Garner v. Louisiana Motion for Leave to File Brief and Brief Amicus Curiae

    I n  t h e

Supreme Court of the United States
October Term, 1961

No. 2 6 — J ohn Burrell Garner et al., Petitioners, 
v. State of L ouisiana

No. 27 — Mary B riscoe et al., Petitioners, 
v. State of L ouisiana

No. 28-— J annette H oston et al., Petitioners, 
v, State of L ouisiana

On Writs of Certiorari to the Supreme Court of Louisiana

MOTION FOR LEAVE TO FILE BRIEF 
AND BRIEF AMICUS CURIAE FOR THE COMMITTEE 
ON THE BILL OF RIGHTS OF THE ASSOCIATION OF 

THE BAR OF THE CITY OF NEW YORK

W illiam A. Delano 
J ohn R. F ernbach 
Murray A. Gordon 
Martin F . B ichman

Attorneys for Amicus Curiae 
42 West 44th Street 
New York 36, New York



I n  t h e

Supreme Court of the United States
October Term, 1961

No. 26 — J ohn B urrell Garner et al., Petitioners, 
v. State oe Louisiana

No. 27 — Mary B riscoe et al., Petitioners, 
v. State of Louisiana

No. 28 — J annette H oston et al., Petitioners, 
v. State of L ouisiana

On Writs of Certiorari to the Supreme Court of Louisiana

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
FOR THE COMMITTEE ON THE BILL OF RIGHTS OF 

THE ASSOCIATION OF THE BAR OF THE 
CITY OF NEW YORK

To the Chief Justice and the Associate Justices of the 
Supreme Court of the United States:

This motion of the Committee on the Bill of Rights of 
The Association of the Bar of the City of New York for 
leave to file the annexed brief amicus curiae is made pur­
suant to Rule 42, consent to the filing of a brief having 
been withheld by respondent.



2

The Association of the Bar of the City of New York, 
presently comprised of more than 7,000 lawyers admitted 
to practice in the State of New York, has since its organi­
zation in 1871 been active in expressing and implementing 
considered views on local, state and national matters affect­
ing the law and the legal profession. These functions of 
the Association are generally performed through a com­
mittee responsible for the relevant subject-matter, acting 
by means of resolutions, reports, testimony before legisla­
tive committees and, on occasions when issues of paramount 
importance and special interest to the Bar are involved, as 
here, by participation as amicus curiae in pending litiga­
tion. The Association’s Committee on the Bill of Rights 
is charged by the By-Laws of the Association with responsi­
bility for matters relating to those provisions of the United 
States Constitution “ which are directed at protecting the 
individual against oppression by government.”

The grant of certiorari by the Court in these cases 
emphasizes the fact that they evoke questions of national 
significance considerably beyond the usual implications of 
local prosecutions of individuals for “ disturbing the 
peace.” Directly involved here is the question whether a 
State denies the equal protection of the laws, within the 
purview of the Fourteenth Amendment, by the arrest and 
conviction of persons (in these cases, Negroes) for peace­
ably seeking service of food on a non-discriminatory basis 
in commercial establishments open to the public. Although 
other questions and arguments are being advanced by 
petitioners, the Committee on the Bill of Rights believes 
—and has limited the annexed brief amicus curiae accord­
ingly—that the decision of the Court should meet squarely 
the issue presented here of State enforcement of racial 
discrimination in such commercial establishments. If it 
does not do so, the present uncertainty as to the applicable 
law will continue to invite testing by persons on both sides 
of the issue, with resulting harm to the communities in­
volved and to the Nation.



3

This Committee also considers that these cases raise 
fundamental questions concerning the judicial power and 
function. Courts traditionally are empowered to act where 
conflicts extend to an area of cognizable property rights. 
However, Shelley v. Kraemer, 334 U. S. 1 (1948), estab­
lishes that no organ of the State, and more particularly its 
judiciary, may serve as the instrument of constitutionally 
prohibited racial discrimination. An underlying issue here 
is whether the holding in Shelley should be departed from 
in these cases because they arise in a context of potential 
community tension. This committee of lawyers particu­
larly concerned with effectuation of the protections of the 
Constitution for individual freedom has a concrete interest 
as amicus curiae in cases which thus appear likely at least 
to illumine, and perhaps to define, a vital aspect of the 
scope of the judicial function and power within the limita­
tions of the Constitution.

W herefore, i t  is respectfully prayed th a t this motion 
for leave to file the annexed brief amicus curiae be granted.

Respectfully submitted,

W illiam A. Delano 
J ohn R. F ernbach 
Murray A. Gordon 
Martin F . R ichman

Attorneys for Amicus Curiae



I N D E X

Interest of Amicus Curiae ..........................................  1

Question Presented .....................................................  2

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

Summary of Argument................................................  7

Argument ...................................................................... 8

I ...........................................................................  9
I I ...........................................................................  13

H I ...................................................................    17

Conclusion.... ...................    20

PAGE

CITATIONS

Cases

Baldwin v. Morgan, 287 F. 2d 750 (5th. Cir. 1961) ...... 13,16
Baltimore v. Dawson, 350 U. S. 877 (1955) .................  11
Barrows v. Jackson, 346 U. S. 249 (1953) ...................10,11
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir. 1960) ........................................................ 12,15,18
Boman v. Morgan, 4 Race Rel. L. Rep. 1027 (1ST. D.

Ala. 1959) .......................... ....................................  16
Boynton v. Virginia, 364 U. S. 454 (1960) .................16,18
Breard v. Alexandria, 341 U. S. 622 (1951) .................  18

[ i ]



[ i i ]

Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala, 1956) ..11,15 
Brown v. Board of Education, 347 U. S. 483 (1954) .... 11
Buchanan v. Warley, 245 U. S. 60 (1917) ...................101, 12
Burton v. Wilmington Parking Authority, 365 U. S.

715 (1961) ...........................................................9', 10,17

California Inter-Insurance Bureau v. Maloney, 341
U. S. 105 (1951) .................................................... 14

Civil Rights Cases, 109 U. S. 3 (1883) ...................... 10,13
Cooper v. Aaron, 358 U. S. 1 (1958) ............................  19

Flemming v. South Car. Elec. & Gas Co., 239 F. 2d
277 (4th Gir. 1956) ................................................  15

Freeman v. Retail Clerks Union, 45 Lab. Bel. Ref.
Man. 2334 (Wash. Super. Ct. 1959) ..................... 14

Gayle v. Browder, 352 U. S. 903 (1956) ..........11,12,15', 16

Holmes v. Atlanta, 350 U. S. 879 (1955) ..................... 11
Hurd v. Hodge, 334 U. S. 24 (1948) ............................  10

Marsh v. Alabama, 326 U. S. 501 (1946) ..........10,11,12,13
Morgan v. Virginia, 328 U. S. 373 (1946) ...................  19

NAACP v. Alabama, 357 U. S. 449 (1958) ...................  10

People v. Barisi, 193 Mise. 934, 86 N. Y. S. 2d 277
(Magis. Ct. 1948) .................................................. 14

San Diego Bldg. Trades Council v. Garmon, 359 IT. S.
236 (1959) ..............................................................  20

Shelley v. Kraemer, 334 U. S. 1 (1948) ........7, 9,10,11,12,
13,14,15, 20

State v. Williams, 44 Lab. Bel. Ref. Man. 2357 (Balti­
more Crim. Ct. 1959)

PAGE

14



[ i i i  3

Takahashi v. Fish and Game Comm’n, 334 U. S. 410
(1948) ....................................................................  10

Thornhill v. Alabama, 310 U. S. 88 (1940) .................  20

United States v. Parke, Davis & Go., 362 U. S. 29
(1960) ....................................................................  14

Statutes

42 U. S. C. §1982 ...........................................................  10
Civil Rights Act of 1866, 14 Stat. 27 ..........................  10
La. Rev. Stat. §14:103 (1950) ....................................... 3, 8
La. Rev. Stat. §§14:103, 14:103.1 (Supp. 1960) .......... 3
NT. C. Gen. Stats. §14-134 (1953) ...................................  9

Miscellaneous

Pollitt, “ Dime Store Demonstrations: Events and 
Legal Problems of First Sixty Days,” 1960 Duke 
L. J. 315 ................................................................  9,14

Sehwelb, ‘ ‘ The Sit-In Demonstration: Criminal Tres­
pass or Constitutional Right?” 36 N. Y. U. L.
Rev. 779 (1961) .....................................................  19

New York Times, April 23, 1960, p. 21, col. 1 .............  14
New York Times, June 6, 1960, p. 1, col. 2; June 24,

I960, p. 1, col. 6; July 25,1960, p. 1, col. 8; August 
11, 1960, p. 14, col. 5; October 18, 1960, p. 47, col.
5; January 22, 1961, p. 72, col. 8; May 7, 1961,
§4, p. 10, col. 1 .......................................................

PAGE

19



I n  t h e

Supreme Court ©f the United States
October Term, 1961

----------  a— ♦ — ------ ------

No. 26 — J ohn B urrell Garner et al., Petitioners, 
v. State of Louisiana.

No. 27 — Mart Briscoe et al., Petitioners, 
v. State of L ouisiana

No. 28 — .!annktte H oston et al., Petitioners, 
v. State of L ouisiana

On Writs of Certiorari to the Supreme Court of Louisiana 

---------- » —  ---------

BRIEF AMICUS CURIAE
FOR THE COMMITTEE ON THE BILL OF RIGHTS OF 

THE ASSOCIATION OF THE BAR OF THE 
CITY OF NEW YORK

Interest of Amicus Curiae
The interest of the Committee on the Bill of Rights of 

The Association of the Bar of the City of New York as 
amicus curiae and the reasons for submitting this brief 
are set forth in the annexed Motion for Leave to File Brief.



2

Question Presented

This brief is addressed to the question whether a State 
denies the equal protection of the laws by arresting and 
convicting for disturbing the peace Negroes who peaceably 
seek service by remaining seated at a lunch counter located 
in a commercial establishment open to the public.

Statement

These cases have been brought here on writs of cer­
tiorari to review convictions in a court of the State of 
Louisiana of persons who were arrested for disturbing the 
peace when they remained seated at public lunch counters 
located in commercial establishments after being refused 
food service because they were Negroes. These are the 
first cases to bring before the Court the issue of State 
enforcement of racial discrimination in the context of what 
have come to be known as “ sit-ins.” A statement of the 
facts relied on in the argument submitted in this brief of 
amicus curiae is presented here for the convenience of the 
Court, without intending to duplicate the statements of the 
facts of the individual cases set forth in the briefs of the 
parties.

In Garner, No. 26, the two petitioners are Negro men, 
college students in Baton Rouge, Louisiana (R. 8). They 
entered Sitman’s Drug Store in downtown Baton Rouge 
on March 29, 1960, and sat down at the lunch counter 
(R. 30). The owner told them they could not be served, but 
one of them replied that they wanted coffee and both re­
mained seated at the counter (R. 30). The policeman on 
the beat was in the store at the time and he, apparently 
without complaint from anyone else, called superior officers 
from headquarters (R. 31, 34-35). The latter advised peti­
tioners that they were violating the “ disturbing the peace”



3

law,* 1 2 3 4 5 6 7 and requested them to leave (R. 35). Petitioners 
refused, and were arrested (R. 35-37).

The store owner testified that Negroes are served at the 
counters in the drug store section of his establishment—he 
said they “ are very good customers” (R. 32)—-but that he 
does not “ have the facilities” for serving Negroes at the 
lunch counter in the adjoining coffee shop section (R. 31- 
32). One of the petitioners told the police officer he had 
purchased an umbrella in the store (R. 35). When peti­
tioners entered, at the noon hour, there were white cus­
tomers seated at the counter, but the owner could not recall 
how many (R. 33). No customers complained to him, he 
did not speak to the police officers, and no one else com­
plained to them (R. 33, 34-35).

1. The police captain in his testimony referred to “Act 103“ 
(R. 35). At the time of the events in question here, La. Rev. Stat. 
§14:103 (1950) provided:

“Disturbing the peace is the doing of any of the following 
in such a manner as would foreseeably disturb or alarm the 
public:

(1) Engaging in a fistic encounter; or
(2) Using of any unnecessarily loud, offensive, or insulting 

language; or
(3) Appearing in an intoxicated condition; or
(4) Engaging in any act in a violent and tumultuous man­

ner by three or more persons; or
(5) Holding of an unlawful assembly; or
(6) Interruption of any lawful assembly of people; or
(7) Commission of any other act in such a manner as to 

unreasonably disturb or alarm the public.
Whoever commits the crime of disturbing the peace shall 

be fined not more than one hundred dollars, or imprisoned for 
not more than ninety days, or both.”

Subsequently, the statutory definition of disturbing the peace was 
expanded to deal more specifically with, inter alia, conduct like that 
involved in the “sit-ins.” See La. Rev. Stat. §§14:103, 14:103.1 
(Supp. 1960).



4

Tile police captain testified that he arrested petitioners 
because he believed they were disturbing the peace “ by their 
mere presence” at the lunch counter (E. 35-36). Thus, he 
testified (E. 35):

“ A. Well, the only thing that I can say is, the law 
says that this place was reserved for white people 
and only white people can sit there and that was the 
reason they were arrested.”

The trial court’s oral finding of guilt was based on the 
fact that petitioners (E. 37)

“ were seated at the lunch counter in a bay where food 
was served and they were not served while there, and 
officers were called and after the officers arrived they 
informed these two accused that they would have to 
leave, and they refused to leave.”

Petitioners were each sentenced to 30 days in the parish 
jail and to pay a fine of $100 or serve an additional 90 days 
in jail (E. 41).

The petitioners in Briscoe, No. 27, five men and two wo­
men, also Negro* college students in Baton Eouge (E. 8), 
entered the Greyhound Bus Station in Baton Eouge on 
March 29, 1960, took seats at the lunch counter, and started 
ordering (E. 30). A waitress told them they would have 
to go “ to the other side” to be served (E. 30-31). The po­
lice were called, either by a bus driver or a woman em­
ployee (E. 33, 34, 38). The police asked petitioners to get 
up and leave (E. 35). They remained seated without speak­
ing, but when placed under arrest went along peacefully 
with the officers (E. 35-36).

The Bus Station has another eating place for colored 
people (E. 32-34). The waitress testified that over the 
counter at which she refused to serve petitioners was a sign 
reading “ Eefuse service to anyone,” and that her under­



5

standing of instructions from her superior was to refuse to 
serve Negroes (R. 32-33). Petitioners did nothing other 
than give their orders and continue to sit at the counter 
(R. 32-33, 35, 37), and the only reason the waitress refused 
to serve them was that they were Negroes (R. 31-32). 
There were no* other people waiting to be served while 
petitioners were sitting at the counter (R. 34).

The police captain stated that petitioners were arrested 
for disturbing the peace by the “ fact that their presence 
was there in the section reserved for white people” (R. 36). 
Thus, he testified (R. 38):

“ Q. You requested them to move then because they 
were colored, is that right, sitting in those seats?

“ A. We requested them to move because they were 
disturbing the peace.

“ Q. In what way were they disturbing the peace?
“ A. By the mere presence of their being there.”

The trial court’s finding of guilt was similar to that in 
the Garner case, which was tried on the same day (R. 38- 
39). All the petitioners here received the same sentence 
as those in Garner—30 days in jail and a fine of $100 or an 
additional 90 days (R. 43-44).

Petitioners in Eoston, No. 28, are other Negro college 
students in Baton Rouge (R. 7), five men and two women. 
They entered the S. H. Kress and Company store in Baton 
Rouge about two o’clock on March 28, I960 and sat down 
at seats at various places along the lunch counter 
(R. 29, 30). The manager told a waitress to advise them 
that they would be served at another counter, across the 
store, reserved for colored people (R. 29). Petitioners 
continued to sit, and the manager called the police (R. 30). 
The police officers asked petitioners to leave; one of them 
said she wanted a glass of iced tea, but the Chief of Police



6

told her “ they were disturbing the peace and violating the 
law by sitting there’’ (R. 36). When petitioners did not 
move to get up, they were placed under arrest (R. 36).

The manager testified that “ it isn’t customary for the 
two races to sit together and eat together” at the lunch 
counter in the Kress store (R. 30, 34), but that it is custom­
ary for white and colored persons to shop together else­
where in the store (R. 31-32). There were Negroes in the 
store at the time of this incident (R. 37). The manager 
stated that petitioners were not served at the lunch counter 
because it was “ not customary” to serve Negroes there, 
and that petitioners did not do anything other than sit at the 
counter which he would consider disturbing the peace 
(R, 33).

The police captain also testified that petitioners did 
nothing other than sit at these counter seats that he con­
sidered disturbing the peace (R. 37). He arrested petition­
ers on instructions of the Chief of Police, who had accom­
panied him to the store (R. 36).

The finding of guilt by the trial court was similar to 
that in the two preceding cases, with which this one was 
tried (R. 38-39). The court noted that petitioners “ remain­
ed seated at the counter which by custom had been reserved 
for white people” until arrested (R. 391)- The jail sen­
tences and fines of these petitioners were the same as in the 
other two cases (R. 43-44).

Convictions in the three cases were sustained by the 
Supreme Court of Lousiana in memorandum orders refus­
ing writs with a statement that the rulings of law by the 
trial court “ are not erroneous” (Garner R. 53, Briscoe R. 
56, Boston R. 55-56).



7

Summary of Argument

Equal opportunity to purchase food in a place open to 
the public is protected by the Fourteeenth Amendment 
against infringement by State action based on race or 
color. State courts may not, by civil or criminal sanctions, 
enforce discriminations originating- in private conduct. 
Here the arrests and convictions brought “ the full co­
ercive power of government” (Shelley v. Kraemer, 334 
U. S. 1, 19 (1948)) to bear in support of discriminatory 
refusals to serve petitioners at public lunch counters, for 
it is clear in the records of these cases that petitioners were 
arrested solely because they were Negroes peacefully at­
tempting to be served.

The extent to which privately-owned property is af­
fected by rights in others depends upon the extent to which 
the owner has opened the property for use by the public. 
Thus, State sanctions against the exercise of constitutional 
rights on privately-owned property open to the public and 
State-enforced segregation in privately-owned local trans­
portation facilities have been held unconstitutional. In the 
present cases, statutes of general applicability have been 
applied to provide effective State participation in the en­
forcement of racial discriminations by store proprietors.

The Fourteenth Amendment requires that peaceful ac­
tivities by Negroes seeking equal treatment in normal 
economic transactions in the circumstances presented here 
be immune from coercive sanctions interposed by the police 
or courts of a State. These cases involve nothing more. 
Reversal of the convictions will leave the private parties 
to the dispute over segregation at the lunch counters to 
work out a resolution of their differences by lawful means 
of persuasion and pressure, while affirmance would result 
in continued reliance upon police and court action to per­
petuate discrimination in places open to the public.



8

ARGUMENT

It is a denial of the equal protection of the laws 
for a State to arrest and convict for disturbing the 
peace Negroes who peaceably seek service by remain­
ing seated at a lunch counter located in a commer­
cial establishment open to the public.

Petitioners in each of these cases, Negro college stu­
dents in Baton Rouge, Louisiana, were arrested when, 
seeking to be served food at public lunch counters located 
in stores and a bus terminal in that city, they remained 
seated at the lunch counters after being refused service 
on the sole ground that they were Negroes. Although no 
disturbance in fact occurred, petitioners were convicted 
and sentenced to jail for “ disturbing the peace,” defined 
by La. Rev. Stat. §14:103(7) (1950) as any act committed 
“ in such a manner as to unreasonably disturb or alarm 
the public” (full text supra p. 3, note 1). For the reasons 
stated in the annexed Motion for Leave to File Brief, the 
Committee on the Bill of Rights of The Association of the 
Bar of the City of New York submits this brief as amicus 
curiae in support of the position that arrest and convic­
tion of petitioners in these circumstances constituted 
State action enforcing discrimination based on race or 
color in the opportunity to purchase food at a place open 
to the public, and as such deprived petitioners of the 
equal protection of the laws in contravention of the Four­
teenth Amendment.2

2. Believing that the issue of State enforcement of racial dis­
crimination in the circumstances presented in these cases is of na­
tionwide public importance (see annexed Motion for Leave to File 
Brief), and that it is, moreover, in the context of the records of 
these cases the narrowest issue squarely presented, amicus curiae 
has limited this brief to discussion of that issue. This limitation is



9

I

It lias been established that equal opportunity to pur­
chase food in a place open to the public is a substantial 
personal and property right protected by the Fourteenth 
Amendment against infringement by State action based 
on race or color. Burton v. Wilmington Parking Author­
ity, 365 U. S. 715 (1961). Not only the opinion of the 
Court but each of the individual opinions in Burton is 
premised on this principle. See 365 U. S. at 721-22, 726- 
27, 727, 729. Indeed, the proposition “ cannot be doubted,” 
as the Court earlier said in relation to equal opportunity 
to purchase and occupy residential property. Thus, in 
Shelley v. Kraemer, 334 U. S. 1, 10-11 (1948), the Court 
said:

“ It cannot be doubted that among the civil rights 
intended to be protected from discriminatory state 
action by the Fourteenth Amendment are the rights 
to acquire, enjoy, own and dispose of property. Equal­
ity in the enjoyment of property rights was regarded 
by the framers of that Amendment as an essential 
pre-condition to the realization of other basic civil

not intended to express any opinion as to other questions or argu­
ments presented by the parties in their respective briefs.

There have been numerous convictions since February 1960 in 
various State courts on facts generally similar to those of the present 
cases. See, e.g., Petition for Certiorari, Garner, p. 28; Pollitt, “Dime 
Store Demonstrations: Events and Legal Problems of First Sixty 
Days,” 1960 Duke L. J. 315. A number of petitions for certiorari 
have already been filed or may be expected to be filed this Term. 
Disposition of the present cases in favor of petitioners on the issue 
dealt with in this brief will govern at least Avent v. North Carolina, 
No. 85, and Fox v. North Carolina, No. 86, pending on petitions for 
writs of certiorari. Examination of the records in those cases re­
veals no significant distinction from the cases presently before the 
Court. In the North Carolina cases the arrests and convictions 
were under a criminal trespass provision, N. C. Gen. Stats. §14-134 
(1953), rather than for disturbing the peace, but the position taken 
in this brief would apply to use of any criminal law sanction in 
similar circumstances.



10

rights and liberties which the Amendment was in­
tended to guarantee.”8

For as long as “ State action” has been the touchstone 
of applicability of the Fourteenth Amendment, it has been 
accepted that discriminations originating with private con­
duct in which the State participates, or which are author­
ized or enforced by acts of the State, become subject 
thereby to the prohibition of the Amendment. See Civil 
Rights Cases, 109 IT. S. 3, 11, 17, 24 (1883); Shelley v. 
Kraemer, supra; Barrows v. Jackson, 346 IT. S. 249 (1953); 
Burton v. Wilmington Parking Authority, supra; cf. Marsh 
v. Alabama, 326 IT. S. 501, 509 (1946); NAACP v. Alabama, 
357 IT. S. 449, 463 (1958).

Eecognizing that courts have frequently been the organs 
of the State called upon to enforce discriminations originat­
ing in private conduct, this Court has held that State courts 
may not do so, either by civil or criminal sanctions. Thus, 
in Shelley v. Kraemer, supra, judicial enforcement by 3

3. The intention of the framers of the Fourteenth Amendment 
that Negroes have equal opportunities to exercise basic economic 
rights, free of discriminatory restrictions or prohibitions imposed or 
enforced by State action, was spelled out in Section 1 of the Civil 
Rights Act of 1866, 14 Stat. 27, the drafting and enactment of which 
occurred contemporaneously with the drafting and approval of the 
Fourteenth Amendment by the 39th Congress. The statute, whose 
text and history were set out in Shelley in support of the passage 
quoted supra, provides (as now codified in 42 U. S. C. §1982) :

“All citizens of the United States shall have the same right, 
in every State and Territory, as is enjoyed by white citizens 
thereof to inherit, purchase, lease, sell, hold, and convey real 
and personal property.”

The Court has held that the Amendment and this statute protect the 
same rights. Hurd v. Hodge, 334 U. S. 24, 30-33 (1948) ; Shelley 
v. Kraemer, supra; Buchanan v. Worley, 245 U. S. 60, 75-79 (1917). 
Moreover, it is apparent that the word “right” was used in the 
statute in a broad sense to proscribe all State action denying equality 
of legal privileges on account of race. Cf. Takahashi v. Fish and 
Game Comm’n, 334 U. S. 410, 419-20 (1948).



11

injunction of a restrictive covenant against occupancy of 
residential property by non-whites was held to violate the 
Fourteenth Amendment. Thereafter, Barrows v. Jackson, 
346 U. S. 249 (1953), held that such a covenant could not 
be given indirect judicial enforcement by an action for 
damages against a white owner who sold property in breach 
of the restrictive covenant. In Gayle v. Browder, 352 IT. S. 
903 (1956), the Court nullified State and local criminal 
sanctions for the enforcement of segregation on privately- 
owned local buses.4 A similar principle was applied earlier 
in Marsh v. Alabama, 326 IT. S. 501 (1946), which invali­
dated application of a general criminal trespass law to 
persons exercising a constitutional right (there, distribu­
tion of religious literature) on the property of a privately- 
owned “ company town” in opposition to the edict of the 
landowner.

The doctrine of these cases is most familiarly identified 
with Shelley v. Kraemer. The Court there stated that the 
protection of the Fourteenth Amendment is invoked when 
private discriminatory acts are carried out by “ the active 
intervention of the state courts, supported by the full 
panoply of state power,” and when the State has “ made 
available to [private] individuals the full coercive power 
of government” to enforce such discrimination (334 U. S. 
at 19). In the present cases, the arrests of petitioners by 
local police officers, as well as their subsequent convictions 
for “ disturbing the peace”—-all avowedly based solely on

4. The per curiam opinion of this Court, affirming Browder v. 
Gayle, 142 F. Supp. 707 (M. D. Ala. 1956), merely cited Brown v. 
Board of Education, 347 U. S. 483 (1954) ; Baltimore v. Dawson, 
350 U. S. 877 (1955); and Holmes v. Atlanta, 350 U. S. 879 (1955), 
each of which had dealt with racial discrimination in facilities owned 
and operated by governmental entities. The local buses in Gayle 
were owned and operated by a business corporation. Thus the 
Gayle decision is direct authority that a State may not utilize its 
criminal-law sanctions to enforce discrimination in privately-owned 
facilities used by the public, as it could not with respect to govern­
mental facilities used by the public. See also infra pp. 15-16.



12

their peaceful attempts to he served at public lunch counters 
(Garner E. 35-36, Briscoe E. 35-38, Boston E. 37; see supra 
pp. 4, 5, 6)—-brought to bear in support of the discrimi­
natory refusals to serve them “ the full coercive power of 
government. ’ ’

The participation of the State is emphasized in these 
cases by the fact that, although in two of them the police 
were called by the manager or an employee, it appears that 
in each case the arrests were made on the initiative of the 
police, without direct request by the person in charge of 
the lunch counter (Garner E. 31, 34-37, Briscoe E. 33, 34-38, 
Boston E. 30, 36). In any event, the individual in charge 
had no right to seek the support of the police to enforce 
racial discrimination in these public places. As the Court 
said in Shelley v. Kraemer, supra, 334 U. S. at 22:

‘‘ The Constitution confers upon no individual the right 
to demand action by the State which results in the 
denial of equal protection of the laws to other indi­
viduals.”

Petitioners peaceably sought service by remaining seat­
ed at these lunch counters, located in stores open to the 
public and where white persons would be served who sat 
down in the same fashion (Garner E. 32, Briscoe E. 31-32, 
Boston E. 30). Their arrests and convictions under these 
circumstances provided support for the private owners’ 
segregation rules through State action of the most direct 
sort, combining the coercive force of the police with the 
ultimate sanction of the judicial arm of the State.5

5. It is, of course, immaterial to the issue of Fourteenth Amend­
ment violation whether the police or the courts act under a statute 
expressing the aim of enforcing discrimination in privately-owned fa­
cilities (Buchanan v. Warley, 245 U. S. 60 (1917) ; Gayle v. Brow­
der, 352 U. S. 903 (1956)), or act to enforce such discrimination 
under a statute of general applicability (Boman v. Birmingham 
Transit Co., 280 F. 2d 531 (5th Cir. 1960); cf. Marsh v. Alabama,



13

i l

Application of the principles outlined above to these 
cases is not precluded by the fact that the discriminatory 
conduct being enforced by the State is that of the proprie­
tors of privately-owned commercial establishments. The 
Court has recognized that the extent to which a property 
owner is affected by rights in others depends upon the ex­
tent to which he himself, “ for his advantage, opens up 
his property for use by the public in general.” Marsh v. 
Alabama, 326 U. S. 501, 506 (1946). There the Court 
stated:

“ Ownership does not always mean absolute dominion. 
The more an owner, for his advantage, opens up his 
property for use by the public in general, the more 
do his rights become circumscribed by the statutory 
and constitutional rights of those who use it.”6

Marsh decided that sidewalks in the business block of 
a “ company town” were as open for free-speech purposes 
as those of municipalities. Subsequently, lower courts have 
made analogous rulings rejecting trespass charges in 
criminal and civil cases involving picketing on the side­
walks of privately-owned shopping centers. E.g., State v.

326 U. S. 501 (1946)), or, indeed, act to enforce such discrimination 
without relying on statutory authority {Shelley v. Kraemer, 334 
U. S. 1, 14-18 (1948); Baldzvin v. Morgan, 287 F. 2d 750, 756-60 
(5th Cir. 1961)). For “State action of every kind * * * which 
denies * * * the equal protection of the laws” is proscribed by the 
Amendment. Civil Rights Cases, 109 U. S. 3, 11 (1883) (Emphasis 
added).

6. The Court reiterated this theme in Shelley v. Kraemer, 334 
U. S. 1, 22 (1948) :

“And it would appear beyond question that the power of the 
State to create and enforce property interests must be exercised 
within the boundaries defined by the Fourteenth Amendment. 
Cf. Marsh v. Alabama, 326 U. S. 501 (1946).”



14

Williams, 44 Lab. Eel. Eef. Man. 2357, 2360-62 (Baltimore 
Grim. Ct. 1959); Freeman v. Retail Clerks Union, 45 Lab. 
Eel. Eef. Man. 2334, 2342 (Wash. Super. Ct. 1959). In one 
such case, a court in Baleigh, North Carolina, relying on 
Marsh, dismissed trespass charges against Negroes who 
were protesting segregated lunch counters in the stores of 
a shopping center by demonstrating on its privately-owned 
sidewalks. See New York Times, April 23, 1960, p. 21, col. 
1; Pollitt, supra note 2, at 350 n.206. Similarly, picketing 
within New York’s Pennsylvania Station, directed against 
a news stand located in a public concourse there, has been 
held, partly on the authority of Marsh, to be immune from 
prosecution as disorderly conduct (under a definition simi­
lar to that of disturbing the peace in the statute involved 
here). People v. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 277 
(Magis. Ct. 1948).

Each of the cases described dealt with a privately- 
owned sidewalk or concourse maintained by the owner for 
access by the public to places of business. Here it is such 
places of business, open to traffic and trade by the public, 
that are in question. The stores and bus terminal involved 
here, like the locations dealt with in Marsh and the cases 
following it, have been opened up by the proprietors for 
use by the public (Garner E. 32, Briscoe E. 32-34, Hoston 
B, 31-32, 37; see supra pp. 3, 4, 6). State enforcement 
of racial discrimination therein by criminal sanctions is 
therefore offensive to the prohibition of the Fourteenth 
Amendment.7

7. No special challenge to the traditional right or power of a 
merchant to select his customers individually is presented by these 
cases. Enforcement of that principle has never been absolute. Like 
any economic power or property right, it is bounded by limitations 
drawn from superior legal sources, including the Constitution. See 
Shelley v. Kraemer, 334 U. S. 1, 22 (1948), supra note 6; cf., e.g., 
United States v. Parke, Davis & Co., 362 U. S. 29 (1960) ; Cali­
fornia Inter-Insurance Bureau v. Maloney, 341 U. S. 105 (1951).



15

In similar factual circumstances involving segregation 
on privately-owned local buses, governmental enforcement 
of segregated-seating rules originating with the private 
owner has been held to violate the Fourteenth Amendment. 
Gayle v. Browder, 352 U. S. 903 (1956), see supra note 4; 
Flemming v. South Car. Elec. £  Gas Co., 239 F. 2d 277 
(4th Cir. 1956); Boman v. Birmingham Transit Co., 280 F. 
2d 531 (5th Cir. 1960).

In a decision affirmed by this Court, a three-judge Dis­
trict Court said, citing Shelley v. Kraemer, that enforce­
ment of the bus company’s rules by the police and courts 
raises the difference, “ a constitutional difference, between 
voluntary adherence to custom and the perpetuation and 
enforcement of that custom by law.” Browder v. Gayle, 
142 F. Supp. 707, 715 (M. D. Ala. 1956), affirmed, Gayle v. 
Browder, supra. A ruling to the same effect was made 
by the Fifth Circuit in the Boman case, supra, which quoted 
the District Judge’s comment that “ the police officers were 
without legal right to direct where they [Negroes who re­
fused to move to the rear of a bus, or to leave it when the 
driver took it to the barn upon their refusal] should sit 
because of their color. The seating arrangement was a 
matter between the Negroes and the Transit Company.”8

8._ 280 F. 2d at 533 n.l. The entire discussion of this point by 
District Judge Grooms is illuminating in relation to the facts of the 
present cases. As quoted by the Court of Appeals, ibid., it reads:

“A  charge of ‘a breach of the peace’ is one of broad import 
and may cover many kinds of misconduct. However, the Court 
is of the opinion that the mere refusal to obey a request to move 
from the front to the rear of a bus, unaccompanied by other 
acts constituting a breach of the peace, is not a breach of the 
peace. In as far as the defendants, other than the Transit Com­
pany, are concerned, plaintiffs were in the exercise of rights 
secured to them by law.

“Under the undisputed evidence, plaintiffs acted in a peace­
ful manner at all times and were in peaceful possession of the 
seats which they had taken on boarding the bus. Such being



16

Each of the has cases just discussed held that police 
and court enforcement of the private owner’s rule of seg­
regated seating in local buses is unconstitutional, without 
reference to the affirmative statutory requirement of non­
discrimination that exists with respect to facilities of in­
terstate travel. Of., e.g., Boynton v. Virginia, 364 U. S. 454 
(1960). Similarly, the Fifth Circuit has recently held to 
be unconstitutional discriminatory police action regard­
ing use of the “ white” waiting room in a railroad station 
by Negroes other than interstate travelers. In Baldwin 
v. Morgan, 287 F. 2d 750 (5th Cir. 1961), injunctive relief 
was granted against a local police practice of checking 
Negroes found in the “ white” waiting room to see if 
they held interstate tickets. The Court of Appeals ruled 
that, since Gayle v. Browder, supra, “ it is too late now 
to question the absolute right of Negroes engaged in in­
trastate commerce to be free from discrimination by po­
lice officers on the basis of race” (287 F. 2d at 758-59) 
(Emphasis added).* 9

the case, the police officers were without legal right to direct 
where they should sit because of their color. The seating ar­
rangement was a matter between the Negroes and the Transit 
Company. It is evident that the arrests at the barn were based 
on the refusal of the plaintiffs to comply with the request to 
move since those who did move, though equally involved except 
as to compliance, were not arrested.

“Under the facts in this case, the officers violated the civil 
rights of the plaintiffs in arresting and imprisoning them. Ordi­
nance 1487-F, and their ‘willful’ refusal to move when directed 
to do so, did not authorize or justify their conduct.”

The full opinion of the District Judge is reported sub nom. Boman 
v. Morgan, 4 Race Rel. L. Rep. 1027 (N. D. Ala. 1959).

9. This part of the Fifth Circuit’s decision was based upon evi­
dence that such discriminatory police action had in fact occurred, 
independent of a State Public Service Commission rule requiring 
segregated waiting rooms, which was invalidated elsewhere in the 
opinon (compare 287 F. 2d at 756-60 with id. at 753-56).



17

It is clear in the records of all of the present cases 
that petitioners were arrested solely because they were 
Negroes seeking to he served at these public lunch counters. 
(Garner R. 35-36, Briscoe R. 35-38, Boston R. 37; see 
supra pp. 4, 5, 6). The trial court’s oral findings of 
guilt were explicitly placed on that basis (Garner R. 37, 
Briscoe R. 38-39, Boston R. 39), and were sustained by 
the Supreme Court of Louisiana in memorandum orders 
(see supra p. 6). Thus, the highest court of the State 
has, in effect, construed a criminal statute of general ap­
plicability “ as authorizing discriminatory classification 
based exclusively on color” by the proprietors of these 
stores. Burton v. Wilmington Parking Authority, 365 
U. S. 715, 727 (1961) (opinion of Stewart, J . ) ; id. at 729 
(opinion of Harlan, J., joined by Whittaker, J . ) ; cf. id. at 
727 (opinion of Frankfurter, J.).

The proprietors’ discriminatory rules were given 
forceful effect by the totality of police and judicial actions 
in these cases. Though the element of governmental prop­
erty which the majority of the Court found controlling in 
Burton is not involved here, the significant effect of the 
State enforcement actions in these cases “ indicates that 
degree of state participation and involvement in discrim­
inatory action which it wus the design of the Fourteenth 
Amendment to condemn.” Id. at 724 (opinion of the 
Court).

I l l

The traditional considerations for limiting constitu­
tional adjudication to the facts of actual cases before the 
Court are compelling in the sensitive area of race rela­
tions, and particularly so where the claim to freedom 
from State-enforced racial discrimination is opposed by a 
claim to freedom in the management of private property. 
The judicial precedents discussed in this brief indicate that



18

the resolution of such conflicting claims may vary with the 
circumstances. Thus the decision of the Court in the pres­
ent cases need not he taken as having decided issues not 
presented in those cases on their own facts. It seems ap­
propriate, therefore, to note in summary form some mat­
ters not involved in the facts of the present cases:

(1) The issue of affirmative remedies against dis­
criminatory acts does not arise in these criminal 
cases. The question here is simply whether peaceful 
activities by Negroes seeking equal treatment in 
normal economic transactions are immune from crim­
inal sanctions interposed against them by the police 
or courts of a State or local government.

(2) Decision here need not establish the extent to 
which privately-owned property may be used for pur­
poses not intended by the owner, for in the cases now 
before the Court petitioners merely attempted to use 
the lunch counter facilities of these stores in the man­
ner in which they were intended to be used—by sit­
ting down at the counter and ordering food or bev­
erages.10

(3) Nor do these cases present for decision any 
issue as to discriminatory exclusion from places af­
fected with a countervailing right of privacy on the 
part of the property owner, such as a private home. 
Cf. Breard v. Alexandria, 341 U. S. 622, 641-45 (1951).

10. That petitioners’ motives may have included a desire to 
protest or demonstrate against the discriminatory practices in ques­
tion is immaterial, for their convictions had to be, and were, based 
on their overt actions, and the form petitioners’ protest or demon­
stration took was merely seeking service in the normal manner.

The convictions cannot be sustained upon petitioners’ refusals to 
leave the premises upon orders of the police. Such refusals cannot 
be deemed criminal in circumstances in which the police had no 
right, under the Constitution, to demand that petitioners leave the 
premises. Cf., e.g., Boynton v, Virginia, 364 U. ,S. 454 (1960) ; 
id. at 464-65 (dissenting opinion) ; Boman v. Birmingham Transit 
Co., 280 F. 2d 531 (5th Cir. 1960), supra p. 15 and note 8.



19

Only commercial facilities open to traffic and trade by 
the public are involved in the present cases.

(4) The use of force by a store proprietor as an 
alternative to police action in seeking to remove Ne­
groes seeking service is not involved. There is nothing 
in the records of these cases to indicate that forceful 
removal was even contemplated.11

(5) Nor is there any showing here that petitioners’ 
conduct did, or in the absence of action by the poliee 
would, provoke violence or disorder by persons other 
than the proprietor.12 In any event, that others may 
respond with disorder to peaceable activities in pur­
suit of equal treatment should not permit State or 
local authorities to stave off possible disorder by sanc­
tions against the persons peacefully seeking such treat­
ment. Cf. Cooper v. Aaron, 358 U. S. 1, 16 (1958).

All that these cases involve is the question whether 
Negroes shall be free of “ the full coercive power of gov­

11. Therefore, it is not necessary here to consider whether con­
stitutional complusions may affect causes of action and defenses in 
cases involving such forceful removal. As to that, see Schwelb, 
“The Sit-In Demonstration: Criminal Trespass or Constitutional 
Right?” 36 N. Y. U. L. Rev. 779, 800-08 (1961).

12. The incidents of violence against the “Freedom Riders” 
earlier this year cannot reasonably be deemed a pragmatic argument 
against recognition here of the right to be free of State-enforced 
segregation in the new context of lunch counters. Those isolated 
incidents of violence did not occur in response to any ruling marking 
a new advance against discrimination, but on the occasion of a highly- 
publicized exercise of a right long established. See, e.g., Morgan v 
Virginia, 328 U. S. 373 (1946).

There is evidence that in many Southern communities peaceful 
resolution of the struggle sparked by the “sit-ins,” with elimination 
or reduction of discrimination at the lunch counters, has occurred. 
See, e.g., New York Times, June 6, 1960, p. 1, col. 2; June 24, 1960, 
p. 1, col. 6; July 25, 1960, p. 1, col. 8; August 11, 1960, p. 14, col. 
5; October 18, 1960, p. 47, col. 5; January 22, 1961, p. 72, col. 8; 
May 7, 1961, §4, p. 10, col. 1.



20

ernment” (Shelley v. Kraemer, 334 U. S. 1, 19 (1948)) 
against their efforts to seek equality of service in the pur­
chase of food in commercial establishments. The effect of 
a decision reversing these convictions will be to leave the 
private parties to the dispute over segregation at these 
lunch counters—the merchants and Negro residents of the 
community—to work out a resolution by lawful means of 
persuasion and pressure. This is the necessary result of 
the Fourteenth Amendment’s bar to State enforcement of 
discrimination, as in other instances where the Court has 
ruled that judicial sanctions may not be interposed in 
economic or social struggles between contending forces of 
private interests. Cf. Thornhill v. Alabama, 310 U. S. 88 
(1940); San Diego Bldg. Trades Council v. Garmon, 359 
TJ. S. 236 (1959).'

On the other hand, affirmance of the decision below 
would offer little inducement to the merchants to work 
toward a peaceful resolution of the dispute raised by the 
claim of Negro residents of the community for equal treat­
ment. Instead, police and court action would continue to 
be relied upon to perpetuate discriminatory practices in 
places open to the public. Such action the Fourteenth 
Amendment forbids the States to take.

CONCLUSION

For the foregoing reasons, the judgments below  
should be reversed.

Respectfully submitted,

W illiam A. Delano 
J ohn R. F ernbach 
Murray A. Gordon 
Martin F . R iohman

Attorneys for Amicus Curiae



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