Garner v. Louisiana Brief on Behalf of Respondent

    Jilt tlu>
gutprem? ( to r t  o f  Hip  Im tp fc  States

Octobee Term, 1961

No. 26
J ohn Burrell Garner, et al., Petitioners 

v.
State of Louisiana, Respondent

No. 27
Mary Briscoe, et al., Petitioners 

v.
State of Louisiana, Respondent

No. 28
J annette Hoston, et al., Petitioners 

v.
State of Louisiana, Respondent

ON WRITS OF CERTIORARI TO 
THE SUPREME COURT OF LOUISIANA

Brief on B ehalf of R espondent 
State of Louisiana

SARGENT PITCHER, JR.
District Attorney 
19th Judicial District 
Baton Rouge, Louisiana 

JOHN F. WARD, JR.
Assistant District Attorney 
19th Judicial District 
Baton Rouge, Louisiana 

JACK P. F. GREMILLION 
Attorney General 
State of Louisiana 
Baton Rouge, Louisiana 

N. CLEBURN DALTON
Assistant Attorney General 
State of Louisiana 
Baton Rouge, Louisiana

Attorneys for Respondent



1

STATEMENT OF THE CASE...........................  1
ARGUMENT............................................................  8

IN D E X  P a g e

I. There was and is evidence of conduct which 
would foreseeably and unreasonably dis­
turb or alarm the public and this Honor­
able Court should not substitute its judg­
ment for that of the jury, or Trial Court, 
as to whether such evidence was sufficient 
to return a verdict of guilty rather than 
not guilty ................................................ .....  8

II. The statute under which petitioners were 
convicted is almost identical to state stat­
utes and municipal ordinances which have 
been sustained throughout the nation and 
as applied to these facts and circumstances 
is not so vague, indefinite and uncertain as 
to offend the due process clause of the 
Fourteenth Amendment............................... 40

III. These arrests and convictions do not con­
stitute “state action” so as to bring them 
with the prohibition of the Fourteenth 
Amendment against racially discriminatory 
administration of state laws..........................47

IV. The decision below does not deprive de­
fendants herein of the freedom of speech 
or of expression contemplated and pro­
tected by the First and Fourteenth Amend­
ment to the Constitution of the United
States ............................................................  53

V. The facts and circumstances of the Briscoe 
case do not bring it within the prohibition
of the Interstate Commerce Act.......... 55

CONCLUSION ........................................................  63



11

TABLE OF CASES

Armstrong v. City of Tallahassee,
__ .______U.S._............__ ..............................  41

Boynton v. Virginia, 364 U.S. 454......... ...............  57
Burton v.l Wilmington Parking Authority, 365

U.S. 715 .,.......................................................... 50
Civil Rights Cases, 109 U.S. 3..............................  48
Davis v. Burgess, 20 nw 540, 52 Am. St. Rep.

828 ...........................................................    42
Drews et al v. State of Maryland, 167 Atlantic

2nd 341 .....................................................    47
Kovacs v. Cooper, 336, U.S. 77, 93 L.Ed. 513,

10 ALR 2nd 608..............................................  54
Marsh v. Alabama, 326 U.S. 501.................... 51, 61
Nash v. United States, 229 U.S. 373, 33 Sup. Ct.

780, 57 L.Ed. 1232..........................................  46
Ohio Bell Telephone Co. v. Public Utility Com­

mission, 301 U.S. 292......................................  37
People v. Arko, 199 N.Y.S. 402..............................  47
People v. Calpern, 181 ne 572................................  47
People v. Piener, 300 N.Y. 391, 91 ne 2nd 316,

340 U.S. 315.............................................  43, 54
People v. Nixon, 161 NE 463.... ............... ..............  46
Plessy v. Ferguson, 163 U.S. 537..........................  50
Schenck v. United States, 249 U.S. 47, 63 L.Ed.

470, 39 Sup. Ct. 247......................................  54
Shelly v. Kraemer, 334 U.S. 1..........................  48, 58
Slack v. Atlantic White Tower System, 181 Fed. 

Supp. 124 ........................................................ 49

P a g e



Ill

P a g e

State v. Bessa et al, 115 La. 259, 38 So. 985.......  38
State v. Cooper, 285 NW 903, 122 ALR 727.........  42
Steel et al v. City of Tallahassee,

_________U.S.................................................... 41
Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350-.. 50 
Williams, v. Howard Johnson Restaurant, 268

Fed. 2nd 845....................................................  49
United States v. Shaugnessy, 234 Fed. 2nd 715.....  37
Tick Wo v. Hopkins, 118 U.S. 356....................... 50

STATUTES

Constitution of the United States, Article 4, Sec­
tion 2 .............................  53

LRS 14:103 .............................................................. 40
LRS 15:422 ......................    38
49 USCA 316 (d) ..................................................  55

OTHER AUTHORITIES
8 Am. Jur. 834, sec. 4........................................  45
5 Words and Phrases 767......................................  42
Daniel H. Pollitt, Dime Store Demonstration; 

Events and Legal Problems of First Sixty
Days; Duke Law Journal, No. 3, Vol. I960.. 12 

Reporter Magazine, Volume 24, No. 1, January 5, 
1961 issue, Page 20, The Strategy of a Sit-in
by C. Eric Lincoln..........................................  20

Baton Rouge Morning Advocate, Vo. 35, No. 270, 
271, 272, 273 and 274, March 27, 28, 29, 30
and 31, 1960 .......................................... .......  29

Baton Rouge State Times, Vol. 118, No. 75, 76 and 
77, March 28, 29 and 30, 1960....................... 30



Jtt t!|p
(Eourt of t t y  ZHmtpb Blates

October Term, 1961

No. 26
J ohn Burrell Garner, et al., Petitioners 

v.
State of Louisiana, Respondent

No. 27
Mary Briscoe, et al., Petitioners 

v.
State of Louisiana, Respondent 

No. 28
J annette Hoston, et al., Petitioners 

v.
State of Louisiana, Respondent

ON W R ITS O F C ER TIO R A R I TO 
TH E  SU PREM E C O U RT OF LO U ISIA N A

B rief on B ehalf of R espondent 
S tate  of Louisiana

STA TEM EN T OF T H E  CASE

On March 30, 1960, these defendants and/or 
others similarly situated picketed several business 
establishments in Baton Rouge in protesting the 
segregation customs of the owners of those stores. 
Thereafter, on that same day, these defendants 
and/or others similarly situated marched, in a crowd,



2

down the main street of Baton Rouge in a “march on 
the State Capitol” for the sole purpose of engaging 
in a demonstration protesting the segregration cus­
toms of the people of the State of Louisiana. These 
demonstrations, although protected by the police de­
partment of the City of Baton Rouge, were witnessed 
by a great number of citizens of the City of 
Baton Rouge. Tension between the two races was 
high.

In the few weeks, and months, immediately pre­
ceding March 28, and March 29, 1960, members of the 
Negro race in other cities throughout the south had 
engaged in “sit-in demonstrations”. In almost every 
instance of the staging of a militant “sit-in demon­
stration” violence had occurred with resulting fist 
fights between members of the two races. Every 
citizen of Baton Rouge, including these defendants, 
were aware of these “sit-ins” and the violence which 
they had caused.

Every responsible citizen of the City of Baton 
Rouge was concerned over the possibility of violence, 
blood shed, and mob violence facing our normally law 
abiding and peaceful community.

On the evening of March 29, 1960, when it was 
first learned that the “march on the capitol” demon­
stration was to take place the next morning, respon­
sible public officials advised law enforcement officers 
not to interfere with these people if they commenced 
a demonstration on the public streets of the City of 
Baton Rouge either by picketing business establish­



3

ments or by marching on the capitol and whether 
carrying signs or not, as long as they did not block 
traffic or prevent the normal use of the streets by 
other persons also entitled to their use. They were 
further instructed to not let any other person inter­
fere with these demonstrators. Consequently, on 
March 30, 1980, the demonstrators picketed and dem­
onstrated the entire length of the main business 
street of the City of Baton Rouge, ending their demon­
stration in a mass meeting on the steps of the State 
Capitol, with their right to lawfully demonstrate in this 
manner at all times protected by local law enforcement 
officials.

But, was this lawful manner of demonstrating 
and expressing themselves sufficient?

No, the right to freely express themselves in a 
place where they had a right to do so was not suf­
ficient for these defendants. On March 28 and 29, 
1960, these defendants had entered the respective pri­
vate business establishments herein involved to force 
their demonstrations on private individuals on their 
own private property. (R. Hoston 7; R. Garner 6; R. 
Briscoe 8)

In each of these cases, the defendants were told 
in clear unmistakeable language, which could have no 
other meaning under the circumstances, to cease and 
desist from this unlawful activity, that is, engaging 
in an “activity . . .  to protest segregation” and, 
“in protest of the segregation laws of the State of 
Louisiana, . . . ‘sit-in’ a cafe counter seat . . . ” (R.



4

Hoston 7; R. Garner 6; R. Briscoe 8) These defend­
ants were all told, in language unmistakably clear 
under the circumstances, that they would not be 
served food or drink at the counter at which they' 
were seated but that they would be served at another 
counter designated by the owner. In other words, they 
were told in clear unmistakeable language that if 
they were in the store for normal business purposes 
they could carry out those purposes by going to the 
counter pointed out to them by the manager or wait­
ress involved in each particular instance, but that they 
would not be served while engaging in such demon­
stration in the particular area of the store at which 
they were. They refused to leave the area at which 
they would not be served and refused to go to the 
area pointed out to them by the manager or employee 
who had full legal authority to require them to go to 
that particular area of the store.

If we examine pages 29 and 30 of the record in 
the Hoston case, we find the manager of the store 
testifying that “something unusual happened on March 
28” ; that he told his waitress to “offer service at the 
counter across the aisle” ; that they were “seated at 
the counter reserved for white people” ; that they 
were not served there and that they were “advised 
that we would serve them over there” (other counter); 
that they did not go over there but “continued to 
sit” ; that he went to the telephone and called the 
police department because “I feared that some dis­
turbance might occur” . . . because it isn’t customary 
for the two races to sit together and eat together



5

. . . at Kress’ . . . that this was the “custom of the 
store” and that that custom was prevailing when he 
got there a year and a half before. And on page 36 of 
the record you have the law enforcement officers 
asking them, not once, but twice, to move on, and 
their refusal to do so, before they were arrested.

In the Garner case, you have the owner of Sit- 
man’s Drug Store, Mr. Willis, testifying that he was 
the sole owner of Sitman’s Drug Store and the sole 
owner of Sitman’s Restaurant and Cafe, two separate 
establishments; that although he served both Negroes 
and Whites in his drug store, he served only Whites 
in the cafe as a matter of personal policy and choice 
to him; that this had always been his policy and 
choice; that these defendants entered the cafe and 
seated themselves at the counter and were told by him 
that they would not be served; but the defendants 
remained seated; the law enforcement officer asked 
them to leave and only after they again refused to 
leave were they arrested. That these defendants knew 
of the policy of this private businessman on his own 
private property is made clear by his answer to the 
question propounded by counsel for defendant on page 
32 of the record:

Q. For what reason did you refuse to serve these 
defendants?

A. As a matter of policy I have never invited 
colored trade, Negro trade in the restaurant, 
as a matter of policy. I don’t have the facil­
ities. I have facilities for only one race, the 
White race, (emphasis supplied)



6

In the Briscoe case, on pages 30 and 31 of the 
record, the waitress, Miss Fletcher, testified that 
these defendants came in and sat down at the counter 
and that she told them they would have to go to the 
other side to be served. She testified further on page 
31 that “they came here and said they wanted some­
thing and I told them that they would have to go to 
the other side to be served, and they just kept sitting 
there and so we called the police and told them to come 
get them.” She also testified that the police said that 
“they said they would give them a chance to get up 
and go or either they would have to go to jail” she 
also testified as follows:

Q, And you told them you couldn’t serve them 
and asked them to move, is that correct?

A. Yes sir.
Q. And when they refused to move you called the

officers?
A. Yes sir.

She also testified when questioned by the Court as 
follows:

Q. As I recall your direct testimony you stated, 
and if I am not correct, correct me, that 
after they ordered the food you told them that 
you couldn’t serve them, that they had to go 
over to the other side reserved for colored 
people, is that right?

A. Yes sir, that’s right.
Q. Did they go over there?
A. No sir.



7

Q. Did they refuse to go?
A. Yes sir, they just sat there . . .
Q. Was there a place reserved for colored people 

in this same building?
A. Yes sir . . .
Q. Was it adequate to serve these people, was it 

large enough to serve these people?
A. Yes sir.

And again when the police officer was called he 
testified as follows, as shown at page 35 of the 
Briscoe record:

Q. Anyway what, if anything, did you do?
A. Well, Inspector Bauer talked to one of the 

group.
Q. Did you hear what was said?
A. No. And then he talked to them the second 

time and then he told them that they were 
under arrest . . .

Q. Did you ask them to move?
A. We did.
Q. You gave them an opportunity to get up and

leave?
A. That’s right.
Q. And did they?
A. No.
Q. Were they all together?
A. That’s right.

And again on page 37 and 38 of the record the 
officer testified as follows:



8

Q. “But what I want to clear up, I think it is 
fairly clear but I want to go over it again, 
you requested these defendants to leave the 
counter or the stools that they were sitting 
on before you arrested them?

A. That’s right sir.
Q. And they refused to leave?

A. That’s right.
Q. And that’s when you made the arrest?

A. That’s right.

These defendants were then ultimately found 
guilty as charged by the Court and ultimately arrived 
before this Court on Writs of Certiorari.

ARGUMENT

I.

There was and is evidence of conduct which would 
foreseeably and unreasonably disturb or alarm the 
public and this Honorable Court should not substitute 
its judgment for that of the jury, or Trial Court, as 
to whether such evidence was sufficient to return a 

verdict of guilty rather than not guilty.

In our Brief in Opposition to the Application for 
Writs of Certiorari which was previously filed, we 
discussed the various legal questions and defenses 
raised by these defendants from the standpoint of 
the applicable case law. In the interest of space and 
time we would here re-adopt by reference each and



9

every argument submitted in our Brief in Opposition. 
In addition, the concluding portion of this brief will 
discuss, from the standpoint of applicable case law, 
the additional points and re-worded arguments sub­
mitted in defendants’ brief and the various amicus 
curiae briefs filed in their behalf by the Committee 
on the Bill of Rights of the Association of the Bar of 
the City of New York and by the United States Gov­
ernment.

At this point, respondent would attempt to put 
these cases in their proper perspective from a fac­
tual point of view. By argument and language, coun­
sel for defendants have attempted to turn this 
case into a great segregation Civil Rights matter 
when in fact it really is not. THE ONLY REAL 
ISSUE IN THESE THREE CASES IS WHETHER 
OR NOT A NORMALLY PEACEFUL AND LAW 
ABIDING COMMUNITY FACING AN EXPLOSIVE 
SITUATION IN WHICH RACIAL TENSIONS ARE 
AT AN ALL TIME HIGH, CAN PRESERVE THE 
PEACE AND ORDER OF THE COMMUNITY BY 
HAVING ITS LAW ENFORCEMENT OFFICERS 
ORDER PERSONS CREATING THE EXPLOSIVE 
SITUATION TO CEASE AND DESIST FROM 
SUCH ACTION AND ARREST THEM IF THEY 
REFUSE TO DO' SO.

To put these cases in their proper perspective 
they must be viewed in the true light of the circum­
stances surrounding them. Throughout the last part



10

of 1959 and the early part of 1960, immediately pre­
ceding these demonstrations, the leaders of the Negro 
movement to do away with all segregation, in the 
nation, whether public or private, abandoned their 
previous legal mode of attack to embark upon a mili­
tant campaign throughout the South to invade private 
property and harass the proprietors of private business 
establishments into de-segregating their facilities 
whether they wanted to or not. These “sit-in demon­
strations” occurred in major cities throughout the 
South. In almost every instance where local law en­
forcement authorities did not act quickly, violence, 
to a greater or lesser degree, occurred. A rather com­
plete history of this militant campaign is given in 
an article in the 1960 Volume of the Duke Law Jour­
nal, No. 3, from which we will trace their history.

“On February 1, 1960, four Negro students at 
North Carolina A & T College in Greensboro, North 
Carolina, decided to do something about this alleged 
unequal treatment. They went to a dime store in an 
alleged attempt to get coffee. The manager said he 
could not serve them because of local custom, so they 
just sat and waited. The only trouble that first day 
came from the Negro help who came out of the kitchen 
to tell the boys, now known on their campus as the 
“Four Freshmen”, that they were doing a bad thing. 
Other students from the college were shopping in the 
store at the time and when the Four Freshmen re­
turned to the campus 20 students volunteered to join 
them for the next afternoon. “Ground rules were 
drawn by the expanded group. . . . Again, Tues­



11

day they were refused service. They just sat. On 
Wednesday and Thursday, they returned, in greater 
strength each time. The A & T students were joined 
by many students from the Negro Bennett College and 
also by a few students from the Women’s College of 
the University of North Carolina, both located in 
Greensboro. By Friday, white teenagers had begun 
heckling the demonstrators. On Saturday the Wool- 
worth store was jammed with Negroes and Whites. 
The Negroes mostly sat, while the white boys waved 
Confederate flags chanted and cursed. Around mid­
afternoon the management received a bomb threat, and 
the police emptied the store. When the store opened 
Monday, the lunch counters were closed. Dr. Gordon 
Blackwell, Chancellor of the Women’s College, pro­
posed a “truce period” which was accepted to work 
things out in a less inflamatory atmosphere. Thus 
ended temporarily the Greensboro demonstrations; 
but by that time, Negro students were demonstrating 
in Winston-Salem, in Durham, in Charlotte and the 
other principal North Carolina cities. The demonstra­
tion in its origin was student inspired and directed. 
Subsequently, organizations such as the National Stu­
dent Association. The Congress of Racial Equality, 
and the National Association for Advancement of 
Colored People offered their guidance and sponsorship. 
In some instances, the help of these organizations was 
accepted; in other instances, the students desired to 
go it alone.” Daniel H. Pollitt, Dime Store Demon­
strations; Events and Legal Problems of First Sixty 
Days; Duke Law Journal No. 3, Volume 1960. This



12

was only the beginning. And yet there was violence 
on the very first attempt of these people to invade the 
private property of others. As the movement increased 
and became more militant, so correspondingly did the 
violence increase.

Continuing with Dr. Pollitt’s rather thorough 
chronological exposition of this militant campaign, we 
note the following at page 319:

“. . . the demonstrations moved Northward 
into Virginia and West Virginia; South into 
South Carolina, Georgia and Florida; Kentucky, 
Alabama, Louisiana, Arkansas and Texas. Pickets 
even appeared before those stores in restaurants 
in Ohio which violated the state eating accommo­
dation laws by denying service to Negroes. The 
Raleigh News commented that with the arrest 
of demonstrators in that city, The picket line now 
extends from the dime stores to the United States 
Supreme Court and beyond to national and world 
opinion’ ”.

It should be noted here that though the above quota­
tions referred to 'picket lines that such is not the situa­
tion in the present cases. In fact the right of these per­
sons, and those similarly situated, to otherwise freely 
express themselves in a place where they had a right 
to be was affirmatively maintained by the law enforce­
ment officials of the City of Baton Rouge on the day 
immediately following their invasion of private prop­
erty. Dr. Pollitt then goes on to cite the extremely 
wide press coverage given these demonstrations in­
cluding Eastern Europe and Russia. He mentions



13

the many nationally known figures who spoke out in 
support of such demonstrations and whose remarks 
was given widespread newspaper coverage such as 
the Rev. Dr. Billy Graham, Mrs. Franklin Roosevelt, 
United Auto Workers President, Walter Reuther, 
Florida’s Governor Leroy Collins, and various church 
and university organizations. The comments and 
publicity which followed these demonstrations was 
widely publicized throughout the South and increased 
racial tensions in each and every community in the 
South.

To briefly follow the route of these militant, well 
organized demonstrations, State by State, as they 
swept across the South, we again quote from Dr. Pol- 
litt’s article.

ALABAM A
“The demonstrations reached Alabama on 

February 25, when 35 Negro students from Ala­
bama asked for service in the Montgomery 
County Courthouse Snack Shop___ On Feb­
ruary 27, a Negro woman was attacked by one of 
the group of 25 whites who patrolled the streets 
carrying miniature baseball bats inside paper- 
bags. . . .  On March 1, a thousand Negro stu­
dents sang the National Anthem on the Capitol 
steps, . . .  On March 2, nine Negro students 
were ordered expelled for taking part in a demon­
stration, . . .  On Sunday March 6, approxi­
mately 800 Negroes left their churches for a 
demonstration prayer meeting at the State Capi­
tol grounds. A jeering mob of whites charged the 
marchers, and a riot wTas narrowly averted



14

when the police separated the two groups, and 
mounted deputies and fire trucks moved in to 
prevent further violence. Pollitt, Duke Law Jour­
nal, No. 3, Volume 1960, page 323 and 324..”

ARKANSAS
“Arkansas joined the list of Southern states 

hit by demonstrations on March 10, when about 
45 students from Philander Smith College en­
tered a Little Rock variety store and sat down at 
a white lunch counter. The incident ended with­
out violence when Police Chief Gene Smith rec­
ommended closing the counter.” (Note: No vio­
lence but the proprietor had to give up his 
rights.) Pollitt, page 325.

FLORIDA
“The demonstrations began in this state on 

February 26, with a sit-in in Tallahassee. . . . 
Ten days later, forty Negro youths staged a sit- 
down protest at a Tampa Woolworth lunch coun­
ter. The counter was closed without incident.” 
(Note again the proprietor giving up his rights). 
. . . “On March 4, eight ministers tried to enter 
a lunchroom in Miami’s Burdine’s Department 
Store, but were blocked by store employees. A 
cross was burned in front of a Negro home in 
Pensacola. . . .  On March 12, demonstrations 
reached Jacksonville. Eight Negroes sat down at 
the lunch counter of a Kress’ Dime Store. The 
counter was closed.” (Again the proprietor gave 
up his right to conduct his normal business). . . . 
“On the same day, there was near violence in Tal­
lahassee. A group of Negro and white demon­
strators at a Woolworth store were arrested, re­
placed by another group that was arrested, and



15

by a third group that was arrested/’ (Notice the 
similarity to a military battle, one assault wave 
after another) . . . “Shortly after noon, a crowd 
of about 125 Negroes gathered at a park across 
the street from the police station and started 
down the block toward the Woolworth store. Half 
way there they were met by a group of white 
men, turned and started back to their campus, 
while the whites followed with taunts and jeers.” 
(Near violence) . . . “On March 17, a group of 
eight students entered the Woolworth store in St. 
Augustine, the counter was closed, and when the 
Negroes left, they were attacked by a group of 
white men. Police called a cab to take the Negroes 
away, and the Chief of Police, armed with tear 
gas, ordered the crowd to disperse.” (Violence and 
tear gas, armed police) Pollitt, Duke Law Journal, 
Vol. 1960, pages 825 and 826.

GEORGIA
“. . . On March 10, seven Negroes took seats 

in a white section of a municipal auditorium dur­
ing a stage show. There was a brief verbal clash 
that ended when police designated the occupied 
section Negro. On March 15, approximately 200 
students in Atlanta staged simultaneous sit-ins 
at noon time at the lunchrooms of the State Capi­
tol, the Courthouse, the City Hall, the bus sta­
tions, the railway station, two office buildings 
housing Federal offices, and a variety store.” 
(Such an all out assault could not have been car­
ried on without a complete and effective organi­
zation almost military in its nature.) . . . “On 
March 16, there was a “sit-in” in Savannah, and 
on March 17, following a big St. Patrick’s Day 
parade, there were scattered fist fights and rock



16

throwing between groups of whites and Negroes.” 
(Violence once again)

NORTH CAROLINA
As North Carolina has been covered in our 

initial discussion we will not go into it further 
at this point.

SOUTH CAROLINA
“In this state the demonstrations began on 

February 23 in the City of Rockhill when 100 
Negro students from Friendship College staged 
a sit-in in two variety stores. . . .  On March 3, 
approximately 200 Negro students marched 
around in the Columbia downtown area for near­
ly two hours. They were heckled by white youths 
and left at the request of the city manager who 
wanted to avoid “an explosive situation” . . . 
On March 15, approximately 1,000 demonstra­
tors from Chaflin and South Carolina State 
Colleges converged at noon in Downtown Orange­
burg to protest lunch counter segregation. The 
police met them with tear gas and fire hoses.” 
(Emphasis added). Pollitt p 331.

TENNESSEE
“Chattanooga was the scene of the first 

Tennessee demonstration, when Negro high 
school students staged a sit-in in the Kress store. 
Rioting broke out when whites, mostly students, 
began throwing flower pots, dishes, bric-a-brac, 
and other merchandise in the store. One white 
youth grabbed a bull whip from the store stock 
and used it on a Negro. The Negroes retreated 
through the streets to a Negro section of the 
city, with bricks and other objects being hurled



17

by both sides. After the fighting had subsided, 
white youths walked through the aisles of the 
Kress and other stores, jeering at Negro custom­
ers and frightening many into leaving. . . . 
Seven whites were arrested, the police concen­
trating on the leadership.” (Notice again that the 
arrests for disturbing the peace or causing the 
violence are indiscriminate as to color). . . . “The 
demonstrations then spread to Nashville. A white 
youth was sitting with a group of Negroes at a 
dime store lunch counter when a second white
youth walked in, called him a -------------- , and
twisted his collar. The assailant then fled, but 
returned five minutes later. This time, he grabbed 
the sitting white youth, threw him on the floor, 
and kicked him. The police then ordered every­
body to leave the counter. Eleven Negroes who 
refused to comply were arrested.” (It is worth 
noting here that arrests were made only after 
violence and requests for everyone to leave and 
the only persons arrested were those who refused 
to leave.) . . . “Two days later, fifty-five more 
Negro students were arrested, this time for re­
fusing to leave the lunch counter at the Grey­
hound bus station when, the Assistant Fire Chief 
asked all persons to leave the building while a 
search for a bomb was made. . . . Two weeks 
later, shortly after the Nashville bus station 
served Negroes in the white restaurant, two 
dynamite caps—but no dynamite—were found in 
the washroom. Pollitt, Duke Law Journal, Vol. 
1960, No. 3, pages 332-33A” (Emphasis added)

TEXAS
“The demonstrations in Texas resulted in 

extremes—either of violence or of peaceful settle-



18

ment. The sit-ins began in Houston, mostly by 
Negro students from Texas Southern University, 
with immediate repercussions. A Negro drug­
store porter was slashed by a white youth with a 
knife, and three masked white men seized another 
Negro, flogged him with a chain, carved the in­
signia of the Ku Klux Klan on his chest and 
stomach, and hanged him by his knees in an 
oak tree. In the east Texas city of Marshall, 
demonstrations began on March 2 7 ,.. .  On March 
30, . . . about 200 Negroes gathered near the 
courthouse and began to sing “God Bless Ameri­
ca” and similar songs. The firemen then arrived 
and turned powerful streams of water into the 
crowd. Hoses drenched West Houston Street, 
which leads to Marshall’s two all-Negro colleges 
. . .  In contrast with the situations in Houston 
and Marshall is that in San Antonio. Through 
the intervention of the Rev. C. Don Baugh, exec­
utive director of the San Antonion Council of 
Churches, downtown dime stores agreed to serve 
Negroes . . .  In Galveston, too, lunch counters 
were voluntarily integrated and Negroes started 
eating beside whites without incident.” Pollitt, 
p. 334,-335.

VIRGINIA
“The demonstrations began in Richmond 

with a sit-in at the restaurant in Thalhimer’s 
department store. Thirty-three participants were 
arrested, which prompted a picket line urging a 
boycott . . . The protest demonstration ran a 
course similar to that in other states. Pollitt, 
Duke Law Journal, 335-336.

And again to quote Dr. Pollitt a t page 336 of his



19

exposition, “ ‘the determination that underlines the 
movement has been demonstrated from Alabama to 
Virginia’ comments the New York Times.” “Negroes 
have risked fines and jail sentences, attacks from 
angry Whites, and, in at least one case, possible death 
at the hands of a mob.”

The purpose in quoting from Dr. Pollitt’s ex­
position is not to try to assess the blame for any 
particular incident of violence in any of the com­
munities in which it occurred on either the white 
race or the colored race in that particular community. 
The purpose is to show the very thorough campaign 
that was carried on throughout the Southern states 
in the brief two months prior to the incident occur­
ring in Baton Rouge, Louisiana. It is also to point 
out that where arrests were made by the local law en­
forcement officers early and quickly, no violence oc­
curred, but where local law enforcement officers 
stood by and allowed the demonstrations on private 
property to continue, violence eventually occurred. 
Another purpose in quoting these incidents is to show 
that the right of these people to freely express them­
selves by picketing, marching through the public 
streets, marching on the courthouse, etc., freedom of 
expression where they had a right to freely express 
themselves, was in most cases not only not inter­
fered with, but was protected. Such was the case in 
Baton Rouge as shown by the statement of the case.

Again, to show the militant nature and organiza­
tion of these sit-in demonstrations, we would quote 
at some length from the article entitled “The Strategy



2 0

of a Sit-in” by C. Eric Lincoln in the January 5, 1961, 
issue, Volume 2k No. 1 of the Reporter magazine, pages 
20-23. Although the writer of the article obviously 
supports these sit-in movements, his description of 
such movement is certainly well worth noting. For 
example, his article is broken into sections as follows: 
(1), First Skirmishes; (2), Logistics and Deploy­
ment; (3), All Right Lets Go; and (4), Allies and 
Morale. We will quote at some length to give an idea 
of the development of the sit-ins campaign as con­
ducted in Atlanta.

“. . . “What came to be referred to as the ‘fall 
campaign’ got under way immediately after the 
re-opening of the colleges in mid-September. This 
time the main sit-in targets were in the heart 
of Atlanta’s shopping district. Because of its size 
and its alleged ‘leadership’ in the maintenance of 
segregated facilities, Rich’s became once again the 
prime objective . . .  By Friday, October 21, 
hundreds of students had launched attacks in 
co-ordinated waves. Service to anyone at eating 
facilities in the stores involved had all but ended, 
and sixty-one students, one white heckler, and 
Dr. Martin Luther King were all in jail. Negotia­
tions between the merchants and the Students- 
Adult Liaison Committee were promised on the 
initiative of the mayor. When the truce ended 
thirty days later, no progress had been made in 
settling the impasse, and on November 25, the 
all out attack was resumed. By mid-December, 
Christmas buying was down sixteen per cent— 
almost $10 million below normal.



21

Both the Atlanta police and the merchants 
have been baffled by the students’ apparent abil­
ity to appear out of nowhere armed with picket 
signs, and by the high degree of co-ordination 
with which simultaneous attacks were mounted 
against several stores at once. . . . The secret of 
their easy mobility lay in the organization the 
students had perfected in anticipation of an ex­
tended siege.

Much of the credit for the development of
the organizational scheme belongs t o _________
who is the recognized leader of the student move­
ment in Atlanta, and his immediate “general 
staff” . . .  its executive officer has the rather 
whimsical title of “le Commandante”. The head­
quarters of the movement are in the basement of 
a church near the University Center, and (le 
Commandante), arrives there promptly at seven 
o’clock each morning and goes through a stack of 
neatly typed reports covering the previous day’s 
operations. On the basis of these reports, the 
strategy for the day is planned. . . . Meanwhile, 
the Commandante and his staff are in conference.
. . . Deputy Chief of Operations . . . will have ar­
rived, as will a fellow student, . . . who serves 
as field commander for the committee. . . . 
Telephoned reports from Senior Intelligence Offi­
cer . .  . (already at his post downtown), will 
describe the nature of the flow of traffic at 
each potential target. . . .  A large map dividing 
the doivntown district into five areas is invari­
ably consulted and an Area Commander is 
appointed for each operational district. Assign­
ments fall into three categories: pickets (called



2 2

by the students “picketeers” ), sit-ins, and a sort 
of flying squad called “sit-and-runs.” The objec­
tive of the sit-and-runs is simply to close lunch 
counters by putting in an appearance and re­
questing service. . . .  By now it is nine or nine- 
thirty and transportation has arrived. . . . The 
Deputy Commander provides each driver with a 
drivers orientation sheet outlining in detail the 
route to be followed by each driver, and the 
places where each of the respective groups of stu­
dents are to be let out. The Area Commanders 
are given final instructions concerning the syn­
chronization of the attack, and the cars move off, 
following different routes into the city. . . . 
Meanwhile, Field Commander . . .  is checking a
communications code w ith _________, or one of
the five other licensed radio operators who man 
a short-wave radio set up in the church nursery. 
When this has been attended to, Commander
-------------  climbs into an ancient automobile
equipped with a short-wave sending and receiving 
unit and heads for the downtown shopping dis­
trict. He is accompanied by _________, whose
job it will be to man the mobile radio unit. . . .

Reports from the Field and Area Command­
ers begin to trickle in by radio and telephone. 
As the lunch hour nears, the volume of reports 
will increase to one every two or three minutes.
. . . Here are two actual reports taken from the 
files and approved for publication by the Secu­
rity Officer:

11-26-60 11:05 A.M.
From: Captain _________
To: le Commandante
Lunch counters at Rich’s closed. Proceeded



23

to alternative objective. Counters at Wool- 
worth’s also closed. Back to Rich’s for picket- 
duty. Ku Klux Klan circling Rich’s in night­
gowns and dunce caps. “Looking good!”

(Emphasis throughout added)

The above quoted portions from this article should be 
sufficient to show that regardless of the statements of 
the leaders of some of these and other movements 
about “passive resistance” etc., these movements are 
anything but passive. They are well organized and 
well supported financially. No reasonable man can 
read the examples cited by Dr. Pollitt, the militant 
campaign described by Mr. Lincoln, and know of 
the high degree of racial tension which exists through­
out the South, without coming to the conclusion that 
it is entirely foreseeable that these demonstrations 
can disturb and alarm the public and result in vio­
lence. Must the individual communities throughout 
the South, and for that matter, the nation, wait until 
violence occurs and mobs run rampant before taking- 
action? Or may they profit by the experience of other 
cities and protect the rights of these people when they 
are demonstrating where they have a right to demon­
strate and order them to cease and desist when they 
are demonstrating on private property where they 
have no right to do so?

Counsel for defendants and the Federal Govern­
ment, in argument in their brief, object to the City 
of Baton Rouge foreseeing violence in these demon­
strations. But how can you read the history of these 
demonstrations, the history of this militant movement



24

from the time it began some short two months before 
these cases arose, and thereafter, without foreseeing 
violence as a result thereof. There is only one possi­
ble way to eliminate the probability of violence from 
these demonstrations. And that is for the private prop­
erty owner to completely relinquish his right to re­
fuse admission to his property to other people for 
whatever reason he might have, and particularly for 
an unwanted demonstration. In the absence of his do­
ing so, there are only three possible results, (1), that 
these people continue to occupy seats which would 
normally be used by other patrons of his business, 
thereby interfering with his business and a trans­
gression against his own civil rights; (2), violence, 
resulting from the proprietor attempting to forceably 
evict these people or other people attempting to use 
the seats which these people have taken and which, 
according to the proprietor, his other patrons have a 
right to use; or (3), their being forceably removed 
and/or arrested by local law enforcement authorities 
in a proper effort to protect the rights of its citizens 
and avoid violence and disorder in our community.

And furthermore, if violence is not foreseeable 
as a result of these “sit-ins” “freedom rides”, etc., 
why does the Federal Government send hundreds of 
Federal Marshalls into Montgomery, Alabama, Jack- 
son, Mississippi, and New Orleans, Louisiana? The 
Government took the position that discrimination in 
bus stations and railway stations in Montgomery, 
Alabama, was unlawful and it therefore called upon 
the law enforcement officials of Montgomery, Ala­



25

bama, to arrest any one who interfered with the 
exercise of the right of the defendant to go where 
he chose in such interstate facility. And when the 
government felt that the Montgomery law enforce­
ment officials could not cope with the situation, and 
foresaw possible violence as a result thereof, the gov­
ernment sent several hundred Federal Marshals to 
Montgomery for the express purpose of preventing 
violence. Yet, in the instant three cases, the govern­
ment cites no authority, no law, no constitutional 
provisions, and no case that says these defendants 
have a right to demonstrate on private property or 
have a right to remain on private property ofter being 
told they would not be served and asked to leave. 
In other words, the government felt a responsibility 
to protect the rights of these Negro people under the 
Interstate Commerce Act, and to prevent violence, 
and it moved immediately with its law enforcement 
officials to do so. Why does it not feel the same 
responsibility to protect the rights of other citizens 
or, at least, not oppose the protection of those rights, 
and the prevention of violence, by the City of Baton 
Rouge?

So then, we come to Baton Rouge, Louisiana, on 
the morning of March 28, 1960. For the preceding 
month and a half the newspapers had been carrying 
story after story of the sit-in demonstrations and 
resulting violence in other cities. Headline stories of 
one group of people violating the property rights of 
another group of people and being supported therein 
by outstanding national figures and the Federal



26

Government. Stories of people refusing to leave another 
individual’s property after having been requested to do 
so, the type of conduct which is, to the people in 
Baton Rouge, completely unlawful and a direct affront 
to their normally law abiding nature. Couple this with 
already inflamed emotions and high racial tension 
which has become increasingly worse since 1954. What 
were responsible citizens and officials charged with 
the responsibility of preserving peacefulness and law 
and order in the community to do? Were they to 
order the proprietors of private businesses to open 
their doors to these people to permit them to come in 
even though they did not wish them to do so? Should 
they have arrested these proprietors if they refused 
to allow these people to come in? Hardly, because 
there was no legal authority for them to do so. What 
then? Must they have waited until violence, fist fights, 
brick throwing, etc. finally commenced? Should they 
have waited until the proprietor attempted to force- 
ably remove these people with its resulting violence 
and possible damage to his store? And if so, who then 
should they have arrested for disturbing the peace? 
According to the defendants, it would be the pro­
prietor. But what has the proprietor done, except 
to exercise his own right to refuse admission and to 
eject those who refuse to leave when requested to 
do so? I cannot believe that it is the intention of this 
Court to tell individual communities throughout the 
nation that you may not take quick action to prevent 
violence and disorder in your community by quickly 
arresting persons engaging in a demonstration on



27

private property against the owner’s wishes, but must 
instead wait until violence and disorder actually occur. 
Such a concept turns our civilization back, not hun­
dreds, but thousands, of years.

It should be noted at this point that although 
the stated respondent in this matter is the State of 
Louisiana, the State is not the real party at interest. 
The real party at interest in all three of these cases 
is the City of Baton Rouge, the community of Baton 
Rouge. Disorderly conduct or mob rioting in the City 
of Baton Rouge affects no one else in the State of 
Louisiana. The only people concerned here with keeping 
the peace, people who would desire to carry on their 
normal daily activities without being subjected to 
possible violence and disruption of those activities, are 
the people living in the local community known as the 
City of Baton Rouge. What is a local community, 
whether it be located in the State of Louisiana, Idaho, 
New York, California or Nevada, to do in these cir­
cumstances? A local community in these circumstances 
has, actually, only three choices: (1), it may sit idly 
by and allow these persons to possess a portion of the 
property of another of its citizens, for an unwanted 
demonstration, against his wishes, until that citizen 
relinquishes his own rights; (2), it may sit idly by 
until that private citizen attempts to forceably eject 
these persons with the resulting violence, and prob­
able spreading of such violence and disorder to its 
other innocent citizens; or (3), it may act quickly, for 
the benefit of all of its citizens, to prevent and termi­
nate such illegal demonstrations, before violence and



28

disorder occur, by ordering these persons to leave the 
premises and cease and desist from such illegal dem­
onstrations and then by arresting such persons if 
they refuse to leave at the request of law enforcement 
officials. It seems obvious to the writer that under 
the circumstances and conditions so readily apparent 
in these cases, so readily apparent from the record 
itself, that the proper course, the more reasonable 
course, the more prudent course, is to act quickly and 
preserve the peace, order, and tranquility of the com­
munity.

The defendants and the government, by taking 
isolated answers from the testimony reflected in the 
record in these three cases, make much of the con­
tention that these defendants were following a nor­
mal every day course of conduct in seeking service 
and that there is no evidence in the record to justify 
a conviction. However, we respectfully submit, that 
it is impossible to read all of the testimony of the 
proprietors, managers and employees of the three 
places of business involved and the sworn motions 
to quash in which the defendants testify and admit 
that they were “engaged in an activity to protest 
segregation” and that they did “in protest of the 
segregation laws of the state of Louisiana, . . .  on 
the 29th day of March, 1960, ‘sit-in’ a cafe counter 
seat . . .  ”, without coming to the inescapable con­
clusion that there is ample evidence in the record that 
these defendants were engaged in participating in an 
unwanted anl illegal demonstration on private prop­
erty against the wishes of the owner and that after



29

being requested to remove themselves and cease and 
desist with such demonstration, both by the owner, 
manager or employee, and police officers, refused to 
honor such request or obey such direction from the 
local law enforcement authorities. And, as admitted 
by the government on page 18 of its brief, “the deci­
sion (Thompson vs. City of Louisville, S62 U.S. 199, 
and others cited) does not mean that a Federal Court 
may reverse a state conviction merely because, upon 
re-evaluating the record, it finds that the evidence is 
insufficient to support the conviction.” We respect­
fully submit, that there was evidence in the records 
to support these convictions and that, therefore, this f 
Honorable Court should not substitute its judgment 
for that of the jury or trial court, as the case may be, 
as to whether or not the verdict should have been 
guilty or not guilty.

Now, with the background of this militant cam­
paign before us, let us look at the situation in the 
one community involved, Baton Rouge, Louisiana, 
during these three days of demonstrations. Of course, 
the Baton Rouge newspapers had been, for the past 
several weeks, printing the same stories which appear 
in Dr. Pollitt’s article. The Baton Rouge morning 
paper, the Morning Advocate, of Sunday, March 27, 
1960, carried the following headline and story:

“NEGRO PROTESTS SPREAD — PICK­
ETING, PARADES, AND RALLIES STAGED
OVER WIDE AREAS.”



30

“Mass anti-segregation demonstrations in 
support of Negro lunch counter sit-downs in the 
South spread across the country Saturday . . .

“Newport News, Virginia, Focal point of the 
nation-wide demonstration movement which stu­
dent leaders called ‘operation 26’ . . . Sit-down 
protests occurred in many cities, among them 
Charleston, West Virginia, and there was pick­
eting in Savannah and Atlanta, Georgia — In 
Atlanta, a spokesman for CORE (Congress of 
Racial Equality) said 25,000 leaflets were being 
distributed urging a boycott of stores with segre­
gation policies . . . More than five hundred per­
sons belonging to CORE and another interracial 
group posted picket lines at 20 variety stores in 
the downtown Los Angeles area. None of the 
stores have a segregation 'policy. They were the 
latest sympathy protest in the Los Angeles area 
. . (Emphasis added)

On Monday morning March 28, 1960, the Morn­
ing Advocate carried the headlines “CROSSES 
BURNED IN DEEP SOUTH STATES; STUDENTS 
STAGE DESEGREGATION DEMONSTRATIONS” 
In the Baton Rouge evening paper, The State Times, 
of March 28, 1960, the headlines and story were as 
follows:

“CROSS BURNINGS ARE REPORTED IN 
SEVERAL STATES OVER THE WEEK END.

“The ninth week of anti-segregation dem­
onstrations began in the South today following 
a week-end of cross burnings.



31

Hooded klansmen burned crosses in Alabama, 
Georgia, Florida and South Carolina as students 
in the North and west joined Negroes in their 
campaign against separate lunch counter facili­
ties . . . Both white and Negro students support­
ing the campaign of Southern Negroes picketed 
stores in State College, Pennsylvania, Iowa City, 
Iowa, Los Angeles, California and Albany, New 
York. . . .  A special Mayor’s committee said 
the Nashville incident wiped out three weeks of 
work to ease racial tensions . . .

(Emphasis added)
On Tuesday, March 29, 1960, the Morning Advocate 
carried the following headlines on opposite sides of 
the page:

“NEGRO STUDENTS ARRESTED HERE 
AFTER SIT-DOWNS; GROUP OF SEVEN 
JAILED, LATER BONDED; SOUTHERN 
(SOUTHERN U N I V E R S I T Y )  RALLY 
THREATENS BOYCOTT”
“CHURCHES BURNED AS AFRICAN AU­
THORITIES BATTLE NEGRO MOBS—DEM­
ONSTRATORS FIGHT POLICE, OTHER 
NEGROES.

“Great fires set by mobs raged Northeast of 
Cape Town Monday night as white police battle 
with Negroes and militant Negroes fought both 
police and other Negros. It was the fiery, violent 
climax to South Africa’s “day of mourning”.

Again, on Tuesday afternoon, March 29, 1960, the 
Baton Rouge State Times carried the following head­
line and story:



32

“TWO ARRESTED IN SECOND ‘SIT- 
DOWN’ INCIDENT.”

Negro students from Southern University 
here today continued their sit-down lunch counter 
demonstrations with an invasion of Sitman’s Drug 
Store at Main and North Third Street . . . ”

Then, on Wednesday morning, March 30 of 1960, 
the Baton Rouge Morning Advocate carried the fol­
lowing headline and sub-headline:

“THIRD STREET BOYCOTT BY NE­
GROES URGED AFTER NEW SIT-DOWN 
CASE. SEVEN MORE STUDENTS ARREST­
ED HERE; REPORT CROSS BURNING—NE­
GRO MINISTER ASKS CONGREGATION TO 
CEASE SHOPPING AT EASTER SEASON”

And on Wednesday afternoon, March 30, the Baton 
Rouge States Times carried the following headlines 
and story:

“NEGROES MARCH D O W N T O W N ;  
GRAND JURY BEGINS INQUIRY—TWO 
THOUSAND DESCEND IN MASSE ON THIRD 
STREET; SOUTHERN UNIVERSITY HEAD 
PROMISES POSITIVE ACTION AGAINST 
SOME STUDENTS”

“Some two thousand Southern University 
Students marched on downtown Baton Rouge 
and the State Capitol at 9 A.M. today, and nearly 
five hours later the Parish Grand Jury began a 
full scale investigation of a three day series of



33

Negro demonstrations here . . . and Mayor- 
President Jack Christian asked citizens of the 
Parish to keep away from heavily patrolled areas 
and urged people to ‘let your law enforcement 
agencies take care of this situation’ . . . The 
students, orderly, quiet and obviously well-briefed 
as to behavior marched on the State Capitol and 
after picketing briefly the Greyhound Bus 
station, McCrory’s, S. H. Kress & Co. and Sit- 
man’s Drug Store at Third and Main . . . Dem­
onstrations reached a peak today after lunch 
counter sit-downs Monday and Tuesday . . .

Dr. Clark (Dr. Felton Clark, President of 
Southern University) said in a prepared state­
ment; “We have consistently advised students 
against the course of action which a segment of 
them are now taking . . .’ (Emphasis added)

Mayor-President Christian said in a state­
ment; . . .  If the people will refrain from coming 
to the areas patrolled, it will be much easier to 
handle the flow of traffic and will keep the con­
gestion downtown to a minimum . . . The thing 
that bothers us is that someone may do some­
thing violent which of course will make it very 
difficult for our present forces to handle the 
situation . . .  We are doing our best to prevent 
any acts of violence or injury to anyone or to any­
one’s property and so far we have succeeded. . .

In the midst of the morning demonstration, 
City Police received a report of a bomb in Sit- 
man’s Drug Store, scene of a Negro lunch 
counter sit-down strike yesterday. The store was 
closed by police and sidewalks made off limits 
to pedestrians while a thorough search was 
made.” (Emphasis added)



34

Finally, the Morning Advocate of Thursday 
March 31, 1961, at a time when, as far as local 
authorities knew, these demonstrations were scheduled 
to continue and to spread, carried the following head­
lines and stories:

“S U S P E N S I O N  FOLLOWS BATON 
ROUGE DEMONSTRATIONS; THE THIRD 
DAY OF UNPRECEDENTED DEMONSTRA­
TIONS AGAINST SEGREGATION BY NEGRO 
STUDENTS HERE WEDNESDAY . . . ”
On the opposite side of the page there was the 

following headline:
“HOSES BREAK UP TEXAS NEGRO 

DEMONSTRATION.”
“Firemen turned streams of water into 

groups of young Negroes late Wednesday to calm 
a demonstration lunch counter incident.”
Is it possible to read the history of these “sit-in” 

demonstrations and the content of news which the 
general public in Baton Rouge was receiving prior to 
and at the time of these incidents, as shown by the 
preceding headlines and stories, and say that there 
was not sufficient probability of violence or disorder 
to justify the stopping of these demonstrations? 
Neither the city of Baton Rouge, nor the State of 
Louisiana for that matter, was attempting to persecute 
anyone, or deprive any citizen of any of their rights, 
in the action that they took in the midst of these 
sit-in demonstrations which resulted in the arrests in 
the present cases. To the contrary, it seems to us to 
be obvious that all the law enforcement officials of the



35

City of Baton Rouge did, was to take only such action 
as was absolutely necessary to preserve order, peace 
and tranquility in our community, to avoid violence, 
disorder and mob rioting and preserve the stable, 
moderate, law abiding community which we have. 
That they were not trying to deprive anyone, much 
less these defendants and others similarly situated, 
of any of their constitutional rights, appears obvious 
from the fact that not only did the law enforcement 
officials not interfere with these persons when they 
were picketing or when they were demonstrating on 
the public streets and marching on the State Capitol, 
they actually enforced and protected their right to do 
so. Only when they moved their demonstration to a 
place ivhere they had no right to be for such purpose, 
did law enforcement officials take any action. Further­
more, there can be no doubt that a probability of 
violence existed and that these defendants, being 
reasonable people, should have known, and in fact 
did know, of such probability. The statement by the 
Mayor of Baton Rouge indicates the concern with 
which public officials viewed these demonstrations 
when he said “we are doing our best to prevent any 
accident, violence or injury to anyone or anyone’s 
property and so far we have succeeded”.

In the Baton Rouge Morning Advocate of March 
31,1961, the publishers set forth a front page editorial 
(which in itself indicates the concern with which 
responsible citizens viewed these demonstrations) and 
which we believe to be worthwhile to quote from at 
length at this point.



36

“LET’S KEEP OUR HEADS”
“The good relationship between the races in 

Baton Rouge is threatened by the utterance of 
the ugly word ‘boycott’ a development which we 
are sure most leaders in both races in the com­
munity regret. This is an unnecessary and unwise 
threat aimed at people . . . .

It is unfortunate that the excellent relation­
ships which have prevailed should be interrupted 
even slightly, as they have been, by a spread 
through this city of the ‘sit-in’ demonstrations 
conducted by Negro college students with much 
excitement but little lasting effect in a number of 
other communities. . . .

These are times that require understanding, 
good will, and patience, regardless of how hard 
these things may sometimes come to some among 
us. The recognition and acceptance that really 
count cannot be hastened or ever won by any 
action that creates alarm, destroys good will or 
alienates the different groups in the community. 
Anyone on either side of such a controversy who 
threatens or hints at mob action automatically 
destroys the very thing for which he claims to 
be struggling. Civilized people of all races are 
revolted and offended by the thought of violence 
and disorder.

Radicals on one side must realize that no 
changes can be brought about by immature dem­
onstrations and disorders. Radicals on the other 
side must realize that changes cannot be prevented 
by threat or intimidation. The great majority of 
the people, who want none of all this, will con­
demn both. Our society may have its imperfec­



37

tions, as do all things of human design. But this 
is not the way improvements will be brought 
about. Time and orderly evolution can bring prog­
ress. Force, can bring none.” (Emphasis added)
As will be seen from the foregoing, no matter how 

many isolated sentences are taken from the testimony 
in these three cases, and regardless of the argument 
that these defendants were in these establishments for 
normal business purposes, it is abundantly clear that 
these defendants were engaged in a demonstration to 
protest the segregation customs of the people of the 
State of Louisiana, and invaded private property for 
the sole purpose of carrying on their organized 
demonstration. It is also abundantly clear that the 
carrying on of such demonstrations on private property 
against the owner’s wishes was the doing of an act in 
such a manner as would foreseeably and unreasonably 
disturb or alarm the public.

The government contends in its brief that the 
Trial Court must ignore the circumstances surround­
ing these cases and the fact that they were a part of a 
well organized militant movement or so called pas­
sive harassment; and that he must ignore the fact that 
such conduct is likely to “disturb the sensibilities” and 
“arouse resentment” among other members of the 
public and the owner, and their agents and employees, 
of the business establishments invaded. They refer 
to such as taking “judicial notice” and then cite the 
cases of Ohio Bell Telephone Company v. Public 
Utility Commission, 301 U.S. 292; United States v. 
Shaughnessy, 234 Fed. 2nd 715; and McCormick evi-



38

clence Section 32k (195k) for the proposition that 
Courts can take judicial notice, especially in criminal 
cases, only of obvious and incontrovertible facts. (Gov­
ernment Brief pages 25 and 26) However, Louisiana’s 
Courts are specifically authorized by state statute to 
take judicial notice of that which the trial Judge in 
these three cases took judicial notice of, if the taking of 
judicial notice was necessary at all, that is, racial con­
ditions prevailing in the state. LRS 15:422, originally 
adopted as Act No. 2, Section 1, of 1928, provides in 
part as follows:

“Section 422. Judicial notice of specific 
matter.

Judicial cognizance is taken of the following 
matters: One, . . .  (6) the laws of nature, the 
measure of time, the facts disclosed by the cal­
endar, the facts of geography, the geographical 
and political division of the world, the facts of 
history and the political, social and racial condi­
tions prevailing in this state; (emphasis supplied)
Taking judicial notice of racial conditions pre­

vailing in the State has been sustained by the Louisi­
ana Supreme Court and is particularly worth noting 
in the case of State v. Bessa et al 115 La. 259, 38 So. 
985 (1905). In this case the two defendants, Negroes, 
were convicted of striking a white man with intent to 
murder and were sentenced to seven years in the peni­
tentiary. The defendants reserved a Bill of Exceptions 
to a remark made by the District Attorney in the 
peroration of his opening address to the jury. Ac­
cording to the defense the prosecuting attorney had



39

said to the jury that the victim (a white man) was 
to the jurors trying the case “a creole fellow brother 
in blood”. According to the District Attorney he had 
said to the jury “a fellow brother in blood” had been 
met by two unknown riders, and assaulted . . . The 
Trial Judge’s statement as to what occurred was as 
follows: “In his opening address to the jury the Dis­
trict Attorney referred to the prosecuting witness 
as a “creole fellow in blood” . . .”

The Louisiana Supreme Court ruled as follows 
on this point:

“Taking the statement of the Judge, and 
assuming that the word ‘brother’ was not used 
—in other words, assuming that the expression 
was simply ‘fellow in blood’ and not ‘fellow 
brother in blood’—the question may be asked: 
Why did the District Attorney bring up the mat­
ter of blood, if not to draw the color line? Here 
was a jury all white, and two Negroes being tried 
for striking a white man and nearly killing him. 
The Court thinks it knows enough of the situation 
between the whites and the Negroes in Louisiana 
to knoiv that the average white man is prone 
enough to be prejudiced in such a case, without 
being exhorted thereto by the law officer of the 
government, and that, such an appeal having 
been once made, the effect thereof cannot be 
counteracted by any mere cautionary words of 
sober reason that may be uttered by the Judge.”

The Court then reversed the conviction on the basis 
of the remark made and its having taken judicial 
notice of racial conditions prevailing in the state. Con­
sequently, we respectfully submit, that if knowledge



40

of the fact that these sit-in demonstrations are part 
of a well organized and deliberate movement of dem­
onstration against segregation customs, and knowl­
edge of the tensions existing between the races in 
Baton Rouge, is the taking of judicial notice, the Trial 
Court Judge was amply authorized by the law of Lou­
isiana to take such notice.

It is interesting to note, however, that the govern­
ment then goes on to say (Government Brief, page 
26) that, “of course, it is plain that petitioners con­
duct was likely to disturb the sensibilities of those 
members of the public who hope for the preservation 
of racial segregation in restaurants and at lunch 
counters. It will arouse resentment among the preju­
diced. . . .”

I could not agree with the government more that 
it would so “disturb the sensibilities” and “arouse re­
sentment”. And certainly, if such is so “plain,” it is 
just as “plain” that these demonstrations, and this 
method of protesting segregation customs, could “dis­
turb the sensibilities” and “arouse resentment” among 
the unprejudiced, law abiding citizens, who abhor 
such an invasion of private property.

II.

The sta tu te  under w hich petitioners w ere convicted 
is alm ost identical to sta te  s tatu tes and  m unicipal 
ordinances w hich have been  sustained  throughout 
the  nation  and  as applied  to  these facts and  circum ­
stances is no t so vague, indefin ite  and  uncerta in  as



41

to o ffend  the  due process clause of the  F ourteenth
A m endm ent.

Defendants further contend, through a rather 
complicated, almost mathematical-formula-like re-ar­
ranging of words, that there is no evidence that de­
fendants committed any acts bringing them within 
the ambit of LRS 14:103, or that, if there is such 
evidence, the statute, as applied to the defendants in 
these cases is so vague and indefinite as to be uncon­
stitutional. Nothing could be farther from the truth. 
The statute in question is almost identical to statutes 
and ordinances used in almost every city and every 
state in the union. Disturbing the peace, order and 
tranquility of a community can consist of so many 
different types of acts under so many different kinds 
of circumstances that to require the state to specif­
ically list and particularize each and every such act, 
would require an impossibility. A very thorough dis­
cussion of this proposition is made by the Appellate 
Court of Florida in its opinion in the cases of Steel, 
et al v. City of Tallahassee and Armstrong v. City 
of Tallahassee No. 671 in which this court refused
certiorari at its October term 1960. -------------  U.S.
_________ The Court said:

“the charge and the ordinance seek to deal with 
conduct similar to that embraced within the com­
mon law offenses of ‘breach of the peace’ and 
‘disorderly conduct’. . . . The former, breach of 
peace, is somewhat more restricted and reaches 
only conduct which disturbs or tends to disturb 
the tranquility of the community. This would ob­



42

viously include fighting, damaging of property, 
threatening injury, display of firearms, loud and 
boisterous language, menacing gestures in an an­
gry manner, excessive noise and other conduct 
which would put others in terror for their safety 
or would be destructive to their reasonable com­
fort. However, such clear rashness is not the ex­
tent of the scope of the offense. An act of vio­
lence or an act likely to produce violence is with­
in its orbit, but also embraced are acts which, by 
causing consternation and alarm, disturb the 
peace and quiet of the community. Cases cited in 
5 Words and Phrases page 767 under topic “Vio­
lence”. Blackstone is quoted as saying that, be­
sides the actual breach of the peace, anything 
that tends to provoke or excite others to break 
it is an offense of the same denomination. . . .

The term “peace” used in this connection is 
said to mean the tranquility enjoyed by the citi­
zens of the municipality or the community where 
good order reigns among its members. This is the 
natural right of all persons in political society 
and any violation of that right is a breach of 
the peace. Davis v. Burgess (Michigan) 20 
Northwestern 540; 52 Am. St. Rep. 828. . . .

Testing the conduct of the appellants against 
these expressions of the elements of the common 
law offenses above discussed and the words 
charged in Count 2, it seems clear that such con­
duct came within the condemnation of the ordi­
nance and within the offense charged in the 
count. Though there was no violence actually 
displayed or patently threatened or noisy tumult 
made or exhibited, yet the willful, obstinate and 
persistent refusal to vacate after a representative



43

of the owner and management had requested it 
was an ominous threat to the tranquility of the 
vicinity. Stubborn determination to hold onto the 
private property of another until some distaste­
ful policy of another is altered to the transgres­
sor’s liking, would be greatly disturbing to the 
management, other employees of the business and 
all others who may be present.

In State v. Cooper, (Minnesota) 285 North­
west 903, 122 ALE 727, it was held that defend­
ants conduct in carrying a large banner some 
three feet in length on each side of which was 
printed the words “Unfair to private chauffeurs 
and helpers union, Local 912” immediately in 
front of a private home in an exclusively resi­
dential district was held sufficient to sustain a 
conviction of violation of an ordinance forbid­
ding the making, aiding, countenancing or assist­
ing in making any disturbance or improper diver­
sion. . . .  In sustaining the conviction the court 
said:

“Defendants conduct was likely to arouse 
anger, disturbance or violence. That there was 
no outburst of violence was not due to his behav­
ior but to the fortunate circumstance that he was 
arrested and taken away before any trouble broke. 
The defendants presence at the McMillian home 
carrying this banner was likely to provoke trou­
ble and breach of peace___” (Emphasis added)

This position is further strongly supported by 
the case of People v. Feiner, (1950) 300 New York 
391, 91 Northeastern 2nd 316, conviction affirmed at 
SkO U.S. 315. In this case the defendant was convicted



44

of disorderly conduct under a statute of the State of 
New York which read in part as follows:

“Any person who with intent to provoke a 
breach of the peace, or whereby a breach of the 
peace may be occasioned, commits any of the fol­
lowing acts shall be deemed to have committed 
the offense of disorderly conduct;

. . .  2. acts in such a manner as to annoy, 
disturb, interfere with, obstruct, or be offensive 
to others;” (Emphasis added)

In this case the defendant was addressing a group of 
people on the street. (Note here that the defendant 
was on a public street where he had a right to be). 
Among other things, the defendant called the Mayor 
a “champagne sipping bum” and President Truman 
a bum, referred to the American Legion as Nazi 
Gestapo Agents, and then said that the 15th Ward was 
run by corrupt politicians who were operating horse 
rooms. A nearby police officer, when he figured that 
the crowd was “getting to the point where they 
would be unruly” asked the defendant to get down 
off his box. After the defendant refused three times, 
the policeman arrested him and he was subsequently 
charged under the above quoted ordinance. The New 
York Appellate Court affirmed the defendant’s convic­
tion under sub-section 2 of the statute, as quoted 
above, saying that it was well settled that the judg­
ment of conviction in a case such as this will be 
affirmed if the evidence establishes a violation of any 
of the subdivisions of the section. (Here, it was sub­
section 2 which prohibits “acts in such a manner as to



45

annoy, disturb, interfere with, etc.”) The court also 
said that the officer was “motivated solely by a proper 
concern for the preservation of order and the pro­
tection of the general welfare in the face of an actual 
interference with traffic and an imminently threat­
ened disturbance of the peace of the community.” It 
also said that a clear danger of disorder and violence 
was threatened and defendant deliberately refused to 
accede to the reasonable request of the officer. On 
appeal to the Federal Court on constitutional grounds, 
the Court said that petitioner was neither arrested 
nor convicted for the making or content of his speech 
but rather that it was the reaction which it actually 
engendered. The Court also said that “the finding 
of the State Courts as to the existing situation and 
the imminence of great disorder coupled with peti­
tioner’s deliberate defiance of the police officer con­
vinces us that we should not reverse this conviction in 
the name of free speech.”

As further support of the foregoing argument, 
we would cite 8 Am. Jur. 834 which says “in general 
terms, a breach of the peace is a violation of public 
order, a disturbance of the public tranquility, by 
an act or conduct . . . tending to provoke or excite 
others to break the peace . . .  it may consist of an 
act of violence or an act likely to produce violence. 
It is not necessary that the peace be actually 
broken to lay the foundation for a prosecution of this 
offense. I f  what is done is unjustifiable and unlawful, 
tending with sufficient directness to break the peace, 
no more is required.”



46

Furthermore, American Jurisprudence states a 
principle, and cites cases in support thereof, which 
would seem to specifically cover the case at bar. At 
page 835 thereof, the following principle is set forth:

“An act which if committed at a certain 
place or time would not amount to a breach of 
the peace may constitute a crime if committed at 
another time or place and under different cir­
cumstances. In other words, whether or not a 
given act amounts to a breach of the peace can 
only be determined in the light of the circum­
stances attending the act and the time and place 
of its commission

We would further cite in support hereof the case 
of Nash v. United States, 229 U.S. 373, 33 S. 
Ct. 780, 57 L.Ed. 1232, dealing with the anti-trust 
act, an act under which a reasonable person of 
“common intelligence” would have much more diffi­
culty in determining what was expected of him then 
under the statute involved here. In that case, this 
court quoted with approval the statement that “the 
criterion in such cases is to examine whether common 
social duty would, under the circumstances, have sug­
gested a more circumspect conduct”.

In addition to these defendants engaging in an 
organized, militant demonstration on private property 
in an effort to harass the owner thereof into acceding 
to their wishes, at a time, and in a place and under 
such circumstances that any reasonable man should 
have known that violence and disorder were likely 
to occur, we have the further element of their refusal



47

to obey the lawful direction of a police officer, which 
can, in itself, amount to a breach of, or disturbing 
the peace, order and tranquility of a community. This 
element of the defendants’ conduct relates itself to 
the duty and responsibility of a police officer in 
any community to act promptly to maintain the peace, 
order, and tranquility of his community and to prevent 
violence and disturbances from occurring where pos­
sible. As was said in the case of People v. Nixon, 
161 Northeast 463, at page 466:

“Police officers are guardians of the public 
order. Their duty is not merely to arrest offenders, 
but to protect persons from threatened wrong and 
to prevent disorder. In the performance of their 
duty they may give reasonable direction.”
We would refer the Court also to the cases of 

People v. Calpern, 181NE 572; Drews, et al, v. State 
of Maryland, 167 Atlantic 2nd 341 and People v. Arko, 
199 NYS 402, in which last case the court said at 
page 405:

“The case must present proof of some definite 
and unmistakeable behavior which might stir if 
allowed to go unchecked, the public to anger or 
invite dispute, or bring about a condition of un­
rest and create a d istu rb a n ce (Emphasis added)

There can be no doubt in these cases that there 
was some definite and unmistakeable behavior (the 
participation in a well organized demonstration on 
private property, the refusal to leave, and the re­
fusal to obey the direction of a police officer) which 
“might stir if allowed to go unchecked, the public



48

to anger or invite dispute, or bring about a condition 
of unrest and create a disturbance.”

III.
These arrests  and  convictions do not constitu te  “state  
action” so as to b ring  them  w ith  the prohib ition  of 
the  F ourteen th  A m endm ent against racially  d iscrim ­

inatory  adm in istra tion  of state  laws.

Now let us consider the contention that these 
arrests and subsequent convictions amount to “state 
action” to enforce private discrimination which is pro­
hibited by the Fourteenth Amendment to the United 
States Constitution and the doctrine laid down by 
this court in the Civil Rights Cases, 109 U.S. 3 and 
Shelly v. Kraemer 334 U.S. 1. As we pointed out in 
our Brief in Opposition the cases relied upon by de­
fendants do not support their argument. In the Civil 
Rights cases, decided in 1883, and which declared the 
Civil Rights Act of Congress of March 1, 1875, as 
unconstitutional in not being authorized by the Thir­
teenth or Fourteenth Amendment, the majority opin­
ion may be summarized as found on page 14 of the 
report:

“In other words, it (the Civil Rights Act) 
steps into the domain of local jurisprudence, and 
lays down rules for the conduct of individuals in 
society toward each other, and imposes sanction 
for the enforcement of these rules, without re­
ferring in any manner to any supposed action 
of the state or its authorities.”
This rule of law has existed unimpared to this 

day and is followed in the Shelly case, which set



49

forth the following proposition which is also still the 
law:

“Since the decision of this Court in the Civil 
Rights cases, 1883, cited above, the principle has 
become firmly imbedded in our constitutional law 
that the action inhibited by the first section of 
the Fourteenth Amendment is only such action 
as may fairly be said to be that of the States. 
That Amendment erects no shield against merely 
private conduct however discriminatory or 
wrongful.” (emphasis added)
This principle of law has been consistently fol­

lowed until the present time and has been recently 
reiterated in the cases of Williams v. Howard Johnson 
Restaurant, 268 Fed. 2nd 845 and Slack v. Atlantic 
White Tower System, 181 Fed. Supp. 124.

The defendants, and the Government, in an at­
tempt to avoid and get around the language of the 
above cited cases and the principle of law set forth 
therein, have come up with the rather ingenious argu­
ment, never before urged insofar as we have been able 
to determine, and citing no authority which actually 
supports such argument, that the custom and personal 
choice of association, (and corresponding right of 
choice not to associate,) of persons living within the 
physical boundaries of a particular state, become the 
positive policy of that state simply because the per­
sonal policy of the individual person exists and is 
believed in by a majority of the people of that state. 
They further urge, and again in order to avoid the 
very clear principal of law laid down by the above 
cited cases, that the State of Louisiana, by having



50

previously enacted school segregation laws and other 
segregation laws on other subjects, has, in effect, 
deprived its citizens of the right to privately dis­
criminate or, to state it correctly, deprived its citizens 
of the right to associate, and the corresponding right 
not to associate, with whomsoever they please for 
whatever reason they please, that is guaranteed to 
them by the Constitution and the principal of law 
enunciated by this Court in the above cases.

The only cases cited by the government as au­
thority for its rather ingenious argument are Burton 
v. Wilmington Parking Authority 365 U.S. 715; Yick 
Wo v. Hopkins 118 U.S. 356; Sunday Lake Iron Co. 
v. Wakefield 247 U.S. 350; and the dissenting opinion 
of Mr. Justice Harlan in Plessy v. Ferguson 163 
U. S. 537. Although the Burton case does not sup­
port this contention, the government quotes at length 
from the concurring opinion of Mr. Justice Stewart 
as though that concurring opinion does support their 
argument. However, a quick reading of the case and 
the concurring opinion of Mr. Justice Stewart in­
dicates clearly that it does not. This case involved a 
statute of the State of Delaware which limited the 
right of a proprietor to select his customers even 
though the statute is couched in permissive terms. 
The statute permits the proprietor of a restaurant 
to refuse to serve persons “whose reception or enter­
tainment by him would be offensive to the major part 
of his customers . . .” Mr. Justice Stewart in his 
concurring opinion said “there is no suggestion in the



51

record that the appellant as an individual was such 
a person”. In the cases at bar there is no such statute 
regulating, in any way, a proprietor’s choice of cus­
tomers, and such proprietor may refuse service or 
admission to any person he chooses for whatever per­
sonal reason he alone might have. The Tick Wo and 
Sunday Lake cases concern a clearly discriminatory 
application of a state statute. Here, the statute in 
question, which does not refer to race in any respect, 
has been applied uniformly throughout the years to 
members of all races, creeds or faiths whenever they 
engaged in unlawful activities which were likely to 
disrupt the peace, order and tranquility of the com­
munity. Although the dissenting opinion of Mr. Justice 
Harlan in Plessy v. Ferguson has never been adopted 
by this court with respect to this type of case, the 
quotation therefrom by the Government, with which 
we do not argue, is not applicable to these cases nor 
does it support their argument as no civil rights 
“as guaranteed by the supreme law of the land” are 
involved. Not only do these defendants not have the 
right to compel someone else to associate with them, 
or give them service, or allow them on their property, 
they further have no right to go upon another individ­
ual’s property to engage in a demonstration sup­
porting their particular belief no matter what that 
belief might be.

The defendants, in their brief, submit similar 
arguments to attempt to bring these arrests and con­
victions within the ambit of the Fourteenth Amend­
ment prohibition against “state discrimination”. In



52

support thereof they cite the same cases cited in their 
Application for Writs, which cases, we have previously 
discussed in our Brief in Opposition. Here, again de­
fendants rely primarily on the case of Marsh v. 
Alabama 326 U. S. 501, which we again respectfully 
submit, is inapplicable to the instant cases. Even if 
these cases are viewed from the standpoint suggested 
by defendants, with which we disagree, the Marsh case 
can only support facts identical to the facts before 
the court in that case. This is apparent because the 
court before upholding the defendant’s right to es­
pouse his personal views on what was otherwise pri­
vate property, first felt constrained to find that the 
property involved had become public in nature. 
Therefore, the Marsh case can not be cited as author­
ity for the defendants’ position until, and unless 
this court declares, as a matter of law that the pro­
perty of all persons engaged in every type of business, 
no matter how large or how small, has become public 
in nature.

We can only assume from the Goverment’s 
argument that this rule of law which they urge would 
only apply in states which have previously adopted 
segregation laws and would not apply in states which 
have not had segregation laws.
In other words, this argument, boiled down to its 
essentials, is apparently this:

That although a citizen of Montana may pri­
vately discriminate and choose with whom he 
will, or will not, associate, a citizen of the State 
of Louisiana does not have such right.



53

and
That although a citizen of Louisiana may not pri­
vately discriminate, and associate, or not associ­
ate, with whom he chooses while he is within the 
boundaries of the State of Louisiana, he may do 
so if he moves to the State of Nebraska.

and
That although a citizen of the State of Nevada 
may privately discriminate, and associate or not 
associate, with whom he chooses while he is with­
in the boundaries of the State of Nevada, he can­
not do so while he is within the boundaries of the 
State of Louisiana.
In other words, defendants and the government, 

would have this court apply Federal lawT and Consti­
tutional principals to the citizens of some of the states, 
primarily the Southern states, but not to the citizens 
of the other States of the Union. Not only is there no 
authority for such a contention, but such a result 
would be directly in the teeth of Section 2, Article 4, 
of the United States Constitution, which provides 
th a t:

“The citizens of each state shall be entitled 
to all the privileges and immunities of citizens of 
the several states.”

IV.

T he decision below  does not deprive defendan ts h e re ­
in of the  freedom  of speech or of expression contem ­
p la ted  and  pro tected  by the  F irst and  F ourteen th  
A m endm ent to the  C onstitu tion of the  U nited  States.

Defendants again urge their contention that their



54

arrest and conviction in these cases deprives them of 
the right of freedom of speech and expression guaran­
teed by the First and Fourteenth Amendments to the 
United States Constitution. This contention, still 
maintained by defendants, is an admission in itself 
that their real purpose in being on the private pro­
perty of the individual owners was not for normal 
business reasons but was actually, and in truth, for 
the purpose of expressing themselves, demonstrating, 
or, in their own words, engaging in “activity” to 
“protest segregation”, or, to “in protest of the segre­
gation laws of the State of Louisiana, . . . ’sit 
in’ a cafe counter seat . . . (R, Briscoe 8; R. Gar­
ner 7, 8; R. Hoston 7). However, in support of this 
proposition, defendants merely reiterate the cases 
cited in their Application for Writs, and do not cite 
a single case or other authority which stands for the 
proposition that any individual has the right to freely 
express himself on whatever subject he might desire 
on the private property of other individuals, and over 
that owner’s objection.

Although we have cited cases which clearly stand 
for the proposition that the right to freedom of 
speech and expression may be limited in certain 
times, places, and under certain circumstances, or 
that “the hours and places of public discussion can be 
controlled”, Feiner v. New York 340 U.S. 315; Kovacs 
v. Cooper, 336 U.S. 77, 93 L. Ed. 513, 10 ALR 2nd 
608; and Schenck v. United States, 249 U.S. 47, 
63 L. Ed. 470, 39 Sup. Ct. 247, we actually do not 
need to rely on these cases for defendants contention



55

to fall. For, defendants have, at no time, cited a single 
Constitutional provision or case which extends the 
First Amendment protected right to freely speak or 
express oneself to the private property of another in­
dividual, over his objection. In fact, no clearer refuta­
tion of defendants’ contention could be had than from 
reference to the fact that on the third day of these 
three days of demonstrations, the defendants’ right 
to freedom of speech and expression was not only not 
denied them, but was actually 'protected by local police 
officers in protecting them, and other members of 
their race, while picketing, marching the length of the 
main street of Baton Rouge, and assembling on the 
steps of the State Capitol, and by preventing other 
persons, who no doubt objected to defendants’ pur­
poses, from interfering therewith.

V.
The facts and  circum stances of the  Briscoe case do 
not b ring  it w ith in  the  p rohib ition  of the  In tersta te  

Com m erce Act.

For the first time, throughout the history of these 
cases, the question is raised by the government’s brief, 
at page 46 thereof, as to whether these arrests and 
convictions violated section 216 (d) of part two of 
the Interstate Commerce Act, 49 U.S.C. 316 (d), and 
then only with respect to the Briscoe case. The portion 
of the Interstate Commerce Act relied upon by the 
government, insofar as its application to the Briscoe 
case is concerned, reads in part as follows:

“. . . . it shall be unlawful for any common



56

carrier by motor vehicle engaged in interstate 
or foreign commerce to make, give, or cause any 
undue or unreasonable preference or advantage 
to any particular person, port, gateway, localty, 
region, district, territory, or description of traffic, 
in any respect whatsoever; or to subject any par­
ticular person, fort, gateway, locality, region, 
district, territory, or description of traffic to any 
unjust discrimination or any undue or unreason­
able prejudice or disadvantage in any respect 
whatsoever; . . . (emphasis added)
It seems plainly obvious from reading the statute 

cited that it does not apply to the facts in the Briscoe 
case. In the first place, there is nothing in the quoted 
act which gives any person the right to engage in a 
demonstration on the property of another, including 
an interstate commerce carrier. These defendants, just 
like the defendants in the other cases, were engaged 
in an unlawful demonstration on private property 
which demonstration was likely to disturb the peace, 
order, and tranquility of the community; they were 
asked to leave and refused; police officers, in carrying 
out their duty and responsibility in maintaining the 
peace and order of the community requested the de­
fendants to leave and they again refused; then and 
only then were they arrested. No where in the record, 
in the government’s brief, or otherwise, is there any 
evidence, or even statements, that the Greyhound bus 
lines, the only interstate common carrier which could 
be involved, discriminated against these defendants 
in any manner whatsoever.

Furthermore, not one of these defendants was



5 7

a passenger in interstate commerce. The government, 
in its brief, refers to the words “any particular per­
son” as used in the act and concludes that the act 
covered all persons who might enter the station of 
an Interstate Commerce Carrier for whatever purpose 
and regardless of the fact that they were not passen­
gers in interstate commerce. However, the term “any 
particular person” as used in the Interstate Commerce 
Act (an act regulating interstate traffic) must obvious­
ly refer to the other words in the act, “or description 
of traffic”. That this is true is shown by the use of 
the disjunctive “or” before “description of traffic”. 
In other words, the word “traffic” relates back and 
applies to all of the preceding words including the 
word “description” as well as the word “person”. 
Furthermore, although there is no evidence in the 
record either way, as a matter of fact, the restaurant, 
or lunch counter, portion of the building in which 
these demonstrations took place, is not owned by the 
interstate commerce carrier, Greyhound bus lines. That 
portion of the building, the restaurant, is leased to 
a different corporation which is not under the con­
trol or direction of the interstate commerce carrier.

The only case cited by the government in support 
of this contention is the case of Boynton v. Virginia, 
364 U.S. 454 which is not applicable to the Briscoe 
case because it involved a person traveling in inter­
state commerce, whereas these persons were not so 
doing; and it did not involve persons engaged in un­
lawful demonstrations on private property as is the 
case here. We respectfully submit that the dissent in



5 8

the Boynton case by Mr. Justice Whitaker, with whom 
Mr. Justice Clark joined, was not only correct, but 
is particularly applicable to the Briscoe case. As Mr. 
Justice Whitaker said, “. . . . there is no evidence 
even tending to show that the restaurant was oper­
ated or controlled by any carrier, directly or indirect­
ly.” And further on in the dissent, it was said “to me, 
it seems, that Congress, in Section 203 (a) (19), hardly 
meant to include a private restaurant neither owned, 
operated or controlled by a carrier.” We would fur­
ther submit that neither was it intended to apply to 
persons not traveling in interstate commerce as Con­
gressional jurisdiction is obtained only through the 
Interstate Commerce Clause of the Constitution, and 
only over persons either engaged in interstate com­
merce or traveling in interstate commerce. In fact, as 
noted above, the language of the statute itself excludes 
persons not traveling in interstate commerce. Further­
more, we also respectfully submit, in line with the 
dissent, that the act was never intended to apply to 
persons engaged in unlawful demonstrations on pri­
vate property regardless of whether in interstate com­
merce or not.

As the committee of the Bill of Rights of the 
Association of the Bar of the City of New York has 
seen fit to file a Brief, Amicus Curiae, in these cases 
we would discuss briefly the one contention raised 
therein, that these arrests and convictions constitute 
state action which is prohibited by the Fourteenth



59

Amendment. As will be seen from their “motion for 
leave to file brief amicus curiae/’ commencing on page 
1 of their brief, their brief is submitted solely in sup­
port of the proposition that these cases amount to 
state action to enforce private discrimination and 
they rely almost entirely on the rule laid down in 
Shelly v. Kraemer, 334, U.S. 1 in support of this 
argument. We declined to consent to the filing of the 
brief for the reason that this particular point had been 
adequately covered by the defendants, as set forth 
in the rules of this Honorable Court, and we still op­
pose the filing of this Brief Amicus Curiae on that 
ground. However, because of one statement made on 
page 7 of their brief, we will discuss their argument 
briefly. In the last paragraph on page 7 of their brief, 
they make the following statement:

“Reversal of the conviction 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 persua­
sion and pressure, while affirmance would re­
sult in continued reliance upon police and court 
action to perpetuate discrimination in places 
open to the public.”

Nothing could be farther from the truth. In fact, 
the exact opposite of that statement would actually 
hold true. If these decisions are affirmed, the private 
parties to the dispute over segregation at the lunch 
counters may then work out a resolution of their 
differences by lawful means of persuasion as that 
phrase is usually contemplated. Then, and only then,



60

can the “private parties” get together to discuss 
their differences in a peaceful manner “across the 
table” and attempt to resolve their differences. The 
term “persuasion” usually contemplates peaceful ar­
gument and discussion and a convincing thereby of one 
person to accede to the request of the other. Such is 
not the method that these defendants have utilized 
so far. And furthermore, if these decisions are re­
versed, it can be logically expected that these de­
fendants, and others similarly situated, will once 
again commence this unlawful harassment of private 
business establishments and will perhaps, under the 
cloak of such decision, speed up and increase their 
already well organized and militant program of har­
assing demonstrations on the private property of 
other individuals. In the interest of better relations 
between the races; in the interest of reasonableness, 
peacefulness and courteousness; in the interest of the 
rights of all parties concerned— the shop owner, the 
demonstrator, the general public; the instant cases 
must be affirmed.

In relying upon the Shelly case, the Commit­
tee ignores one very important factual difference 
between it and the case at bar. The Shelly case in­
volves court enforcement of private covenants estab­
lished by one private property owner on his property 
so as to affect other individuals in the future, long 
after the original owner had passed out of the picture. 
Specifically, in the Shelly case, you had two indi­
viduals, one who had agreed to buy and one who had 
agreed to sell, who are being prevented from carry-



61

ing out their voluntary agreement by a third person 
who no longer had any connection with the property 
involved. And although the court held illegal the is­
suance of an injunction to prevent the completion of 
the voluntary sale, it reaffirmed the principle of law 
that has never been changed by any case that,

“that amendment erects no shield against mere­
ly private conduct, however discriminatory or 
wrongful. We conclude, therefore, that the re­
strictive agreement standing alone can not be
regarded as violative of any right guaranteed 
to petitioners by the Fourteenth Amendment.. . . ”

In the cases before the court we have no voluntary 
or willing agreement between a buyer on the one 
hand and a seller on the other. To the contrary, we 
have an owner of merchandise, who does not wish 
to sell, or does not wish to sell a part of his merchan­
dise, to these alleged willing buyers. Not even a 
strained interpretation of the Shelly case could 
stand for the proposition that one individual who 
wants to buy can compel the seller to sell regardless 
of his desire not to sell.

The Committee then relies on the case of Marsh 
v. Alabama, 326 U.S. 501, discussed heretofore, in 
support of their request that this Court declare all 
private property, or at least all private property on 
which a business is being conducted, to be so public 
in nature that the private owner thereof cannot refuse 
admission thereto, or service therefrom, to anyone 
he chooses, for whatever reason he chooses. I can



62

only conclude from their brief, that they would have 
such ruling apply to all businesses, regardless of how 
large or how small, including the corner drug store, 
the corner grocery store, the man with the hot tamale 
cart, and the child selling lemonade at two cents a 
glass. Not only is such a contention not supported 
by the Constitution or the prior jurisprudence of 
this Honorable Court, but such a ruling is in itself 
inherently dangerous. It would subject private busi­
ness to public regulation by any and all public agen­
cies whether State, Local, or Federal, in all phases 
of its affairs, and to an extent that was never contem­
plated by the founders of our Nation! Such a ruling 
would put all private business, regardless of how large 
or small, in the same position as public utilities and 
subject them to complete governmental control which 
is the exact opposite of what our system of govern­
ment and our system of economy stand for.



63

CONCLUSION

For the reasons stated, it is respectfully submitted 
that the judgments of the court below should be 
affirmed.

SARGENT PITCHER, JR.
District Attorney 
19th Judicial District 
Baton Rouge, Louisiana

JOHN F. WARD, JR.
Assistant District Attorney 
19th Judicial District 
Baton Rouge, Louisiana

JACK P. F. GREMILLION
Attorney General 
State of Louisiana 
Baton Rouge, Louisiana

N. CLEBURN DALTON
Assistant Attorney General 
State of Louisiana 
Baton Rouge, Louisiana

Attorneys for Respondent



64

PR O O F O F SERVICE

I, John F. Ward, Jr., one of the Attorneys for 
the State of Louisiana, respondent herein, certify that
on the_____ day of October, 1961, I served copies of
the foregoing Brief of the State of Louisiana, by 
mailing the required number of copies, postage pre­
paid, to Counsel of Record for Petitioners, at the 
following addresses: A. P. Tureaud, 1821 Orleans 
Avenue, New Orleans, Louisiana; Johnnie A. Jones, 
530 South 13th Street, Baton Rouge, Louisiana; Thur- 
good Marshall and Jack Greenberg, 10 Columbus 
Circle, New York 19, New York; Solicitor General, 
Department of Justice, Washington 25, D.C., and 
William A. Delano, 42 West 44th Street, New York 
36, New York.

JOHN F. WARD, JR. 
Counsel of Record 

for Respondent
Sworn to and subscribed before me, the under­

signed Notary Public, within and for the Parish of
East Baton Rouge, State of Louisiana, this_____ day
of October, 1961.

NOTARY PUBLIC

2601 -B, 10-61