Lombard v. Louisiana Brief for Petitioners

    IN' THE

Cmut nf tfrr llxxxtth States
October Term, 1962

No. 58

RUDOLPH LOMBARD, et al.,
Petitioners,

vs.

LOUISIANA,
Respondent,

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
THE STATE OF LOUISIANA

BRIEF FOR PETITIONERS

Gael R achlin,
280 Broadway,
New York 7, N. Y.,

J ohn P. Nelson,
535 Gravier Street, 
New Orleans, La.,

J udith P. V ladeck, 
R obert F. Collins,
Nils R. D ouglas,
Janet M. R iley, 
Charles Oldham,

of Counsel.

L olis E. E lie,
2211 Dryades Street, 
New Orleans, La., 

Attorneys for P etition ers .



I N D E X

PAGE

Opinion Below .........................................    1

J urisdiction ...................................................... — ............... ..... 2

Questions P resented.............................   2

S tatutory and Constitutional P rovisions Involved ...... 3

Statement

A. Facts ..............................................................................  3

B. Actions B e low .......................................    5

Summary oe A rgument .......................................................  6

Argument

P oint I— State action has denied petitioners equal 
protection under the law through the acts of the 
manager of M cCrory’s, the police, the prosecutors, 
and the courts, and through the mayor, the legisla­
ture and custom .............................................................. 8

A. The Principle of Shelley v. Kraemer applies in
this case ....................................................................  8

B. The State Actively Intervened Herein, in That
It Encouraged and Adopted Unto Itself the 
Acts of Discrimination D escribed ........................  9

C. Louisiana Avoided the Obligation of a State
to Preserve Impartial Administration of Law 12

P oint II— Evidence adduced at the trial was not such 
as to sustain a conviction under the United States 
Constitution ........................................................................  13

P oint III— The use of the public force to protect 
property is limited by the equal protection clause 
o f the Fourteenth Amendment ..................................... 16



11 I N D E X

PAGE
P oint IV—The Constitutional right of petitioners 

freely to assert opposition to segregation is a right 
that should have been protected by the State in 
the case at b a r ........... ..................................................  20

P oint V—Restaurants are a business affected with a 
public interest wherein segregation may not be en­
forced ............................................................................  23

P oint VI—Refusal by trial judge to admit evidence 
to establish actual concert between McCrory’s and 
the police violated petitioners’ right to a fair and 
impartial trial as guaranteed by the Fourteenth 
Amendment ..................................................................  24

Conclusion ..................................................... ........................  25

A u t h o r it ie s  C ited  

Cases:

Burton v. Wilmington Parking Authority, 365 U. S.
721 (1961) ....................................................................  15,17

Civil Rights Cases, 109 U. S. 3 (1883).............................8, 25

Garner v. Louisiana, 368 U. S. 157 (1961) .................  11, 23

Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952) ...  20

Marsh v. Alabama, 326 U. S. 501 (1946) ...................  23, 24

Schenck v. U. S., 249 IT. S. 47 (1919) ............................. 22
Schneider v. State, 308 U. S. 147 (1939) .............  20,21,22
Sellers v. Johnson, 163 F. 2d 877 (CCA 8th, 1947), 

cert. den. 332 U. S. 851 (1948) ......................................  21



PAGE

Shelley v. Kraemer, 334 U. S. 1 (1948) ... 8, 9,12,13,17,18,19 

State v. Goldfinch, 241 La. 958,132 So. 2d 860.................  1

Thomas v. Collins, 323 IT. S. 516 (1944) .....................  21, 22
Thornhill v. Alabama, 310 U. S. 88 (1940) ...................  201, 21

W. Va. State Bd. of Education v. Barnette, 319 IT. S.
624 (1943) ........................................................................  21

Yicli Wo v. Hopkins, 118 U. S. 356 (1886) .......................  15

Statutes:

28 TJ. S. C. §1257 (3) ..........................................................  2
L. S. A.-R. S. 14:59(6) ............................................ 3, 4,16, 21

La. R. S. 40:32, 35 ......................................................... ....  23
La. R. S. 47:353, 362 ..........................................................  23

Ordinances:

New Orleans City Code, 1956, §29-55, 56 ......................... 23

Miscellaneous:

Holmes, T he Common L a w .......................................... 16,17
M. R. Cohen, L aw and the Social Order.....................16,17

I N D E X  111



IN  THE

Huprattp (Emtrt nf tip llnxteb States
October Term, 1962

No. 58

------------- +------------ -

R udolph L ombard, et al.,

vs.
Petitioners,

L ouisiana,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
THE STATE OF LOUISIANA
------------- 4.-------------

BRIEF FOR PETITIONERS

Opinion Below

The opinion of the Supreme Court of Louisiana is re­
ported at 241 La. 958, 132 So. 2d 860, under the name of 
State v. Goldfinch, et al. The judgment of the Criminal 
District Court, Parish of Orleans, overruling the peti­
tioners’ motion to quash is in the printed transcript at page 
28. No written or oral reasons were given by the trial judge 
when he found the defendants guilty.



2

Jurisdiction

The judgment of the Supreme Court of Louisiana was 
entered on June 29, 1961. Rehearing was refused on Oc­
tober 4, 1961. The petition for a writ of certiorari was 
filed on December 29, 1961, and was granted on June 25, 
1962. The jurisdiction of this Court rests on 28 U. S. C. 
§1257(3), petitioners claiming rights, privileges and immu­
nities under the Fourteenth Amendment to the Constitution 
of the United States.

Questions Presented

1. Whether petitioners were deprived, because of vari­
ous acts of the state described below, of equal protection of 
the laws guaranteed by the fourteenth amendment.

2. Whether the conviction of petitioners herein violated 
due process.

3. Whether the decision of the Supreme Court of 
Louisiana as to the Louisiana statute should be reversed 
and the conviction of petitioners be set aside.

4. Whether the conviction of petitioners herein denied 
them the guarantees of free speech provided in the four­
teenth and first amendments.

5. Whether the right of a private property holder to 
call upon the public force is limited by the fourteenth 
amendment.



3

Statutory and Constitutional Provisions Involved

1. The Fourteenth Amendment to the Constitution of 
the United States.

2. The Louisiana statutory provision involved is LSA- 
R.S. 14:59 (6):

‘ ‘ Criminal mischief is the intentional performance 
of any of the following acts: * * *
“ (6) taking temporary possession of any part ox- 
parts of a place of business, or remaining in a 
place of business after the person in charge of 
said business or portion of such business has 
ordered such person to leave the premises and to 
desist from the temporary possession of any part 
or parts of such business.
“ Whoever commits the crime of criminal mischief 
shall be fined not more than five hundred dollars, 
or imprisoned for not more than one year, or 
both.”

Statement
A : Facts:

On September 17, 1960, the petitioners, three Negroes 
and one white, in an orderly and quiet manner (R. 105,108), 
at approximately 10:30 a.m., requested that they be served 
at a refreshment bar hitherto reserved for whites in 
McCrory’s Five and Ten Cent Store, New Ox-leans, Louisi­
ana. Because three were Negroes, all were refused service 
at the bar (R. 105,113).

The continued presence at the “ white”  couxxter of the 
petitioners, after being informed that there was a “ colored”  
counter (R. I l l )  was considered by Mr. Graves, restaurant 
manager, as an “ unusual circumstance”  (R. 105), or an



4

“ emergency”  (R. 105, 106); lienee he ordered the counter 
closed down (R. 105) and called the police (R. 106). At no 
time did he ask petitioners to leave the store (R. 135, 136, 
137).

After the police arrived on the scene, Captain Lucien 
Cutrera of the New Orleans Police Department advised 
Mr. Wendell Barrett, the store manager, to tell the peti­
tioners in his presence that the department was closed and 
to request them to leave the department; Barrett followed 
the Captain’s advice (R. 113, 126). When they did not 
answer or comply with the request, Major Edward Reuther, 
of the New Orleans Police Department, ordered petitioners 
to leave the store within one minute (R. 129).

Reuther testified that first he interrogated the petition­
ers as to the reason for their presence, and asked “ who 
was the leader!” . After being told that they were going to 
sit there until they were served (R. 116), the petitioners 
were placed under arrest (R. 129), charged and convicted 
under LSA-R.S. 14:59 (6). They were each sentenced to 
pay a fine of $350.00 and to imprisonment in Parish Prison 
for sixty days and upon default of the payment of fine to 
imprisonment for an additional sixty days.

McCrory’s is made up of approximately twenty de­
partments (R. 120) and open to the general public (R. 19). 
Included in its services to the public are eating facilities 
composed of a main restaurant that seats 210, a counter 
that seats 53, a refreshment bar that seats 24 and two stand- 
up counters (R. 104). All of the eating facilities are segre­
gated. There are no signs indicating whether service at any 
particular counter is limited to either Negro or white (R. 
110) .



5

The store’s segregation policy is determined by local 
tradition, law and custom, as interpreted by the manager 
(R. 21). The manager, Mr. Barrett, testified that his deci­
sions relative to segregated lunch counters within the store 
conform to state policy, practice and custom (R. 25).

One week prior to the arrests herein, the Superintendent 
of Police of New Orleans stated that his department would 
“ take prompt and effective action”  against persons in­
volved in any such activity as described above (R. 139- 
140).

Pour days before petitioners were arrested, the Mayor 
of the City of New Orleans made known that he had in­
structed the Superintendent of Police that no such acts 
would “ be permitted” , and directed that they be prohibited 
by the police department (R. 138-139).

B. The Actions Below:

The case was prosecuted in the Criminal District Court 
for the Parish of Orleans.

Upon the trial, of the five witnesses for the prosecution, 
three were police officers. The Court refused to permit 
introduction of testimony, however, as to the cooperation 
of the store officials and the police officers (R. 23, 24, 127).

At the conclusion of the trial petitioners were found 
guilty and sentenced ; no opinion was filed.

Motions for a new trial were made and denied. The 
matter was appealed to the Supreme Court of Louisiana, 
where the convictions were affirmed and rehearing denied. 
Application for stay of execution for sixty (60) days was 
granted by the Chief Justice of the Louisiana Supreme 
Court on October 6, 1961.



6

Summary of Argument

I. Petitioners, three Negroes and one white, were ar­
rested and convicted of the crime of “ criminal mischief”  
by the State of Louisiana for participating in a protest 
against discriminatory treatment by retail establishments 
which permitted Negroes to spend their money freely at all 
but the “ white”  lunch counters. The arrests followed 
efforts of petitioners to obtain service at the white counter 
and their refusal to move to the food counter reserved for 
Negroes.

The officials of the City of New Orleans, the police of 
that City and the Courts, all cooperated in an effort to con­
vert a lawful act into a crime. Whatever their avowed pur­
pose, their intent was clear—to perpetuate the local custom 
of segregation of Negroes.

As a result of the involvement of the state, through its 
various agencies, it is clear that there is no validity in a 
claim that the state merely acted in aid of a private prop­
erty owner in the protection of his property rights.

II. It is urged that this Court reverse the decision of 
the Courts below. The opinion of the (Supreme Court of 
Louisiana is based upon an unconstitutional interpretation 
of the statute which formed the basis for the charges 
against petitioners. By its decision, the Supreme Court of 
Louisiana imputed to the Legislature of Louisiana state 
support and encouragement for acts of improper discrimi­
nation. Nothing in the statute warrants such an interpre­
tation. Since it has been read into the statute by the Courts 
below, and since no evidence upon which petitioners could 
have been convicted under a reading of the statute con­



7

sistent with the Constitution of the United States was ad­
duced at the trial, the decision must be reversed.

III. The public force was called herein, presumably 
in aid of a private property right. The Courts below erred 
in not finding that such public force had been used to an 
extent not permissible under the Fourteenth Amendment. 
While property rights are created and enforced by the 
State, protection of property interests by the State may 
not be for a purpose in violation of the equal protection 
clause.

IV. The acts of petitioners, peaceful, but meaningful, 
were an act of silent speech, a protest against segregation 
of Negroes.

Petitioners were protesting on property open to the 
public. Since they were in no way disorderly, the arrests 
by the police constituted an improper inhibition upon 
speech in violation of the Fourteenth and First Amend­
ments.

V. Under Louisiana law, restaurants are a business 
requiring a license and thus are affected with a public inter­
est. At no time were petitioners disorderly; admittedly, the 
only act from which their arrests stemmed was a refusal 
to move on to the Negro counter. In businesses affected 
with such a public purpose, although they are labelled 
“ private property”  it is improper for the state to enforce 
segregation of Negroes.

VI. Petitioners endeavored, upon trial, to offer testi­
mony showing the concert of action between the store pro­
prietor and public officials in Louisiana. Such testimony 
would have tended to show direct state participation in the 
acts of discrimination. That testimony was refused by the 
Court, thus denying due process of law to petitioners.



8

ARGUMENT 

P O I N T  I

State action has denied petitioners equal protection 
under the law through the acts of the manager of Mc- 
Crory’s, the police, the prosecutors, and the courts, and 
through the mayor, the legislature and custom.

A. The Principle o f Shelley v. Kraemer applies in this case.

The law as enunciated in Shelley v. Kraemer, 334 U. S. 
1, is applicable to the case at bar.

In that case the aid of the Missouri and Michigan 
courts was sought to enforce a restrictive covenant dis­
criminating against Negroes. In its opinion, judicial func­
tions were described as action of the state by this Court; 
accordingly, the interventions by the state courts upholding 
such covenants through injunctive relief were set aside as 
being a denial of equal protection of the laws.

As in Shelley, in the case at bar, the assistance of the 
state has been sought to maintain a whites only policy and 
to prevent Negroes from receiving equal treatment.

Affirmed in the Shelley case, supra, was the view ex­
pressed in the Civil Rights Cases 109 U. S. 3, that private 
acts of discrimination were not inhibited by the Fourteenth 
Amendment, the Court specifically saying that voluntary 
adherence to the restrictive covenants did not violate the 
Fourteenth Amendment. But the intervention of the state 
judiciary was sufficiently the act of the state to set aside 
enforcement of the covenant relied upon its purported bene­
ficiaries.



9

As applied to the case at bar the voluntary adherence 
doctrine referred to in the Shelley case, would presumably 
be limited to the act of McCrory’s in setting up its discrimi­
natory pattern of food service, and asking its customers, 
in effect, to accept this pattern.

But such are not the facts before us. As in Shelley, the 
assistance of the state has been sought to maintain a whites 
only policy and to prevent Negroes from receiving equal 
service, a policy announced, fostered and protected by the 
state. The concern is not with the right of McCrory’s to set 
up voluntarily a whites only counter; it is with the state 
participation in its maintenance, and in forcing the public 
to accept the pattern.

That the seeker of legal relief in Shelley was, in a cer­
tain sense, a stranger to the immediate sale and purchase 
of land, whereas before us, the owner of the facility, Mc­
Crory’s, sought the relief, is of little moment. In each case 
the aid of the state was sought; in fact, as the record 
demonstrates, the state participation was greater in the 
case before us than in Shelley v. Kraemer. It is the action 
of the State in support of private discrimination which 
makes for the violation of the Fourteenth Amendment and 
not the name or character of the litigants involved. We 
submit that state action to deny due process and equal 
protection was present in the instant case in several forms.

B. The State A ctively Intervened Herein, in That It
Encouraged and Adopted Unto Itself the Acts o f
Discrimination Described.

(1) One week prior to the arrests herein, the Superin­
tendent of Police of New Orleans, and four days prior 
thereto, the Mayor of New Orleans, each made clear the



10

intention of the City of New Orleans to protect acts of dis­
crimination against Negroes.* In fact the Mayor went so far 
as to give instrnctions to arrest persons who peacefully 
sought, and hopefully awaited, service at retail stores (R. 
138). At the trial, petitioner sought to introduce evidence 
concerning the nature of the interaction and cooperation 
between these public officials and the retail store owners, 
particularly McCrory’s. The Court refused to admit tes­
timony on this point (R, 23-27, 127).

While voluntary private adherence to a discriminatory 
pattern may not be violative of the Fourteenth Amendment, 
the act of the state, through the New Orleans officials, in 
advising storekeepers in advance that the Police would not 
permit peaceful acts such as were engaged in by petitioners, 
we urge is such a violation. The City tells such store owners 
that they should seek the assistance of the police in main­
taining inequality; this thereby becomes not a matter be­
tween private parties. Both during and immediately before 
the acts of the petitioners, the full weight of the state was 
invoked in favor of discriminatory treatment of Negroes.

Had not the public authorities expressed themselves and 
intervened, what action McCrory’s would have taken is 
speculative; but not unreasonably, so ; one of the possibili­
ties, because of the peaceful nature of the acts of peti­
tioners involved, is that no call to the police would have 
been made, and accordingly, no arrests made.

* These statements conformed to official state policy as expressed 
in Louisiana Act 630 of 1960, which in its preamble states:

“ Whereas, Louisiana has always maintained a policy of 
segregation of the races, and

Whereas, it is the intention of the citizens of the sovereign 
state that such a policy be continued.”



11

As Mr. Justice Frankfurter said in Ms concurring opin­
ion in Garner v. Louisiana, 368 U. S. 157 “ It is not fanciful 
speculation, however, that a proprietor who invites trade in 
most parts of his establishment and restricts it in another 
may change his policy when non-violently ehalleng-ed. ” *

(2) When petitioners sought service at the white 
counter, the counter immediately was closed and the police 
called. Shortly thereafter, various policemen arrived and 
advised the store manager, “ That we must witness his 
statement to them that he didn’t want them in the place”  
(E. 125-126). The manager was thus instructed by the 
police to order petitioners away in their presence.

The police were called to assist and enforce McCrory’s 
efforts to maintain segregation in food service (it is to be 
remembered that the practice related only to food service, 
and not other departments of the store). The police insisted 
on being official witnesses; after hearing the manager order 
petitioner to leave the department (R. 113), the police then 
ordered them from the store (E. 123). Thus not only wTere 
the New Orleans Police official witnesses to a private act 
of discrimination, but, in fact, became, by their direct inter­
vention and order to petitioners to leave the store, principal 
parties to an act of discrimination. This was followed by 
the arrest of petitioners and the charge of violation of the 
criminal statute referred to placed against them.

(3) The prosecution of the case against petitioners was 
conducted under the aegis of the District Attorney of the 
Parish of Orleans.

* The accuracy of this position is borne out by fact. The New 
York Times, Sept. 13, 1962, on p. 41 reported that McCrory’s, among 
other New Orleans retail establishments, desegregated its lunch 
counters.



12

(4) While the hearing of the ease by the Court, of 
course, does not throw the weight of the state behind the 
acts denying equal protection of the law to petitioners, the 
conviction by the judge, sitting without a jury, no less than 
the injunction in Shelley v. Kraemer, supra, becomes the 
act of the state. Incarceration in a jail maintained by 
Louisiana (which awaits petitioners if their conviction 
should be affirmed by this Court) is similarly no less an act 
of the state than the injunction in the Shelley case. The 
power to punish is the ultimate expression of state inter­
vention.

C. Louisiana A voided the Obligation o f  a State to
Preserve Impartial Administration o f  Law.

While it may be true, as the Court below asserts, that 
without the will of the proprietor the state “ can find no 
basis under the statute to prosecute” , it is no less true that 
without the state to advise the proprietor, to arrest, to 
prosecute, to judge and finally to incarcerate petitioners the 
so-called “ will”  of the proprietor might not have been made 
known overtly in any fashion. It is also suggested that 
without the actions of the state, this so-called “ will” , de­
scribed by the Court below, may reasonably have been non­
existent; the problem for which petitioners presently seek 
relief from this Court would also be non-existent.

We urge that it is specious to suggest that in the case 
at bar the state is playing the role of a referee in a battle 
between private litigants. No disorder occurred warrant­
ing the intervention of the state. By its intervention, the 
state prevented a negotiated, or freely arrived at con­
tractual solution of the problem. It is not far fetched to 
say that the offer to purchase made by petitioners to



13

McCrory’s might eventually have been accepted if the state 
had not acted to prevent just such an acceptance.

Whether that would have occurred in this ease is not 
known, hut clearly, intervention by the state prevented a 
peaceful solution, and made impossible a freely arrived at 
agreement in support of social progress. The acts of the 
state not only inhibited a peaceful concurrence but actually 
were in aid of social disintegration.

To pretend that the state was, as Louisiana has sug­
gested, a neutral party in this matter is either to indulge in 
fantasy, or to attempt to create an air of subterfuge through 
which the “ game”  of segregation is still “ played”  even 
though the characters wear slightly different masks. The 
proprietor of the store plays only a small role in this 
charade; the main parts belong to the State. In any event 
the victim is the same and same jail is used.

For all the reasons we have urged, we respectfully sug­
gest that the doctrines enunciated in Shelley v. Kraemer 
are directly applicable to this proceeding and the convic­
tions should accordingly be reversed and set aside.

P O I N T  I I

Evidence adduced at the trial was not such as to sus­
tain a conviction under the United States Constitution.

This Court has historically sought to find interpretations 
which uphold the constitutionality of statutes. We suggest 
that the Court below in affirming the convictions of peti­
tioners, so read the statute involved here as to require that 
it be found unconstitutional. For, in affirming the convic­
tions the Supreme Court of Louisiana implicitly deter­



14

mined that the legislature authorized in advance and sup­
ported, private acts of discrimination.

The Louisiana statute is entitled “ Criminal Mischief.”  
In applying the facts of the instant case to that statute, it 
is patent from the record that no criminal mischief was in 
fact involved; petitioners were quiet and orderly, no evi­
dence of any disorder by them or any others in the premises 
was even offered. Solely because three of the petitioners 
were Negroes, a lunch counter, maintained by the MeCrory 
chain, was closed at an unusual time so as to avoid serving 
petitioners at a “ whites only”  counter. No reason was 
given for this action by the MeCrory store other than the 
skin color of some of petitioners.

No reference appears in a reading of the statute, as the 
Court below noted, to support segregation violative of the 
Constitution; accordingly none should be assumed. But, 
the interpretation of the lower Courts, say, in effect, that 
the Louisiana Legislature authorized acts which were be­
yond its competence under the Fourteenth Amendment, 
namely the commission of acts of discrimination against 
negroes.

If the state cannot commit acts of discrimination under 
the equal protection clause of the Fourteenth Amendment, 
how can it then authorize by statute the commission of such 
acts? We are not concerned here with a mere private right 
of private persons, but an affirmative act of legislation 
which the Court below would have us believe authorized the 
acts of discrimination.

Petitioners were arrested at a “ white”  counter. Cer­
tainly, Louisiana could not enact legislation directly making 
criminal the acts of petitioners here; it could not say that



15

negroes had no right to sit at the lunch counter in question. 
The Court below would have us believe, however, that de­
spite this limitation, the Legislature could and did authorize 
and support by criminal penalties a subterfuge to do this 
very act.

This Court has ruled on several occasions that legisla­
tion enacted to maintain segregation is unconstitutional. 
This is so whether it is in a public facility or involves a 
private activity. Burton v. Wilmington Parking Authority, 
365 U. S. 721.

If the Court below is correct, this Court is being urged 
to permit subterfuge to justify and uphold the performance 
of activity which clearly is otherwise illegal. For whether 
by legislation that says ‘ ‘ no negroes may sit at white lunch 
counters” , or by interpreting a statute so as to cause it to 
read as if it said that, the result is exactly the same, seg­
regation is maintained and persons are convicted of com­
mitting a crime, without engaging in any act other than 
sitting peacefully at a lunch counter.

We suggest that the improper interpretation of the 
statute of the Court below requires a setting aside of the 
convictions herein on the grounds that there is nothing in 
the legislation in question which authorized the convictions 
or their affirmance.

The often-quoted language in Tick Wo v. Hopkins, 118 
U. 8. 356, 373, 374 is particularly apropos here:

‘ ‘ Though the law itself be fair on its face and im­
partial in appearance, yet, if it is applied and admin­
istered by public authority with an evil eye and an 
unequal hand so as practically to make unjust and 
illegal discriminations between persons in similar 
circumstances, material to their rights, the denial



16

of equal justice is still within the prohibition of the 
Constitution. This principle of interpretation has 
been sanctioned by this court in Henderson v. Mayor 
etc. of New Tori, 92 U. S. 259 (Bk. 23, L. ed. 543); 
Chy Luny v. Freeman, 92 U. S. 275 (Bk. 23, L. ed. 
550); Ex parte Va. 100 IT. S. 339 (Bk. 25, L. ed. 676); 
Neal v. Delaware, 103 U. S. 370 (Bk. 26, L. ed. 267); 
and Soon Hing v. Crowley (supra).”

La. R. 8. 14:59(6), even if it is constitutional, has been 
arbitrarily, capriciously and discriminatorily applied and 
administered unjustly and illegally, and only against per­
sons of the Negro race or white persons acting with mem­
bers of the Negro race. Such unequal application of the 
law cannot be excused by a pretense that the law, as 
written, does not require unequal treatment.

P O I N T  I I I

The use of the public force to protect property is 
limited by the equal protection clause of the Fourteenth 
Amendment.

The Fourteenth and Fifth Amendments protect private 
property so that it may not be taken without due process 
of law. In them, limitation is set on the exercise of both 
the federal and state power.

Much has been written as to the nature and philosophy 
of property and possession. Justice Oliver Wendell Holmes 
in the chapter on possession in his renowned volume on the 
Common Law and Professor Morris R. Cohen in L aw and 
the Social Order are amongst our finest commentators as 
to the nature of property and its limited uses.



17

Professor Cohen in the essay on property in Law and 
t h e  Social Order discusses property as being a legal right 
granted to an individual to exclude others from its use.

Justice Holmes at page 214 of the 45th edition to the 
Common L aw stated it in these terms. “ A legal right is 
nothing hut a permission to exercise certain natural powers, 
and upon certain conditions to obtain protection, restitution 
or compensation by the aid of the public force. Just so far 
as the aid of the public force is given a man, he has a legal 
right . . . ”

McCrory’s, possessing the legal right to the use of 
property, chose voluntarily to open its property at busy 
Canal and Burgundy Streets to the public for the sale 
of numerous kinds of goods and services. It could have 
excluded, by virtue of its right, all persons from that prop­
erty ; it chose rather to put it to a business use. How it calls 
upon the public force to aid it in effectuating an admitted 
act of discrimination and segregation, an act which if com­
mitted by the state directly would clearly violate the Four­
teenth Amendment. Burton v. Wilmington Parking Au­
thority, supra.

At this point the issue is not whether private acts of 
discrimination violate the Fourteenth Amendment, but 
whether the public force may be used to maintain and sup­
port acts of segregation. Certainly the public force may 
not directly impose segregation and many cases to that 
effect have been decided by this Court. Then wherein lies 
the difference, unless we presume a blind and deaf public 
power.

The Court in Shelley v. Kraemer stated at page 22, 
“ The Constitution confers upon no individual the right to



18

demand action by the State which results in the denial of 
equal protection of the laws to other individuals. And it 
would appear beyond question that the power of the State 
to create and enforce property interests must be exercised 
within the boundaries defined by the Fourteenth Amend­
ment. ’ ’

In this case the issue is not whether McCrory’s must 
or must not serve petitioners, not whether they may or may 
not select clientele, but whether or not they may ask the 
public force to assist them in a refusal to serve persons 
based upon their color. As we perceive it, the issue is not 
the private right of McCrory’s, but the use of the public 
force “ which results in the denial of equal protection of the 
laws to other individuals.”

Justice Holmes stated that the legal right resulting 
from the possession of property bears the related right to 
call upon the public force; but the use of that force is 
limited by the restrictions of the Fourteenth Amendment 
and the equal protection clause. This is a reasonable infer­
ence to be drawn from the statement from Shelley v. 
Kraemer, supra, quoted above.

There is no neutral protection of property rights in such 
a matter as before this Court. We are not concerned with 
the traditional duty of the police to maintain order, to pro­
tect people in their homes or to direct the flow of traffic. 
This property located at Canal and Burgundy Streets in the 
heart of downtown New Orleans was no person’s home, nor 
was there any showing of any public disorder. The only 
untoward act occurred with the closing of the lunch counter 
at 10:30 A. M. by the manager of the department due to the 
presence of Negroes.



19

Pretense, sham and subterfuge do not create respect for 
the law, and do not obtain compliance with the law. To 
pretend the police merely protected a property right, one 
must pretend that no more was involved in the arrest of 
petitioners. Laws must be based on honesty and reality, 
not deception and inequality. Property rights were not the 
subject of protection by the police though the pretense was 
such, but rather the unequal, immoral, degrading institution 
of segregation was the beneficiary of the law’s bounty.

It is no derogation of the right of private property to 
say it cannot call upon the public force to protect it from a 
use in violation of the United States Constitution. In many 
ways the uses of private property are limited. For ex­
ample, zoning ordinances clearly limit the freedom of use 
of property.

In Louisiana, Civil Code Articles expressly limit prop­
erty rights, as for example :

Article 490. Ownership is divided into perfect and 
imperfect. . . .
Article 491. Perfect ownership gives the right to 
use, to enjoy and to dispose of one’s property in the 
most unlimited manner, provided it is not used in 
any way prohibited by laws or ordinances. . . .
Article 667. Although a proprietor may do with his 
estate whatever he pleases, still he can not make any 
work on it, which may deprive his neighbor of the 
liberty of enjoying his own, or which may be the 
cause of any damage to him.

We respectfully urge as the Court stated in Shelley v. 
Kraemer (supra), that a private owner cannot call upon



20

the public force to maintain an inequality in the protection 
of the laws; similarly it is violative of the Fourteenth 
Amendment for the public force to respond in support of 
such improper call. Accordingly, we urge the setting aside 
of the convictions for this reason.

P O I N T  I V

The Constitutional right of petitioners freely to assert 
opposition to segregation is a right that should have 
been protected by the State in the case at bar.

Petitioners’ presence at the lunch counter was a form 
of expression, a means of communication; in the broad 
sense, it was “ speech.”

“ Speech”  protected by the United States Constitution 
includes modes of expression other than by voice or by 
press. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 
Thornhill v. Alabama, 310 U. S. 88, 106.

Petitioners’ act in sitting quietly in a place of business, 
for the purpose of expressing disapproval of a policy of 
racial discrimination practiced there constituted a form of 
speech. As such, it is protected against interference by the 
State.

“ The freedom of speech and of the press secured by the 
First Amendment against abridgment by the United States 
is similarly secured to all persons by the Fourteenth against 
abridgment by a state.”  Schneider v. State, 308 U. S. 147.

When agents of the state (police officers, the District 
Attorney, the District Judge) arrested, charged and tried



21

petitioners under La. R. S. 14:59(6), thereby preventing 
them from continuing their expression of disapproval of 
racial discrimination by the management of the lunch 
counter, the state deprived them of an element of liberty 
guaranteed to them under the Fourteenth Amendment 
against such state action.

Hence, even if it be conceded arguendo that the statute 
might be constitutionally enforced in other circumstances, 
it may not be so when its enforcement limits a form of com­
munication of ideas, as has been done in the present in­
stance. Rather than being arrested for their expression of 
opinion, petitioners had a right to expect police protection 
to preserve order. Sellers v. Johnson, 163 F. 2d 877 (8th 
Cir.) cert, denied, 332 TJ. S. 851.

Complex as our society is, it is inevitable that various 
interests will come into conflict. It is not unusual for this 
Honorable Court to consider a right such as free speech 
weighed against other rights. Schneider v. State, 308 IT. S. 
147; Thomas v. Collins, 323 IT. S. 516.

Freedom of speech was inhibited by the state herein. 
It can hardly be denied that the act of petitioners was an 
act of speech, asserting the right of equality for all citizens, 
black or white. The act of the state in limiting this asser­
tion must be examined by the Court to see what interest of 
the state needed protection to warrant the interference with 
speech. W. Va. State Bel. of Education v. Barnette, 319 
U. S. 624, 639.

There was no imminent danger to the state which re­
quired protection, and which demanded the limitation of 
speech. Thornhill v. Ala., supra. In passing the statute



22

under which, petitioners were charged, there was no sub­
stantive evil threatened requiring the denial of the right 
to peaceful, free assertion or speech. Schenck v. U. S., 
249 U. S. 47.

It has always been the view that rights under the First 
Amendment (and protected from infringement by the state 
under the Fourteenth) are preferred rights, and the usual 
presumption in favor of validity of legislation is not present 
with respect to laws limiting such rights. Thomas v. Collins, 
313 U. S. 516; Schneider v. State, 308 U. S. 147.

No right of the state at all is alleged; at most, merely 
the right to refuse service to Negroes by privately owned 
storekeepers is involved. Not only was no disorder shown 
to have existed, no assertion of any loss to McCrory’s was 
made. Weighed against the peaceful exercise of speech by 
petitioners is an act of discrimination not only immoral in 
itself, but legally de minimis, and almost frivolous as com­
pared with the right of protest against such discrimination.

The state was not presented with a street brawl where 
its duty would be to maintain order neutrally, but rather 
with two assertions of right. However it acted, one right 
or the other had to be subordinated. When such are the 
conditions, the choice must support the highly protected 
Constitutional right of freedom of speech.



23

P O I N T  V

Restaurants are a business affected with a public in­
terest wherein segregation may not be enforced.

In Garner v. Louisiana, 368 U. S. 157, Mr. Justice 
Douglas, in his concurring opinion, pointed out that Louisi­
ana restaurants are required to have a license. La. R. S. 
47:353, 362. Local Boards of Health may provide means 
for public health. La. R. S. 40:32, 35. Ordinances of the 
City of New Orleans include the requirement, that persons 
selling food must have a permit. New Orleans City Code, 
1956, §29-55, 56. Thus the State has more than a casual 
concern in such matters in order to protect the public 
interest.

Whatever the issues are in other businesses, the state 
has shown its special interest in restaurants by licensing 
them. Almost by definition this becomes a business affected 
with a public interest.

“ The more an owner, for his advantage, opens up his 
property for use by the public in general, the more do his 
rights become circumscribed by the statutory and constitu­
tional rights of those who use it (Marsh v. Alabama, 326 
U. S. 501).

With MeCrory’s open to the public in the manner it is, 
we urge that it has become so affected with a public interest 
as to require the application of the Fourteenth Amendment.

Nor can the protections of that Amendment be by­
passed by resort to charging some members of the public 
with trespass when they enter the open doors of such an 
establishment. The concept of trespass in a publicly



24

licensed business operated in the open manner in which this 
store functions is almost self-contradictory.

The absurdity of the idea of trespass by these petitioners 
becomes more apparent when we examine the testimony and 
find that Negroes are welcomed at all counters but the one 
in question.

Since the events herein took place in a publicly licensed 
restaurant opened to the public at large, the acts of dis­
crimination were committed by a business affected with a 
public interest; such being the case the limitations and 
obligations of the Fourteenth Amendment apply (Marsh 
v. Ala., supra), and the convictions should be reversed as a 
denial of equal protection.

P O I N T  VI

Refusal by trial judge to admit evidence to establish 
actual concert between McCrory’s and the police violated 
petitioners’ right to a fair and impartial trial as guaran­
teed by the Fourteenth Amendment.

The refusal of the trial judg'e to admit testimony show­
ing actual concert between the store proprietor and the 
police violated petitioners’ right to due process of law 
guaranteed by the Fourteenth Amendment (R. 22-25).

The expression of policy by the Mayor and the Superin­
tendent of Police of the City of New Orleans (R. 138-9) 
operated as a warning to all members of the Negro race 
not to seek service at lunch counters whether or not the pro­
prietor was willing to serve them. The pronouncement of 
policy by the leaders of the municipal authority operated 
also as notice to proprietors of business establishments not



25

to serve Negroes at “ white”  counters at the risk of suffer­
ing municipal censure or punishment.

Under the Civil Rights cases, supra, to show state par­
ticipation it was important that defendants prove concert 
between the store manager and the police. This was rele­
vant evidence, the exclusion of which was prejudicial to the 
petitioners as it limited their right to show that they were 
the victims of prohibited state action rather than of a 
protected personal act of the proprietor.

Conclusion

For all of the reasons set forth above, we respectfully 
ui’ge that the convictions of petitioners, and the affirmance 
thereof, be reversed and set aside.

Respectfully submitted,

Gael R achlin,
280 Broadway,
New York 7, N. Y.,

J ohn P. Nelson,
535 G-ravier Street, 
New Orleans, La.,

L olis E . E lie,
2211 Dryades Street, 
New Orleans, La., 

Attorneys for Petitioners.
J udith P. V ladeck,
R obeet F. Collins,
Nils R. D ouglas,
J anet M. R iley,
Chaeles Oldham,

of Counsel.



Grosby P ress, I n c ., 30 F erry  St., N . Y . C .— B E ekm an— 3-2336-7-8
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