punished for the innocent assertion of 
fundamental constitutional rights. “ [T]he possibility of 
disorder by others cannot justify exclusion of persons from 
a place if they otherwise have a constitutional right 
(founded upon the Equal Protection Clause) to be pres­
ent.” Wright v. Georgia, 373 U. S. 284, 293. See also 
Cooper v. Aaron, 358 U. S. 1, 27; Buchanan v. Warley, 245 
U. S. 60; Garner v. Louisiana, 368 U. S. 157; cf. Watson 
v. City of Memphis, 373 U. S. 526, 535 (“constitutional 
rights may not be denied simply because of hostility to their 
assertion or exercise”).

B. Unlawful Assem bly

Title 14, Section 407 of the Alabama Code makes it a 
crime when “two or more persons meet together to com­
mit a breach of the peace, or to do any other unlawful 
act. . . . ” Clearly, there is no evidence that petitioners



15

met together to commit a breach of the peace, as that term 
is normally understood.3 Petitioners were at all times or­
derly and did no more than exercise an undisputed con­
stitutional right. Moreover, there is no evidence whatever 
of the commission of any other unlawful act. Thus the ap­
plicability of Thompson v. Louisville, supra, seems undeni­
able.

For the same reasons that the breach of peace conviction 
must fall, the convictions for unlawful assembly are vulner­
able. There simply is no evidence of wrongdoing. As this
Court said in Barr v. City of Columbia,----- U. S. ------ ,
12 L. ed. 2d 766, 769:

. . . [T]he only possible relevant evidence which we 
have been able to find in the record, is a suggestion 
that petitioners’ mere presence seated at the counter 
might possibly have tended to move onlookers to com­
mit acts of violence. , . . [BJecause of the frequent 
occasions on which we have reversed under the Four­
teenth Amendment convictions of peaceful individuals 
who were convicted of breach of the peace because of 
acts of hostile onlookers, we are reluctant to assume 
that the breach-of-peace statute covers petitioners’ 
conduct here.

See also Garner v. Louisiana, 368 U. S. 157; Taylor v. 
Louisiana, 370 U. S. 154; Wright v. Georgia, 373 U. S. 
284.

3 The Alabama Court of Appeals’ expansion of the meaning of 
“breach of the peace” is challenged infra, Argument II, as a denial 
of due process of law.



16

II. The Conviction of the Petitioners on the Basis of 
State Statutes Which, as Construed and Applied, Are 
Vague, Indefinite, and Uncertain, Violates the Peti­
tioners’ Rights Under the Due Process Clause of the 
Fourteenth Amendment.

A. Breach o f the Peace

The breach of the peace statute which was the basis for 
the conviction of petitioners provides in part:

Any person who disturbs the peace of others by vio­
lent, profane, indecent, offensive or boisterous conduct 
or language or by conduct calculated to provoke a 
breach of the peace, shall be guilty of a misdemeanor 
. . . (Ala. Code, Tit. 14, §119(1) (Supp. 1961)).

In affirming petitioners’ convictions the Alabama Court of 
Appeals held, “No specific intent to breach the peace is 
essential to a conviction for a breach of the peace. . . . 
Nor is it necessary to constitute the offense of a breach 
of the peace that the proof show the peace has actually 
been broken . . . (R. 245). This holding is contrary to the 
plain language of §119(1). No Alabama decisions were 
cited in support of this construction of the statute and, 
indeed, there were none.4

The Court of Appeals also held that petitioners’ convic­
tions could be sustained without any proof of “violent, 
profane, indecent, offensive or boisterous” conduct (R. 
246). However, the phrase “conduct calculated to provoke

4 The only Alabama ease approaching a construction of the 1959 
statute (Tit. 14, §119(1)) is Mitchell v. State, 41 Ala. App. 254, 
130 So. 2d 198 (Ala. App. 1961), cert, denied, 130 So. 2d 205 
(Ala. Sup. Ct.). In that case a conviction was reversed because 
the complaint, which alleged merely that the defendant engaged in 
“conduct calculated to provoke a breach of the peace,” was held 
to be too vague.



17

a breach of the peace” is extremely difficult to define, and 
criminal statutes should be construed narrowly. Any in­
terpretation of that phrase that is not closely related to the 
types of conduct specifically described is both unreason­
able and unforeseeable.

■Criminal laws must explicitly define crimes sought to be 
punished so as to give fair notice as to what acts are pro­
hibited. As was held in Lametta v. New Jersey, 306 U. S. 
451, 453, “no one may be required at peril of life, liberty 
or property to speculate as to the meaning of penal stat­
utes. 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; Connolly v. General Const. Co., 269 IT. S. 
385; Raley v. Ohio, 360 IT. S. 423.

Section 119(1), as construed and applied, did not afford 
petitioners fair warning. Petitioners did not actually dis­
turb the peace of others, as a sound reading of the statute 
would require, nor is there any proof that they intended 
to do so. Moreover, it was neither alleged nor proven that 
petitioners were “violent, profane, indecent, offensive or 
boisterous.” Disregarding the fact that petitioners were 
engaged in innocent conduct, the Court of Appeals of Ala­
bama upheld their convictions by a broad and indefinite 
expansion of the phrase “conduct calculated to provoke a 
breach of the peace.”

Petitioners had no way of knowing that the statute would 
be extended to include their actions. The statute as nar­
rowly drawn by the Legislature, lulled them “into a false
sense of security.” Bouie v. City of Columbia,-----  U. S.
----- , 12 L. ed. 2d 894, 899. To allow this construction of
the act to cover conduct which a normal reading of it would 
not reveal as being violative of its provisions, would be 
like applying a new act retroactively.



18

There can be no doubt that a deprivation of the right 
of fair warning can result not only from vague statu­
tory language but also from an unforeseeable and 
retroactive judicial expansion of narrow and precise 
statutory language. As the Court recognized in Pierce 
v. United. States, 314 TJ. S. 306, 311, “judicial enlarge­
ment of a criminal act by interpretation is at war with 
a fundamental concept of the common law that crimes 
must be defined with appropriate definiteness.” Id. at 
899.

Not only did the court surprise defendants by giving the 
law a new and broad construction, it also gave the act an 
interpretation of undue elasticity. The statutory language 
“conduct calculated to provoke a breach of the peace” can 
now be used to justify conviction for entirely innocent 
conduct whenever others threaten to act unlawfully in re­
sponse to that conduct. Where a statute is so vague and 
uncertain as to make criminal an utterance or an act which 
may be innocently said or done with no intent to induce 
resort to violence, a conviction under such a law cannot 
be sustained. Herndon v. Lowry, 301 U. S. 242.

Thus, “this case falls within the rule that a generally 
worded statute which is construed to punish conduct which 
cannot constitutionally be punished is unconstitutionally 
vague to the extent that it fails to give adequate warning 
of the boundary between the constitutionally permissible 
and constitutionally impermissible applications of the stat­
ute.” Wright v. Georgia, 373 U. S. 284.

B. U nlawful A ssem bly

The same reasoning and authorities apply to the con­
victions for unlawful assembly. Count 2 of the Solicitor’s 
Complaint charges that petitioners “did meet with two or



19

more persons to commit a breach of the peace or to do 
an unlawful act . . . ” As the petitioners were charged 
under the alternative words of the statute, they cannot 
know whether the State claims that they met to commit a 
breach of the peace or met to commit some other unlawful 
act. Assuming for sake of argument, as the petitioners 
were convicted of a breach of the peace, that the gravamen 
of the crime charged to the petitioners is that they met to 
commit a breach of the peace, the conviction for unlawful 
assembly still cannot be sustained. Normally breach of the 
peace, as is evident from the original affidavit filed by the 
sheriff (E. 1) and the complete text of the breach of the 
peace statute in Alabama, refers to “violent, profane, in­
decent, offensive or boisterous conduct.” There were no 
prior constructions of this statute which would have placed 
the petitioners on notice that the statute applied to inno­
cent activity which might provoke others to unlawful acts 
of opposition. Certainly the text of the statute would not 
inform petitioners that it was subject to such a construc­
tion.

If it is assumed that the gravamen of the petitioners’ 
crime was that they met to commit some unlawful act, then 
the conviction certainly must fall. At all times the acts of 
the petitioners were constitutionally protected and therefore 
not subject to criminal sanctions. The charge of meeting 
to commit any unlawful act fails to provide any warning 
that a legally and Constitutionally protected activity—sit­
ting in an integrated group at a lunch counter—can be 
punished as unlawful.

If either of the statutory clauses is unconstitutionally 
vague, the conviction under it must be reversed for it can­
not be known which part was relied upon by the trial or 
appellate courts. Stromberg v. California, 283 U. S. 359; 
Thomas v. Collins, 323 U. S. 516; Williams v. North Caro­
lina, 317 U. 'S. 287.



20

C. E ntrapm ent

Moreover, the conviction of the petitioners on both 
charges is further impaired by the fact that their acts were 
induced by the authorities. Petitioners were escorted to 
the terminal by the military authorities. They were al­
lowed to purchase their tickets and to use the “white” 
waiting room. They were not warned that their subsequent 
act of using the facilities of the lunch counter would pro­
voke the crowd outside to violence. Nor were they asked 
to leave the counter after they sat down. The military au­
thorities’ attitude and actions manifested absolute control 
of the situation both inside and outside the terminal. For 
the police and military authorities to induce, suggest, or 
tacitly approve conduct, and then deem it illegal is in the 
nature of an entrapment. Sherman v. United States, 356 
U. S. 369. It “offends a sense of justice,” Bochin v. Cali­
fornia, 342 U. S. 165, 173, to allow prosecution to follow 
in such a situation. “To determine whether entrapment 
has been established, a line must be drawn between the 
trap for the unwary innocent and the trap for the unwary 
criminal.” Sherman v. United States, supra. It is clear 
that in the instant ease the court below has so drawn the 
line as to include the innocent petitioners who were at all 
times engaged in constitutionally protected conduct.



21

III. T he Arrests and Convictions o f  P etition ers Con­
stitute E nforcem ent by the State o f  the Practice o f  
R acial Segregation in  Bus T erm inal Facilities Serving  
Interstate Com m erce, in  V iolation  o f  the Equal Protec­
tion  Clause o f  the Fourteenth  A m endm ent, and 4 9  
U. S. C. § 3 1 6 ( d ) ,  and a Burden on  Com m erce in  V io­
la tion  o f  the Com m erce Clause.

Petitioners were arrested to enforce the state “custom” 
of segregation. Judge Johnson so concluded in Lewis v. 
Greyho'imd Corp., 199 F. Supp. 210 (M. I). Ala. 1961), and 
the record here is clear. The testimony of Sheriff Butler 
and General Graham leads unquestionably to the conclu­
sion that the law enforcement officials’ act of arresting the 
petitioners was part and parcel of the pre-existing state 
practice of racial segregation. Both indicated in their tes­
timony that the motivating factor in the decision to arrest 
petitioners was that the petitioners dared challenge the 
state “custom” of segregation.5 And certainly it stretches

5 At the trial of the petitioners in the Circuit Court, Sheriff Mac 
Sim Butler, when asked on cross-examination whether or not he 
had seen the petitioners do anything, testified:

A. Yes, sir, I did. I saw them do something that 1 thought 
might cause a riot.

Q. What was it? A. They came in as a mixed crowd and 
immediately sat down and ordered coffee at a white lunch 
counter. At that time they were arrested (R. 97).

Later in the cross-examination, counsel questioned the sheriff 
about the warrant which was the basis of conviction of the peti­
tioners in the lower court.

Q. And just one other question about the warrant. You 
further say in this warrant he did wilfully and inten­
tionally attempt to test the segregation laws and customs by 
seeking service at a public lunch counter with a racially mixed 
group. As the chief law enforcement officer of this county, sir, 
can you tell us what particular laws you had in mind, if any ? 
A. I don’t know what particular code it would be, but I am 
sure, lawyer, that you know our lunch stands, cafes and other 
places are segregated (R. 106). (continued)



22

the limits of credulity to explain the arrest of peaceful per­
sons whereas the white “toughs” who poured the coffee on 
the seats of the counter were merely removed from the 
station without charges being brought against them.

There can be no question that petitioners were within 
their rights in seeking service at the bus terminal lunch 
counter. Bailey v. Patterson, 369 U. S. 31; Boynton v. 
Virginia, 364 U. S. 454; Browder v. Gayle, 352 XJ. S. 903; 
Taylor v. Louisiana, 370 U. S. 154. A state cannot require 
eating establishments to segregate or enforce its own pol­
icy of segregation by prosecution of those who would chal­
lenge segregation. Peterson v. Greenville, 373 U. S. 244; 
Lombard v. Louisiana, 373 U. S. 267. Where interstate 
transportation facilities are involved, the state’s intrusion 
is particularly indefensible. As in Wright v. Georgia, the 
command of General Graham to arrest the petitioners was 
doubly a violation of petitioners’ Fourteenth Amendment 
rights:

It was obviously based, according to the testimony of 
the questioning officers themselves, upon their intention 
to enforce racial discrimination in the park. For this 
reason the order violated the Equal Protection Clause 
of the Fourteenth Amendment . . .

General Graham, who ordered the arrest of the petitioners, when 
asked why he so acted testified as follows:

Q. What was it, General, that led you to conclude that these 
defendants should be arrested! A. Well, it was the act of 
sitting together as a group contrary to the custom, long estab­
lished custom here in this community under the circumstances.

Q. What custom had you in mind, General Graham! A. 
White people eat one place and colored eat another, which is 
a long established custom pretty well recognized by both 
parties here in Montgomery.

Q. And it was the violation by these defendants of that 
custom! A. Under these circumstances (R. 219).



23

The command was also violative of petitioners’ rights 
because as will be seen, the other asserted basis for the 
order—the possibility of disorder by others—could not 
justify exclusion of the petitioners from the park (373 
U. S. at 292).

This use of the state’s machinery also conflicts with the 
statute forbidding discrimination in facilities operated by 
interstate motor carriers, 49 U. S. C. §316(d); Boynton- v. 
Virginia, supra, and constitutes an unlawful burden on 
commerce in violation of Article I, Section 8 of the Con­
stitution, Morgan v. Virginia, 328 U. S. 373.

IV. T he D ecision  B elow  C onflicts W ith D ecisions o f  
T his Court Securing the Fourteenth A m endm ent Right 
to Freedom  o f  E xpression , Assem bly and R elig ion .

The decision below contravenes petitioners’ rights of 
freedom of expression, assembly and religion. Their act 
of sitting together at the lunch counter in the Trailways 
Terminal, was an expression of their moral and religious 
belief that segregation is inconsistent with the Christian 
ethic (R. 183). It was an entirely peaceful demonstration 
of this view as well as an attempt to secure a cup of coffee. 
It thus falls within the protection of the First Amendment. 
Garner v. Louisiana, 368 U. S. 157; Burstyn v. Wilson, 
343 U. S. 495; NAACP v. Alabama, 357 U. S. 449; Thorn­
hill v. Alabama, 310 U. S. 88.

The conduct of petitioners is analogous to the acts of the 
defendants in Garner v. Louisiana, who were convicted of 
disturbing the peace for conducting a peaceful sit-in at a 
white lunch counter. Recognizing the breadth of the First 
Amendment, Justice Harlan, concurring, wrote:



24

We would surely have to be blind not to recognize that 
petitioners were sitting at these counters, where they 
knew they would not be served, in order to demonstrate 
that their race was being segregated in dining facili­
ties in this part of the country. Such a demonstration, 
in the circumstances of these two cases, is as much a 
part of the “free trade” in ideas . . .  thought of as speech. 

# # # # #

If the act of displaying a red flag as a symbol of 
opposition to organized government is a liberty en­
compassed within free speech as protected by the 
Fourteenth Amendment, Stromberg v. California, 283 
U. S. 359, the act of sitting at a privately owned lunch 
counter with the consent of the owner, as a demonstra­
tion of opposition to enforced segregation, is surely 
within the same range of protections (368 U. S. at 
201, 202).

And see Edwards v. South Carolina, 372 IT. S. 229; Fields
v. South Carolina, 375 IT. S. 44; Henry v. Rock H ill,-----
U. S.----- -, 12 L. Ed. 2d 79.



25

V. T he Court B elow  D eprived  P etitioners o f  D u e  
Process and V iolated the Suprem acy Clause by R efus­
ing  to A ccept the Federal D istrict Court D eterm ination  
That P etition ers W ere Arrested to E n force Racial Seg­
regation.

Judge Johnson, in a case involving all of the parties in 
this case and the incident involved here, Lewis v. Greyhound 
Corp., 199 F. Supp. 210 (M. D. Ala. 1961), concluded as 
a matter of fact that petitioners were arrested to enforce 
the state’s custom of segregation.6 Although he so con­
cluded he refused to grant petitioners’ motion to enjoin 
the criminal prosecutions in the state courts. The state 
court, completely ignoring Judge Johnson’s conclusion, con­
victed petitioners of breach of the peace and unlawful as­
sembly. The refusal of the trial court to admit the deter­
mination by Judge Johnson that petitioners were arrested 
to enforce the state custom of segregation violated peti­
tioners’ rights under the due process clause of the Four­
teenth Amendment, and the supremacy clause (Article VI) 
of the United States Constitution. If the arrest of the 
petitioners was to enforce the state’s custom of segrega­
tion, this would be, even in the state courts, a complete 
defense to the charges. Boynton v. Virginia, supra; Wolfe 
v. North Carolina, 364 U. S. 177, 197 (dissenting opinion 
of Chief Justice Warren). The essential question is, there­
fore, whether or not the state courts were estopped from 
reaching a different conclusion as to the reason for the 
arrest of the petitioners.

The Restatement of Judgments, Section 68(1), on the 
question of collateral estoppel states: “ . . . where a ques­
tion of fact essential to the judgment is actually litigated

6 The Federal Court record was introduced at trial and is a part 
of the record on file in this Court although it was not printed in 
this Court.



and determined by a valid and final judgment, the deter­
mination is conclusive between the parties in a subsequent 
action on a different cause of action.” Nor is it important 
that the proceedings were criminal in nature. Although the 
rule was originally developed in connection with civil liti­
gation, it has been widely used by the state and federal 
courts in criminal cases. See Hoag v. New Jersey, 356 
U. S. 464. As was said by this Court in Yates v. United 
States, 354 U. S. 298, 335, “the doctrine of collateral 
estoppel is not made inapplicable by the fact that this is a 
criminal case, whereas the prior proceedings were civil in 
character.” The judgments and decrees of a federal court 
are entitled to the same force and effect, so far as res 
judicata and collateral attack are concerned, as would be 
accorded the judgment of record of a state court under 
similar circumstances. Bigelow v. Old Dominion Copper 
Co., 225 U. S. 111.

In Southern Pacific Railroad v. United States, 168 U. S. 
1, Justice Harlan reviewed the decisions of this Court on 
the doctrine of res judicata. His opinion summarizes the 
governing law in this ease:

The general principle announced in numerous cases 
is that a right, question, or fact, distinctly put in issue 
and directly determined by a court of competent juris­
diction as a ground of recovery, cannot be disputed in 
a subsequent suit between the same parties or their 
privies; and even if the second suit is for a different 
cause of action, the right, question, or fact once so 
determined must, as between the same parties or their 
privies, be taken as conclusively established, so long 
as the judgment in the first suit remains unmodified. 
Id. at 48.

The fact that the state rather than private persons was 
involved is unimportant. A federal court judgment which



27

operates as a bar against a subsequent suit in the state 
court as to private parties would operate as a bar against 
the state as well. Deposit Bank v. Board of Councilman 
of Frankfort, 191 U. S. 499.

Thus the factual determinations of the federal court in 
Lewis v. Greyhound Corp., supra, precluded the state court 
from reaching a different conclusion.

CONCLUSION

W herefore, fo r  th e  fo reg o in g  reaso n s, th e  ju d g m en t 
below  shou ld  be rev ersed .

Respectfully submitted,

J ack Greenberg
C onstance B aker M otley
J ames M. R abbit, III 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

F red D. Gray
34 North Perry Street 
Montgomery, Alabama

Louis H . P ollak 
127 Wall Street 
New Haven, Connecticut

Attorneys for Petitioners

L eroy D. Clark 
Charles S . Conley 
F rank  H. I I effron  
R onald R . D avenport 
S olomon S. S eay, J r. 

Of Counsel



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