Randolph, Jr. v. Virginia Petition for a Writ of Certiorari

    In the

Supreme Ghmrt #i tty Jshata
October Term, 1961 

No.................

R aymond B. R andolph, Jr., 
and T hirty-T hree Other P etitioners,

Commonwealth oe V irginia.

PETITION FOR A WRIT OF CERTIORARI 
TO THE SUPREME COURT OF APPEALS 

OF VIRGINIA

Martin A. Martin 
Clarence W . Newsome 

118 East Leigh Street 
Richmond, Virginia

T hurgood Marshall 
Jack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Petitioners

Charles L. B lack, J r. 
E lwood H. Chisolm 

Of Counsel



TABLE OF CONTENTS

PAGE

Citations to Opinions Below ...........................................  2

Jurisdiction .................    2

Questions Presented ........................................................  2

Statutory and Constitutional Provisions Involved....... 3

Statement ...........................................................................  4

How the Federal Questions Are Presented....................  6

Reasons for Granting the W rit.................... -.................  H
I. The Decision Below Conflicts With Decisions Of 

This Court On Important Issues Affecting Federal 
Constitutional Rights ...............................................
A. The arrest and conviction of these petitioners 

for disobedience to an order to leave a public 
place, motivated by a custom of segregation, 
which custom in turn was in part created and 
has long been maintained by state law and 
policy, constituted state enforcement of racial 
discrimination contrary to the due process and 
equal protection clauses of the Fourteenth 
Amendment ........................................................

~p~ B. The decision below conflicts with decisions 
of this Court securing the right to freedom 
of expression under the Fourteenth Amend­
ment .....................................................................



11

C. Petitioners either were convicted without proof 
of an element of the crime—their knowledge 
or notice of the authority of the persons order­
ing them to leave—or if such knowledge or 
notice is not an element of the crime, then 
they were convicted under a statute which they 
could not have known to embody the harsh 
and arbitrary rule that one who refuses to 
leave a public place at the command of a 
stranger does so at his peril. In either case, 
standards of the Fourteenth Amendment have 
been violated ......................................................  26

II. The Public Importance Of The Issues Presented .. 29

Conclusion .........................................................................  32

Appendix ...........................................................................  33
Opinion of the Supreme Court of Appeals of 

Virginia.................................................................... 33

Order or Judgment in Randolph.............................. 40

Order or Judgment in Bray ...................................  41

Opinion of Hustings Court .....................................  42

T able op Cases

Avent v. North Carolina, petition for cert, filed, 29 
U. S. L. Week 3336 ....................................................  30

Boman v. Birmingham Transit Co., 280 F. 2d 531 
(5th Cir. 1960) ............................................................  31

Briggs v. State, Ark. Sup. Ct. (No. 4992) ..................  30

PAGE



I ll

Briscoe v. Louisiana, cert, granted, 29 U. S. L. Week
3276 ...................................   30

Briscoe v. State, 341 S. W. 2d 432 (Tex. Crim. App.
1960) .............................................................................  30

Brown v. Board of Education, 347 U. S. 483 .............16,17
Buchanan v. Warley, 245 U. S. 60 (1917) ......................  13

Chance v. Lambeth, 186 F. 2d 879 (4th Cir.), cert.
denied 341 U. S. 941 (1951) ....................................  18

Civil Bights Cases, 109 U. S. 3 .................... . 13,. 14,15, 20
Connally v. General Construction Co., 269 U. S. 385 .... 27 
Crossley v. State, 342 S. W. 2d 339 (Tex. Crim. App.

1961) .............................................................................  30

Dept, of Conservation & Development v. Tate, 231 F.
2d 615 (4th Cir.), cert, denied 352 IJ. S. 838 (1956) 18

Drews v. State, 167 A. 2d 341. (Md. 1961), jurisdictional
statement filed, 29 U. S. L. Week 3286 ......................  30

DuBose v. City of Montgomery, 127 So. 2d 845 (Ala.
App. 1961) .....................        30

Feiner v. New York, 340 U. S. 315 ...... ...........................  25
Fox v. North Carolina, petition for cert, filed, 29 IT. S. L. 

Week 3336 .....    30

PAGE

Garner v. Louisiana, cert, granted, 29 IT. S. L. Week
3276 ...............................................................................  30

Gayle v. Browder, 352 U. S. 903 .....................................  17
Graver Tank & Mfg. Co. v. Linde Air Products Co., 339

IT. S. 605 .........................      14
Griffin v. State (Md. Ct. App. No. 248, decided June 8, 

1961) .............................................................................  30

Henderson v. Commonwealth, 49 Ya. (8 Grat) 708 (Va. 
Gen. Ct. 1852) ........................................... .................... 28



iy

Henry v. Commonwealth, writ of error denied, April 25,

PAGE

1961 (N o .------ ) _______ __________ ___________ ___  31
Holmes v. City of Atlanta, 350 U. S. 879....................... . 17
Hopkins v. City of Richmond, 117 Va. 692, 86 S. E. 139

(1915) ......... ............................. ......................... - ......... 16
Hoston v. Louisiana, cert, granted, 29 U. S. L. Week

3276 ............................................ ....... ..... ................... 30
Hudson County Water Co. v. McCarter, 209 U. 8. 349,

52 L. Ed. 828 (1908) ....................................................  12

James v. Almond, 170 F. Supp. 331 (D. C. E. D. Va.
1959) ................. .................... ....... ........... ..................16, 18

Johnson v. State, 341 S. W. 2d 434 (Tex. Crim. App.
1960) ................................ ............................................  30

King v. City of Montgomery, 128 So. 2d 340 (Ala. App.
1961) ..................................... .............- .... .................... 30

King v. State, 119 S. E. 2d 77 (Ga. 1961) ......................  30

Lambert v. California, 355 U. S. 225 ......... .................... 27
Lanzetta v. New Jersey, 306 H. S. 451 .............. ...........  27
Lupper v. State, Ark. Sup. Ct. (No. 4997) ....................  30

Marsh v. Alabama, 326 U. S. 501..................................... 13, 21
Martin v. State, 118 S. E. 2d 233 (Ga. App. 1961) ....... 30
Martin v. Struthers, 319 U. S. 141.................................  21
Morgan v. Virginia, 328 H. S. 373 ................ ................. 17
Morissette v. U. S., 342 U. S. 246 ..............................27, 28
Munn v. Illinois, 94 U. S. 113 .......................................  13

NAACP v. Patty, 159 F. Supp. 503 (D. C. E. D. Va.
1958), vacated on other grounds, 360 U. S. 167-----  16

Nash v. Air Terminal Services, 85 F. Supp. 545 (E. D.
Va, 1949) .....................................................................  18



y

New Orleans City Park Improvement Association v. 
Detiege, 358 U. S. 5 4 ................................................ -  17

Eeid v. City of Norfolk, 179 F. Supp. 768 (E. D. Va.
1960) ....................................................................... -....  18

Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793.... 21
Rex v. Storr, 3 Burr. 1698 ................... ...........................  28
Rucker v. State, 341 S. W. 2d 434 (Tex. Crim. App.

1960) .................   30
Rucker v. State, 342 S. W. 2d 325 (Tex. Crim. App.

1961) .............................................................................  30

Samuels v. State, 118 S. E. 2d 231 (Ga. App. 1961) .... 30
Shelley v. Kraemer, 334 U. S. 1 ................—........ -........  13
Smith v. California, 361 U. S. 147, 4 L. ed. (2d) 205 .... 25
Smith v. State (No. 4994), Ark. Sup. Ct........................  30
State ex rel. Steele v. Stoutamire, 119 So. 2d 792 (Fla.

1960) ............   30
Steele v. City of Tallahassee, 120 So. 2d 619 (Fla.

1960) .............................................................................  30
Steele v. City of Tallahassee, cert, denied, 29 U. S. L.

Week 3263 .................................................................... 30
Stromberg v. California, 283 U. S. 359 ...........................  21

Terry v. Adams, 345 U. S. 461.......... ..............................  15
Thompson v. Commonwealth, petition for writ of error

filed Ju ly------ , 1961................ .................................... 31
Thompson v. Louisville, 362 IT. S. 199 .......... -----.......... 29
Thornhill v. Alabama, 310 IT. S. 88 ..................................  21
Tinsley v. Commonwealth, 202 Va. 707, petition for

cert, filed, July 24, 1961, 30 IT. S. L. Week....... ........  31
Tucker v. State, 341 S. W. 2d 433 (Tex. Crim. App. 

1960)

PAGE

30



VI

Union Paper Bag Machine Co. v. Murphy, 97 U. S.
120 ...................................... -----..................... -----.........  14

United States v. Beaty, 288 F. 2d 653 (6th Cir. 1961) .... 13

Walker v. State, 118 S. E. 2d 284 (Ga. App. 1961) .... 30 
Williams v. Howard Johnson Restaurant, 268 F. 2d 845

(4th Cir. 1959) ...........— .... -.... -....... -................-.....
Williams v. North Carolina, petition for cert, filed,

29 U. S. L. Week 3336 ............................. -----..... -  30
Wieman v. Updegraff, 344 U. S. 183 .............................  25

Statutes

Louisiana Acts, 1960, Nos. 70, 77, 80 .............— ...... - 31

South Carolina Acts, 1960, No. 743 ...................- ............  31
Dallas, Texas, 1960 Ordinance (6 Race Rel. L. Rep.

317) ............................................................................... 31
Constitution of Virginia, §140............. .......... ................  19
Code of Virginia, 1950, §18-225 ................................. 3, 28, 29
Code of Virginia, 1950, §§18-327, 18-328 (now Code of 

Virginia, 1960 Replacement Volume, 18.1-356, 18.1-
357) ........................................ -........... -.................... -15,18

Code of Virginia, 1950, §20-54 .......................-................  19
Code of Virginia, 1950, §22-221 .....................................  19
Code of Virginia, 1960 Supp., §37-183  .......... -..............  19
Code of Virginia, 1953 Replacement Volume, §38.1-597 19 
Code of Virginia, 1958 Replacement Volume, §53-42 .... 19 
Code of Virginia, 1959 Replacement Volume, §56-196 .... 19
Code of Virginia, 1959 Replacement Volume, §56-326 - .  19

Virginia Acts, 1960, ch. 97 ...................—........................  31

28 U. S. C., §1257(3) ........................................................  2,8

PAGE



Oxheb A uthorities

American Law Institute, Model Penal Code, Tentative 
Draft No. 2, §206.53, Comment.................................  28

Citizens in Protest: A comment on the Student Demon­
strations of 1960, 6 How. L. J. 187 (1960) ..............  29

Foster, Race Relations in the South, 1960, 30 J. Negro 
Ed. 138 (1961) ............................................................ 29

Hand, The Bill of R ights................................................  14
House Joint Resolution No. 97, 1 Race Rel. L. Rep.

589 ................................................................................. 16
Opinion Letter, Feb. 14, 1956, Attorney General J. 

Lindsay Almond, Jr. to Hon. Robert Whitehead, 1
Race Rel. L. Rep. 462 ..................................................  16

Opinion of the State Attorney General to the Common­
wealth Attorney of Arlington County, Oct. 16, 1956,
1 Race Rel. L. Rep. 1156 (1956) .................................  16

Opinion of the State Attorney General to the Common­
wealth Attorney of the City of Roanoke, Aug. 24, 
1960, 5 Race Rel. L. Rep. 1282 (1960) ...................... 19

Pollitt, Dime Store Demonstrations: Events and Legal 
Problems of First Sixty Days, 1960 Duke L. J.
315 ......................................................................... 13,25,29

Sayre, Public Welfare Offenses, 33 Columbia L. Rev.
55 (1933) .......................................................................  28

Senate Joint Resolution, No. 3, Feb. 1, 1956 ................  16
Southern School News, April 1956, p. 1 3 ..................... 16
Woodward, The Strange Career of Jim Crow (1955) -  19

Vll

PAGE



In the

(tart af tlp> Hutted States
October Term, 1961 

No.................

R aymond B. R andolph, Jr., 
and T hirty-T hree Other P etitioners,

Commonwealth op V irginia.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

Petitioners (Raymond B. Randolph, Jr., Leroy M. Bray, 
Jr., Gordon Coleman, Gloria Collins, Robert B. Dalton, 
Joseph E. Ellison, Jr., Marise Ellison, Wendell T. Foster, 
Jr., A. Franklin, Donald Goode, Woodrow Grant, Albert 
Van Graves, Jr., George Wendell Harris, Jr., Yvonne Hick­
man, Joana Hinton, Carolyn Horne, Richard C. Jackson, Jr., 
Elizabeth Johnson, Ford T. Johnson, Jr., Milton Johnson, 
Celia E. Jones, Clarence A. Jones, Jr., John Jones McCall, 
Frank G. Pinkston, Larry Pridgen, Ceotis L. Pryor, Samuel 
Shaw, Charles M. Sherrod, Virginia Simms, Ronald Smith, 
Barbara Thornton, Randolph Allen Tobias, Patricia Wash­
ington, and Lois B. White) pray that a writ of certiorari 
issue to review the judgments of the Supreme Court of 
Appeals of Virgina, entered in the above-entitled cases on 
April 24,1961.



2

Citations to Opinions Below

The opinion and judgment or order of the Supreme Court 
of Appeals of Virginia in the case styled Randolph v. Com­
monwealth is reported at 202 Va. 661, 119 S. E. 2d 817, 
and it is set forth in the appendix hereto, infra, pp. 33-39, 40 
The thirty-three identical judgments or orders of the Su­
preme Court of Appeals, denying writs of error and super­
sedeas in the other cases “ for the reasons stated in the 
[Randolph] case” are not reported; however, one of these 
judgments or orders is set forth in the appendix hereto, 
infra, p. 41.

The verbatim opinion filed by the Hustings Court of 
the City of Richmond in each of the thirty-four eases (see, 
e.g., R. Randolph 11-14) is not reported; but it is also 
set forth in the appendix hereto, infra, pp. 42-45.

Jurisdiction

The judgments of the Supreme Court of Appeals of Vir­
ginia were entered on April 24, 1961. The jurisdiction of 
this Court is invoked under 28 U. S. C., §1257(3), peti­
tioners having claimed and been denied rights, privileges, 
and immunities under the Fourteenth Amendment to the 
Constitution of the United States.

Questions Presented

Petitioners, Negro students, peacefully sought food 
service at lunch counters located in a public establishment 
wdiich welcomed their presence and trade except at these 
lunch counters. They were ordered to leave the premises, 
and upon their refusal were arrested, tried and convicted 
under a statute making it a crime to “ . . . remain upon the



3

lands or premises of another, after having been forbidden 
to do so by the owner, lessee, custodian, or other person 
lawfully in charge of such land. . . . ” Under the circum­
stances, were the petitioners deprived of rights protected 
by the:

1. equal protection and due process clauses of the Four­
teenth Amendment, in that their arrest and convictions 
implemented a state custom, long supported and fostered 
by state law, of racial segregation in public places;

2. due process clause of the Fourteenth Amendment, as 
that clause embodies the guarantee of free expression, in 
that their arrest and conviction in the circumstances of this 
case constituted an abridgement of the freedom of ex­
pression;

3. due process clause of the Fourteenth Amendment, 
in that they were convicted on records barren of evidence 
of an element of guilt, viz., notice to them of the authority 
of the person ordering them out;

4. (in the alternative to 3) due process clause, in that 
they were convicted under a statute which gave no adequate 
warning of the harsh and irrational rule that one must 
leave a public place at the command of an unidentified 
stranger?

Statutory and Constitutional 
Provisions Involved

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

2. Section 18-225 of the Virginia Code of 1950, as 
amended, reading as follows:



4

If any person shall without authority of law go upon 
or remain upon the lands or premises of another, after 
having been forbidden to do so by the owner, lessee, 
custodian or other person lawfully in charge of such 
land, or after having been forbidden to do so by sign 
or signs posted on the premises at a place or places 
where they may be reasonably seen, he shall be deemed 
guilty of a misdemeanor, and upon conviction thereof 
shall be punished by a fine of not more than One Hun­
dred Dollars or by confinement in jail not exceeding 
thirty days, or by both such fine and imprisonment.

Statement

These thirty-four cases, all decided on the same day 
(April 24, 1961) and on the same grounds by the Supreme 
Court of Appeals of Virginia, arose out of the same course 
of events, occurring in the early afternoon of February 22, 
1960, at Thalhimer’s Department Store in the City of Rich­
mond. Petitioners were tried and convicted in the Police 
Court of the City of Richmond, all before the same judge 
and with the same prosecutor and defense counsel, between 
March 4 and March 22, 1960. On appeal to the Hustings 
Court of the City of Richmond, these cases were retried, per 
stipulation, on the records made in the Police Court (see 
Appendix, infra, pp. 33, 43) and all petitioners were found 
guilty in thirty-four verbatim opinions filed by the Hust­
ings Court of May 26, 1960 (Appendix, infra, pp. 42-45). 
All the cases were taken to the Supreme Court of Appeals 
of Virginia on applications for writ of error and super­
sedeas, which court delivered an opinion only in the case 
styled Randolph v. Virginia (Appendix, infra, pp. 33-39) 
and decided each of the other cases on the basis of that 
opinion by specific reference thereto (see, e.g., Appendix 
infra, p. 41).



5

These cases have thus received a unitary treatment in 
the judicial system of Virginia. In this petition, reference 
will be made to the Records by name of the particular 
defendant. The Records are substantially identical in 
all parts other than the transcripts of testimony.

On February 22, 1960, petitioners, Negro students, en­
tered Thalhimer’s Department Store, to which they were 
invited as members of the public. While there, they at­
tempted to obtain service at eating facilities reserved for 
white patrons—two lunch counters, a soup bar, and a 
restaurant. There is a lunch counter for Negroes in the 
basement. All petitioners were refused service at the facili­
ties reserved for whites, “because they were Negroes.” (R. 
Randoph 26, stipulation repeated verbatim in each other 
record.)

Each of the petitioners was then ordered to leave the 
store by a person who later turned out to be an official of 
the store. There is no hint, testimonial or inferential, that 
this order was motivated by any ground other than the 
one suggested by the circumstances—that petitioners were 
ordered to leave because they sought unsegregated service. 
There is nothing to suggest that petitioners, or any of them, 
were for any reason or for no reason personally obnoxious 
to Thalhimer’s, Inc., or to any official thereof.

These records do not show with any clarity that peti­
tioners, or any of them, had notice of the authority of the 
persons ordering them to leave. In some of the records 
that possibility is rebutted with particular clarity. For 
example, in the ease of Robert B. Dalton, the store employee 
who issued the order, testified that he was a stranger to 
Dalton and that he did not notify Dalton in any way either 
of his identity or of his authority (R. Dalton 10-11).

Upon their refusal to leave, petitioners were taken before 
a Magistrate sitting in the store (R. Pinkston 7) and war­



6

rants sworn for their arrest. They were tried and con­
victed in Police Court, and fined twenty dollars each; these 
convictions, as stated above, were in effect affirmed in 
de novo trials, on the Police Court transcripts, in the 
Hustings Court. The Supreme Court of Appeals affirmed 
the Randolph conviction and rejected the other petitions 
for writ of error, which had the effect of affirming the 
judgments.

How the Federal Questions Are Presented

The federal questions which petitioners seek to have 
this Court review were raised in the court of first impres­
sion, the Police Court of the City of Richmond, by timely 
motions to dismiss and to strike the evidence in each case 
on the following grounds (see, e.g., R. Randolph 22-23):

A  conviction under this warrant and the evidence 
presented would:

1. Violate the right of this defendant of freedom of 
assembly under State law and the United States Con­
stitution.

2. Violate the right of this defendant of freedom of 
speech and of association under State law and the 
United States Constitution.

3. Deny this defendant due process of law in that 
he was arrested and prosecuted under a State law 
and deprived of his liberty and ejected from a public 
place solely on account of his race and color.

4. Violate the rights of this defendant under the 
equal protection clause of the Fourteenth Amend­
ment of the Constitution by being singled out for 
ejection and arrested by reason of his race and color.



7

5. Deny him due process of law by making it a 
crime for him to obey a private rule or regulation and 
the statute, even if constitutional on its face, is being 
unconstitutionally applied.

6. Make it a crime, at the whim of a private per­
son, for the defendant to be on property upon which 
the general public has a right to be, and thereby denies 
him due process and the equal protection of the law, 
regardless of race.

7. Authorize and permit private persons to dis­
criminate against this defendant on account of race, 
and when such discrimination is enforced by the con­
viction of this defendant by the State would constitute 
a denial of the equal protection of the laws and due 
process of law guaranteed by the United States Con­
stitution.

8. Deny this defendant the equal protection of the 
laws since, after having been invited into the store, 
he was then ordered out and discriminated against by 
the store on account of his race, and when, as in this 
case, such discrimination is enforced by State legal 
process.

9. Violate defendant’s common law and statutory 
right not to be excluded from the common market.

The Police Court overruled the motion in each case (see, 
e.g., R. Randolph 25) and petitioners were each found 
guilty and fined $20.00 (Id.).

Thereafter, on appeal of these thirty-four cases to the 
Hustings Court of the City of Richmond (Appendix, infra, 
p. 43), the State and each defendant stipulated and agreed 
that the following was to be read in conjunction with the 
reporter’s transcript of the hearing in the Police Court 
of the City of Richmond (R. Randolph 26) :



8

5. That all motions and objections made in any of 
the other 33 cases shall be considered by the court 
as having been made in this case and the rulings on 
such motions and objections shall be considered as 
having been made in this case.

The constitutional issues preserved by this stipulation were 
briefed and argued (Appendix, infra, p. 43); and, after 
review and consideration thereof, the Hustings Court held 
“ that no constitutional rights of the defendants have been 
violated” (Appendix, infra, p. 45), and “ that the failure 
of the defendants to leave the premises when requested by 
an official of Thalhimer’s constituted trespass under Section 
18-225 of the Code of Virginia” (Id.).

Thereupon petitioners sought, and the Hustings Court 
granted, a stay of execution of the sentence in order that 
they might apply to the Supreme Court of Appeals of 
Virginia for a writ of error and supersedeas (R. Randolph 
8, 9, 10). Each such application for a writ of error and 
supersedeas made the following assignments of error (see, 
e.g., R. Randolph 15-17) :

1. The Court erred in refusing to strike the evidence 
and dismiss this cause on the ground that the statute, 
as applied, abridges the right of the defendant to free­
dom of assembly under the First Amendment, as im­
plemented by the Fourteenth Amendment, to the Con­
stitution of the United States.

2. The Court erred in refusing to strike the evidence 
and dismiss this action on the ground that the statute, 
as applied, violates the rights of this defendant to free­
dom of speech and of association under the Constitution 
of the State of Virginia and the First Amendment, as 
implemented by the Fourteenth Amendment to the 
Constitution of the United States.



9

3. The Court erred in convicting this defendant of 
trespass since there is no evidence that the defendant 
knew that he was trespassing upon the property of 
Thalhimer’s Store.

4. The Court erred in convicting this defendant of 
trespass, contrary to the due process clause of the 
Fourteenth Amendment to the Constitution of the 
United States and contrary to the law’s of the State 
of Virginia which recognize that a conviction of tres­
pass may not be obtained against one on the premises 
under a claim of property right, since he was upon the 
premises in question under a claim of constitutional 
right.

5. The Court erred in convicting this defendant since 
there was no evidence to show that this defendant 
had any knowledge of the policy of Thalhimer’s Store 
not to serve this defendant or persons of his race and 
color, and no reason was given this defendant as to why 
he was trespassing either at the lunch counter or in the 
store, nor did the employee of the store identify himself 
as such, nor did this defendant know of the official 
capacity of the employee, nor the reason for the de­
mand to leave, thereby denying this defendant due 
process of law and the equal protection of the laws 
contrary to the Fourteenth Amendment to the Con­
stitution of the United States.

6. This defendant was denied due process of law 
guaranteed by the Fourteenth Amendment to the Con­
stitution of the United States by being convicted of a 
crime for having disobeyed the order to leave the prem­
ises of one allegedly in possession, without requiring 
that such person establish his identity or authority for 
making the demand and when no proof of this identity 
or authority was presented at the time of the demand.



10

7. This defendant was denied dne process of law 
contrary to the Fourteenth Amendment to the Constitu­
tion of the United States in that he was arrested, prose­
cuted and convicted under a state law which deprived 
him of his liberty and authorized his ejection from a 
public place, solely on account of his race and color.

8. The statute, as applied, violated the rights of this 
defendant under the equal protection clause of the 
Fourteenth Amendment to the Constitution of the 
United States by his being singled out for ejection 
and arrest by reason of his race and color.

9. The statute, as applied, denied this defendant 
due process of law by making it a crime for him to dis­
obey a rule or regulation of a private person, when 
the State enforced such rule by establishing magis­
trate’s office in the store and arresting defendant.

10. The statute, as applied, denied this defendant 
due process and the equal protection of the laws guar­
anteed by the Fourteenth Amendment to the Constitu­
tion of the United States, in that it authorized or re­
quired the conviction of this defendant of a crime for 
failing or refusing to obey an order of a private per­
son, based solely upon the race or color of the de­
fendant.

11. This defendant was denied the equal protection 
of the laws guaranteed to him under the Fourteenth 
Amendment to the Constitution of the United States 
when, after having been invited into the store, he was 
then ordered out and discriminated against by the store 
on account of his race and color, and when the State 
enforced such discrimination by the arrest and con­
viction of this defendant.



1 1

12. The statute, as applied, violates the common 
law and statutory right of this defendant not to be 
excluded from the common market.

The Supreme Court of Appeals disposed of these conten­
tions adversely to petitioners in its opinion and order filed 
in the Randolph case (Appendix, infra, pp. 34, 36, 37, 38, 39, 
40) and the orders entered in conformity therewith in the 
other thirty-three cases.1

Reasons for Granting the Writ

I
The Decision Below Conflicts With Decisions of This 

Court on Important Issues Affecting Federal Constitu­
tional Rights.

A. The arrest and conviction of these petitioners for 
disobedience to an order to leave a public place, 
motivated by a custom of segregation, which cus­
tom in turn was in part created and has long been 
maintained by state law and policy, constituted 
state enforcement of racial discrimination contrary 
to the due process and equal protection clauses 
of the Fourteenth Amendment.

These petitioners were tried and convicted for viola­
tion of a statute which makes it a crime not to get off 
private property when ordered to do so by the owner or by

1 R. Bray 15; R. Coleman 25; R. Collins 11; R. Dalton 21; R. 
Ellison (J.E.) 25; R. Ellison (M.) 36; R. Foster 11; R. Franklin 
21; R. Goode 11; R. Grant 18; R. Graves 19; R. Harris 17; R. 
Hickman 12; R. Hinton 12; R. Horne 22; R. Jackson 11; R. 
Johnson (E.) 23; R. Johnson (F.T.) 17; R. Johnson (M.) 30; 
R. Jones (C.E.) 12; R. Jones (C.A.) 33; R. McCall 21; R. Pinkston 
30; R. Pridgen 19; R. Pryor 33; R. Shaw 12; R. Sherrod 47; R. 
Simms 23; R. Smith 22; R. Thornton 13; R. Tobias 12; R. Wash­
ington 12; R. White 12.



12

someone acting for him. There could be no question of 
either the constitutionality or the desirability of such a 
statute, in its normal functioning as a basic sanction for 
the protection of private property. A man ought to have 
a right to order from his home anybody he prefers not to 
have there, and to have the help of the law in making the 
order effective. But Thalhimer’s, a public commercial 
establishment to which petitioners were invited, is the 
home of no one, and Thalhimer’s, Inc. was not in this case 
exercising a mere “personal” choice but has invoked state 
power to help it obey the force of massive custom, which in 
its turn has been long supported by state law and policy. 
The “property” interest of Thalhimer’s Inc. is an exceed­
ingly narrow one, for these petitioners, with the general 
public, were not so much “ invited” as besought to come into 
Thalhimer’s, so long as they abstained from the single 
forbidden fruit of equal treatment in a few restaurants; 
the “property” right actually at stake is the specific right 
to segregate, and no other. The cases were tried and af­
firmed on the theory that these sweeping differences in fact 
can make no difference in result—that the right to choose 
those who come or stay on one’s property is (through the 
whole range of motivation, through the whole range of pub­
lic connection and effect, through the whole range of prop­
erty classified for other purposes as “ private” ) an absolute, 
yielding to no competing considerations. Property rights 
are rarely if ever quite that absolute;2 in this case the right 
of private property collides with the Fourteenth Amend­

2 As Mr. Justice Holmes pointed out in Hudson County Water 
Co. v. McCarter, 209 U.S. 349, 52 L.Ed. 828 (1908) : “ All rights 
tend to declare themselves absolute to their logical extreme. Yet 
all in fact are limited by the neighborhood of principles of policy 
which are other than those on which the particular right is founded, 
and which become strong enough to hold their own when a certain 
point is reached.” Id. at 356, 56 L.Ed. at 832.



13

ment right not to be subjected to public racial discrimina­
tion. Shelley v. Kraemer, 334 U. S. 1; V. S. v. Beaty, 288 
F. 2d 653 (6th Cir. 1961).

Thalhimer’s property is open to the public, including 
Negroes. As a great department store, Thalhimer’s is a 
part of the public life of the community. In choosing to ex­
clude Negroes from some of its restaurants, and to expel 
from the store all who protest against this humiliation, 
Thalhimer’s followed a policy of public racial discrimina­
tion. It was in support of this policy of public racial dis­
crimination that the public force was invoked, in the shape 
of police intervention and these convictions. The assimila­
tion of this situation to the broadly dissimilar one of the 
householder who orders an unwelcome intruder to leave is 
not the product of skill in generalizing, but rather the re­
sult of refusal to have regard to clearly significant distinc­
tions where these leap to the eye. Only doctrinal clumsiness 
could force the law to treat alike two things so utterly dif­
ferent.

Our doctrine is not that clumsy. Quite aside from the 
obvious amenability of “private” property rights to many 
limitations in the public interest, Mnnn v. Illinois, 94 U. S. 
113,3 even when these limitations root in the Constitution 
alone, Marsh v. Alabama, 326 U. S. 501, the action here is 
not in any relevant sense purely “private” .

The requirement of “ state action” as a prerequisite to 
the invocation of Fourteenth Amendment guarantees has 
proven an unreliable and perhaps meaningless guide among 
the intricacies of state involvement in activities nominally 
“ private” . The Civil Bights Cases, 109 U. S. 3, from which

3 See also, Buchanan v. Warley, 245 U.S. 60, 74 (1917); Pollitt, 
Dime Store Demonstrations: Events and Legal Problems of First 
Sixty Days, 1960 Duke L.J. 315, 358-9.



14

the requirement stems, laid it down that “ some” state ac­
tion supporting the forbidden activity is enough, 109 U. S. 
13; since total absence of state involvement, except pos­
sibly in cases of common crime, never occurs, the “ state 
action” doctrine is fated to become more and more trouble­
some as insight deepens into the complexities of state in­
volvement.

Nor is it clear that “ state action” , even under the Civil 
Rights Cases, must always be “ political” action; “ custom” 
is specifically included in the Civil Rights opinion, as one 
of the forms of “ state authority” , 109 U. S. 17, and it may 
be that behind this is the conception of the “ state” as a 
community, imposing its will through “ custom”. It is ques­
tionable whether even the verbal requirement of “ state ac­
tion” in equal protection cases ever rested on more than a 
misunderstanding,4 for the “ denial” of “ protection” seems 
to refer even more naturally to state inaction than to state 
action.

We have, moreover, lately been reminded by one of our 
most illustrious judges, in a solemn constitutional context, 
that “ for centuries it has been an accepted canon in inter­
pretation of documents to interpolate into the text such 
provisions, though not expressed, as are essential to pre­
vent the defeat of the venture at hand . . . ” Hand, The Bill 
of Rights, p. 14. It may be that this ancient principle 
justifies the extension of Fourteenth Amendment protec­
tion to “ private” actions which must be prohibited lest the 
Amendment fail of its broad purposes. (Something like 
this, in the doctrine of “ equivalents” has long aided the 
patentee, Union Paper Bag Machine Co. v. Murphy, 97 U. S. 
120; Graver Tank & Mfg. Co. v. Linde Air Products Co., 339

4 See generally Mr. Justice Harlan dissenting in Civil Rights 
Cases, 109 U.S. 3, 26-62 (1883).



15

U. S. 605; Fourteenth Amendment rights of full member­
ship in the community call for no less favorable treat­
ment. Cf. Terry v. Adams, 345 U. S. 461.)

But in the present case the involvement of the State of 
Virginia as a whole entity is so intimate and manifold 
that we need not reach these ultimate problems. As a com­
munity and as a polity, Virginia had its hands in the oc­
currences at Thalhimer’s to an extent sufficient to satisfy 
any reasonable “ state action” standard.

The intervention of the police in cooperation with the 
Thalhimer management, the sitting of the magistrate actu­
ally in the store (R. Pinkston 7-8), the invocation of the 
whole machinery of arrest and prosecution—these are the 
immediate and overt state interventions. “ Whether the 
statute book of the State actually laid down any such rule 
. . . , the State, through its officer, enforced such a rule; 
. . . ” Civil Rights Cases, supra, 109 U. S. at 15.

But the deeper involvement of the State arises from two 
facts: 1) Thalhimer’s, in excluding Negroes, was not acting 
capriciously, or in obedience to the personal whims of those 
in control, or in conformity with their desires as to asso­
ciation, but was following a custom which is deeply char­
acteristic of the State of Virginia as a community; 2) this 
custom, in turn, has been firmed up and supported by a 
policy which is the cornerstone policy of the State of Vir­
ginia as a political body, and which has received expres­
sion in its laws5 and other official utterances6—the policy

5 Code of Virginia, 1950, §§18-327 and 18-328 (now Code of 
Virginia, 1960 Replacement Volume, §§18.1-356 and 18.1-357) 
requires segregation in all places of public entertainment or as­
semblage. Some other statutes requiring segregation in other areas 
of public life are cited infra, p. 19.

6 As long ago as 1915, the Supreme Court of Appeals of Virginia 
stated that it was “ the declared policy of this state that association



16

of segregating Negroes in public life. The refusal to see in 
this pattern a sufficient involvement of the State to support 
the application of the equal protection clause could arise 
only from a supposed obligation to swallow wdiole the 
formalities of “ private” property, and “private” action, 
where the action is in its roots as public, as deeply com­
munal, as action ever can be.

Although the Commonwealth attorney was repeatedly 
upheld by the Police Court judge in objections to explora­
tion of the motives of Thalhimer’s officials on this occasion, 
the only rational or even imaginable ground Thalhimer’s, 
Inc. could have had for its actions on February 22, 1960 
must be that of obedience to Virginia custom. Deference 
to the prejudices of white patrons, or fear of disorder, are 
merely alternative ways of referring to different aspects 
of this custom. Petitioners were refused service because 
they were Negroes, were ordered from the store, refused 
to leave, and were arrested. It is hard to imagine evidence

of the races tends to breach of the peace, unsanitary conditions, 
discomfort, immorality and disquiet.” Hopkins v. City of Rich­
mond, 117 Va. 692, 86 S.E. 139, 145. The League of Women Voters 
was told by State Attorney General Almond that it had a duty 
to segregate the races at a meeting of voters. Opinion of the 
State Attorney General to the Commonwealth Attorney of Arling­
ton County, October 16, 1956, 1 Race Rel. L. Rep. 1156 (1956). 
The response of the Virginia Legislature to this Court’s decision 
in Brown v. Board of Education, 347 U.S. 483, was the adoption 
of a resolution of “ interposition” , Senate Joint Resolution No. 3, 
Peb. 1, 1956; see also, Opinion Letter, Feb. 14, 1956, Attorney 
General J. Lindsay Almond, Jr., to Honorable Robert Whitehead, 
1 Race Relations Law Reporter 462. Other utterances are referred 
to in James v. Almond, 170 F. Supp. 331, 333-334 (D.C. E.D. Va. 
1959). See also NAACP  v. Patty, 159 F. Supp., 503, 513-515 
(D.C. E.D. Va. 1958), vacated on other grounds 360 U.S. 167. In 
1956 The Virginia House of Delegates and Senate adopted House 
Joint Resolution No. 97, declaring that “ . . . The long established 
policy of this Commonwealth has been to provide for the separation 
of the races . . . ” and that “ . . . this wise policy should be pre­
served by all the legal means at our command . . . ” 1 Race Rel. 
L. Rep. 589; Southern School News, April 1956, p. 13.



17

which could rebut the inference, from these facts, that their 
arrest was the direct consequence of Thalhirner’s election 
to bow to the custom of segregation, and not a scintilla of 
such rebutting evidence appears.

No “ right not to associate” can here be asserted on 
Thalhimer’s behalf, even if a corporation can have such 
an interest, for the employees who made the decision were 
acting in an official rather than a personal capacity, and 
had nothing personal at stake. The President of Thal­
himer’s Inc. testified to his own utter detachment from the 
whole situation (R. Sherrod 37-8). The only “ right not to 
associate” being protected was that of the white patrons 
of Thalhimer’s Inc., but (aside from the fact that they had 
no voice in the matter) this is only another way of saying 
that Thalhimer’s Inc. acted in obedience to the public cus­
tom of public segregation that prevails in Virginia, and 
to nothing else.

The State of Virginia as a community was thus inextri­
cably involved in these events. But the State of Virginia as 
a political body was also involved, because the custom of 
public segregation is one to which the State has given 
(and continues to give) the massive support of all its 
political institutions. The “ custom” of segregation is not 
a “ custom” simpliciter, but a custom which has been, if 
not the chief end of Virginia’s policy, one of its absolutely 
prime objectives.7

It is true that most of the official support given by 
Virginia to segregation is now, formally at least, nullified 
by the decisions of this Court.8 (The segregation laws as

7 See note 6, supra.
8E.g., Morgan v. Virginia, 328 U.S. 373; Brown v. Board of 

Education, 347 U.S. 483; New Orleans City Park Improvement 
Association v. Detiege, 358 U.S. 54; Gayle v. Browder, 352 U.S. 
903; Holmes v. City of Atlanta, 350 U.S. 879.



18

to public places were, however, still being enforced de facto 
in Virginia at about the time these petitioners were ar­
rested. See, e.g., Reid v. City of Norfolk, 179 F. Supp. 768 
(E. D. Va. I960).) But a factual causal nexus is not so 
easily broken. If, for decades, the State of Virginia has 
fostered and enforced the separation of the races, that 
separation, as it exists today in custom, cannot be said to 
have no causal relation to the action of the State, merely 
because, much against its officially declared will,9 the State 
may no longer lawfully enforce segregation laws under 
that name.10 A house remains the product of its builder, 
even if he is forbidden to keep it in repair. And Virginia, 
as a political entity, built the custom of segregation.

It is, to be sure, doubtful whether segregation in restau­
rants was formally required by the Virginia law concern­
ing segregation in places of public assembly (Code of Vir­
ginia, 1950 §§18-327 and 18-328, now Code of Virginia, 1960 
Replacement Volume, §§18.1-356 and 18.1-357). One fed­
eral court has said it was, Nash v. Air Terminal Services, 
85 F. Supp. 545 (E. D. Va. 1949); another federal court, 
on concession by a party, has proceeded on the assumption 
that it was not, Williams v. Howard Johnson Restaurant, 
268 F. 2d 845 (4th Cir. 1959). After the present cases were 
tried, the Attorney General of Virginia (in response to an 
inquiry from a municipality that still, it seems, desired to 
enforce the segregation laws in accordance with their just

9 See note 6, supra.
10 Efforts are nevertheless made to achieve segregation by devices 

short of literal enforcement of laws on their face requiring it. See 
e.g., Dept, of Conservation & Development v. Tate, 231 F.2d 615 
(4th Cir.) cert, denied 352 U.S. 838 (1956) (leasing of public park 
facilities to lessee practicing segregation); Chance v. Lambeth, 186 
F.2d 879 (4th Cir.) cert, denied 341 U.S. 941 (1951) (Ry. com­
pany regulation used to enforce segregation after statute declared 
unconstitutional); James v. Almond, 170 F. Supp. 331 (E.D. Va. 
1959) (schools closed to avoid desegregation).



19

construction) gave it as Ms opinion that the statute does 
not require restaurant segregation, but he relied wholly 
on the rule ejusdem generis, hardly a satisfying guide for a 
restaurant manager. Opinion of the State Attorney Gen­
eral to the Commonwealth Attorney of the City of Roanoke, 
Aug. 24, 1960, 5 Race Relations Law Reporter 1282 (1960). 
The point has not been settled by the Virginia courts, and 
is now without intrinsic interest, since on either construction 
the statute is clearly void under the decisions of this Court. 
But the question is not whether Virginia as a polity 
literally required restaurant segregation. The question is 
whether Virginia as a polity has contributed to maintain­
ing the custom followed by Virginia as a community. And 
it is beyond any question that a State which enacts that 
whites and Negroes may not study together (Const, of Va. 
§140; Code of Va., 1950, §22-221), marry one another (Code 
of Va., 1950, §20-54), go to prison together (Code of Va., 
1958 Replacement Volume, §53-42), join a fraternity to­
gether (Code of Va., 1953 Replacement Volume, §38.1-597), 
go together to the hospital for feebleminded (Code of Vir­
ginia, 1960 Supp., §37-183), wait for an airplane together 
(Code of Va., 1959 Replacement Volume, §56-196), get on 
a bus together (Code of Va., 1959 Replacement Volume, 
§56-326),—is making it at least vastly more likely that 
they will not, as a matter of custom, eat together or be fed 
together. Segregation is all one piece; when the State holds 
up the edifice at a hundred points by law, it is surely 
contributing to its standing up even at the points where 
the law does not directly take hold.

There is even good historic ground for the belief that 
the segregation system, of which the “ custom” enforced 
by Thalhimer’s Inc. is a part, was brought into being, or 
at least given firm contour in its beginnings, by state law. 
Woodward, The Strange Career of Jim Crow, 16-22, 81-85, 
91-93.



20

Thalhimer’s Inc. therefore invoked the immediate force 
of state law in order to continue obedience to a statewide 
custom that is itself the creature of state law. The ele­
ment of “private” choice in this pattern is negligible, and 
Thalhimer’s Inc. has actually no “private” interest in the 
matter at all, apart from the gains it may have anticipated 
from following the state-fostered custom. On the most 
stringent criteria, “ state action” permeates the whole course 
of treatment to which these petitioners have been subjected. 
A  contrary holding would turn upside-down the criterion 
stated in the Civil Rights Cases, for it would have to rest 
on the proposition that action is “private” unless it is 
wholly public—that the entrance of any small component 
of private choice into an essentially public pattern robs that 
pattern of its public character.

This being so, no other aspect of the present point is 
even arguable, for racial segregation, where infected with 
state power, is clearly unconstitutional.11

B. The decision below conflicts with decisions of this 
Court securing the right to freedom of expression 
under the Fourteenth Amendment.

It is stipulated in this case that petitioners, members of 
the Negro race, came into the store in which they were 
arrested for the purpose of peacefully seeking service at 
a counter reserved for whites (R. Randolph 26, in stipula­
tion repeated verbatim in all other records). It cannot 
be doubted that such an entrance, for such a purpose, con­
stitutes not only an attempt to eat lunch but also a solemn 
expression of a demand for equal treatment. Although a 
non-verbal expression of such a character is quite suffi­
cient for invocation of the constitutional guarantees of

11 See note 8, supra.



21

freedom of expression, Thornhill v. Alabama, 310 TJ. S. 
88; Stromberg v. California, 283 U. S. 359, it is fairly in­
ferrable, from the stipulation that petitioners were “ re­
fused service” (R. Eandolph 26), that they verbally re­
quested it, and this too was, in the circumstances, very 
clearly an expression of belief that it ought to be given 
them.

The fact that these attempts at expression of belief oc­
curred on private property is of course not enough, without 
more, to strip them of constitutional protection. Marsh 
v. Alabama, 326 U. S. 501; Martin v. Struthers, 319 U. S. 
141; see also Republic Aviation Corp. v. N. L. R. B., 324 
U. S. 793. These petitioners were, with the general public, 
invited onto this property, and being lawfully there they 
had the right to express themselves, at the least, on topics 
connected with their relations with the store, and hence 
clearly adapted to time and place. There is no hint in the 
records that their expression wTas other than moderate and 
peaceful. Nor is there any doubt that the machinery of 
the state was invoked for the sole purpose of putting an 
end to this expression, for it is stipulated that they were 
refused service (R. Eandolph 26) and no reason is sug­
gested for their attempted expulsion and arrest other than 
their persistence in the expression of their peaceful demand.

But in these cases there is a more specific ground for 
holding that the petitioners’ right to free expression has 
been curtailed. These convictions were obtained without 
clear evidence, in any of the cases, of notice to petitioners 
of the authority, or even the identity, of the store employee 
who ordered them out. In some of the cases the testimony 
of the Commonwealth’s own witness is to the effect that 
no notice of authority was given (e.g., R. Dalton 10-11). 
In none of the cases was it made clear by the courts below



22

that such knowledge had to exist for a conviction to be 
sustained.

The course of treatment of these cases leaves it unclear 
on just what theory the Virginia courts proceeded to dis­
regard the question of notice of authority, but it is crystal 
clear that they did so disregard it. At many points in 
these records, the prosecutor who tried all the cases states 
explicitly his theory of the essentials to conviction, and 
notice of authority is never one of them (e.g., R. Pinkston 
13). In the Sherrod case, the objection was raised explicitly 
by counsel for the defendant, in the form of a motion to 
strike the Commonwealth’s evidence; the following quota­
tion exhibits very clearly the theories on which the prosecu­
tor and the police court judge were proceeding (R. 25-6):

Mr. Martin: If Your Honor please, we move to 
strike the evidence of the Commonwealth in this case. 
It appears to me that this case is even weaker than 
the cases we tried yesterday. Here is a man that was 
in Thalhimer’s, apparently on business, as a number 
of other people were there as customers. The Common­
wealth’s own witness does not deny that he was a 
customer there and, for some reason he refuses to 
state, he just asked him to leave. There is no state­
ment from the Commonwealth’s Attorney or the Com­
monwealth’s evidence that he even identified himself 
as being an employee of Thalhimer’s. Here is a strange 
man comes up to a stranger and orders him to leave 
the store and he refuses to leave, as I would have done 
or Your Honor would have done, and then he gets a 
warrant for him and puts the processes of the State 
of Virginia in motion to prosecute this man, charging 
him with a crime. I submit that is no crime where a 
stranger, an unidentified person, comes up and asks a 
man to leave the store in which he is a customer and



23

an invitee. For that reason, we move to strike the 
evidence.

Mr. Wilkinson: If Your Honor please, my remarks 
will be very brief in this ease, but, as I recall the testi­
mony, the man was advised several times to leave by 
Mr. Hamblet and he was advised what would happen 
if he did not leave, and he refused to leave, and I think 
the Commonwealth has carried the burden of this case.

The Court: The motion is overruled.

In a good many of the cases, it is especially clear that no 
rational trier of fact could have concluded, on the basis of 
testimony, that the defendant had notice of the authority or 
identity of the person ordering him to leave, for both the 
Commonwealth witness and the defendant testified to the 
contrary (e.g. R. Dalton 10-11, 14; R. Elizabeth Johnson 
13-14, 16; R. Clarence A. Jones 19, 24). Yet a finding of 
guilty was nonetheless entered by the Police Court judge.

The Hustings Court judge, with the transcripts of the 
Police Court trials (and no other evidence) before him, 
found the defendants all guilty, in identical opinions not 
mentioning the question of notice of authority. No tran­
script before him had adequate evidence for an affirmative 
finding on this point, but it is even more significant that 
many of them affirmatively forbade such a finding, as just 
shown. His actions in these cases make it entirely clear 
that he was proceeding throughout in entire disregard of 
the question of the defendants’ notice of the authority of 
the person giving the order on the basis of which conviction 
was predicated.

In its opinion in the Randolph case, the Supreme Court 
of Appeals, though it seems to find in the at best incon­
clusive evidence ground for the “ inference” that Randolph 
“ knew that Ames [who ordered him off] was a person 
in authority . . . ” concedes that Ames neither identified



24

himself nor disclosed his authority, and says expressly
that the statute “does not require this” 202 Va. 661,------ ,
119 S. E. (2d) 817, 819. The Supreme Court of Appeals de­
cided the other thirty-three cases without opinion, includ­
ing those in which the absence of notice to defendants was 
incontrovertible on the testimony.

From this history, it is impossible to be quite sure 
whether these cases were tried and affirmed on the substan­
tive theory that scienter is not an element in the charged 
crime, or whether, on the other hand, the lack of evidence 
of scienter (ranging in the cases all the way from a want 
of clear evidence up to the decisive refutation, on the Com­
monwealth’s own evidence, of the presence of scienter) was 
simply disregarded by the trier of fact. What is entirely 
clear is that one of these two things, or both of them in 
interplay, did happen. As a practical matter, in the con­
text of constitutionally protected free expression, they are 
equivalents, for on either alternative the eases up to now 
stand for the proposition that a man, engaged in the exer­
cise of his federally protected right of free expression, 
in a public place where he has been invited, must, at the 
command of any casual stranger who neither identifies him­
self nor states his authority, either cease his expression and 
leave, or run the chance of successful criminal prosecution. 
This is an unacceptable circumscription of the right of 
free expression.

It may be true that in these cases it did turn out, at the 
trial, that the persons issuing the request were authorized. 
But the effect of this rule on freedom of expression cannot 
practically be judged from the vantage point of hindsight. 
At the time the purported order to leave is issued, the per­
son subjected to it would be required, under this rule, either 
to run the chance of jail or to cease his federally protected 
expression at the command of one who may well be a mere



25

onlooker, and who does not claim to be anything else. Such 
a rule, requiring hairbreadth decisions on the spur of the 
moment, and on insufficient or non-existent data, would 
inhibit and cripple the exercise of rights to which this 
Court has given broad protection.

On this aspect, the present case is not materially dis­
tinguishable from Smith v. California, 361 U. S. 147, 4 
L. ed. (2d) 205, recently decided in this Court, except that 
in Smith the obscene books were at least in possession of 
the defendant, as part of his stock in trade, while in this 
case the authority of Thalhimer’s officers, or even their 
identity, was in no sense a matter of which the petitioners 
had any reason to have any special knowledge. This case, 
therefore, presents an even more appealing set of cir­
cumstances than Smith for application of the rule of the 
latter case. See also Wieman v. Updegraff, 344 U. S. 183, 
where the penalizing of unknowing membership in a sub­
versive organization was held to offend against the right 
of free political expression and association.

Surely, this Court would never hold that a speaker 
could be convicted for disobeying a command to cease 
speaking, given by a man in plain clothes who later turned 
out to be a policeman, though at the time he did not identify 
himself as such. Cf. Feiner v. New York, 340 U. S. 315. But 
the sustaining of the present convictions would require 
just that deference to persons who may or may not be the 
assistant managers of stores.

It should be added that the possibility of people in peti­
tioners’ situation being told to leave by strangers is not 
a mere philosophic one. The matters on which their protest 
was mounted are of high, excited, and quite general public 
interest in the affected communities.12 There was (and in a

12 See generally Pollitt, op. cit. supra note 3.



26

new case, would be) no reason for their assuming that any­
body who told them to get out was thereunto authorized 
by the Vice President in Charge of Store Operations.

C. Petitioners either were convicted without proof of 
an element of the crime— their knowledge or no­
tice of the authority of the persons ordering them 
to leave— or if such knowledge or notice is not 
an element of the crime, then they were convicted 
under a statute which they could not have known 
to embody the harsh and arbitrary rule that one 
who refuses to leave a public place at the com­
mand of a stranger does so at his peril. In either 
case, standards of the Fourteenth Amendment 
have been violated.

As petitioners have shown (point IB, supra) none of the 
records in these thirty-four cases shows that petitioners 
herein knew or had notice of the authority or position of 
the persons ordering them from the premises of Thal- 
himer’s, and some of them directly and unambiguously con­
tradict the imputation of such notice. As exhibited in 
the discussion under IB, supra, it cannot be surely known, 
from the manner in which this point was dealt with in the 
state courts, whether those courts considered the absence 
of notice to be immaterial, holding scienter to be not an ele­
ment of the crime, or whether, though taking it to be an 
element of the crime, they proceeded to conviction without 
evidence of its presence.

If the first alternative states the correct view, then the 
Virginia rule is unbelievably harsh. Whatever may be the 
case as to farmland or residential property, no one has any 
practical reason to presume that anyone who tells him to 
get out of a public place, to which the proprietor has in­
vited him, is authorized to do so, when no claim of such 
authority is made. Particularly is this true when his pres­
ence on such publicly used property is manifestly in con­



27

nection with a matter which is of high controversial interest 
to the members of the community in general. A statutory 
command to quit a public place when ordered to do so by a 
person who later turns out to have been in authority, absent 
so much as a claim of authority at the time, is, in a practical 
situation such as that which confronted petitioners, very 
close to a statutory command to quit a public place when­
ever ordered to do so by any stranger, since the alternative 
is running a risk of fine or imprisonment. Whether or not 
such a rule might be held substantively wanting in due 
process, cf. Lambert v. California, 355 U. S. 225, it is very 
clear that, in the framework of Anglo-American conceptions 
of crime, this statute gives no fair warning of such a rule. 
People normally go about in public places under an assump­
tion of general autonomy, obeying orders only from those 
who at least claim with some definiteness the right to give 
them. The petitioners, and others similarly situated, were 
and are entitled to assume that this general rule conditions 
the construction of this statute. As a matter of due process, 
more warning than its innocuous text ought to be required 
before persons are held to criminal liability under a rule so 
arbitrary. Connally v. General Construction Co., 269 IT. S. 
385; Lametta v. New Jersey, 306 U. S. 451.

As this Court has said:
“ The contention that an injury can amount to a crime 

only when inflicted by intention is no provincial or 
transient notion. It is as universal and persistent in 
mature systems of law as belief in freedom of the 
human will and a consequent ability and duty of the 
normal individual to choose between good and evil.” 
Morissette v. U. S., 342 U. S. 246, 250.

The utterances of the Morissette case, it is true, were de­
livered in the context of this Court’s responsibility to the



28

federal criminal law. But the holding and the opinion in­
escapably rest on an awareness of the pervasive character 
of the concept of scienter as an element in criminality.13 
The exceptions, fully canvassed in Morissette, 342 U. S. 252- 
260, have no application to the present case. It is this per­
vasiveness, and hence expectability, of the requirement of 
scienter, that makes it clear that a general statute like the 
present one, though failing explicitly to lay down the re­
quirement of scienter, gives, in the whole frame of civ­
ilized conceptions of criminality, no adequate warning of 
an absolute liability.

Trespass statutes like the present, far from falling in 
the class of “public welfare” statutes as to which absolute 
liability has been considered appropriate (see Morissette 
v. U. 8., supra, 342 U. S. 252-260)14 root in a long common 
law tradition which by no means equated civil and criminal 
trespass, but required for the latter such special circum­
stances as breach of the peace. Henderson v. Common­
wealth, 49 Va. (8 Grat) 708 (Va. Gen. Ct. 1852); Rex v. 
Storr, 3 Burr. 1698. Cf. American Law Institute, Model 
Penal Code, Tentative Draft No. 2, §206.53, Comment.

In the contexts, then, of our criminal law as a whole, 
of criminal trespass in particular, and of normal expecta­
tions in fact, this statute conveys inadequate warning of 
its drastic tenor, if its meaning is that scienter is no part 
of the crime charged.

If, on the other hand, the correct Virginia rule is that 
§18-225 applies only when the accused had knowledge or 
notice of the authority of the person ordering him off the 
property, then these convictions were had without the most

13 See Sayre, Public Welfare Offenses, 33 Columbia L. Rev. 55, 
55-6 (1933).

14I d at 73, 84-88.



elementary form of due process. Thompson v. Louisville, 
362 U. S. 199. The records themselves would not support 
conviction if notice is an element. (See point IB, supra, 
pp. 21-23.)

Thus, either one of two things must be true: 1) By a 
draconic construction of §18-225, petitioners are held to a 
standard of which they had no adequate warning; or 2) on 
a reasonable construction, the evidence fails at a crucial 
point to support the convictions. In either case, due proc­
ess is wanting.

II
The Public Importance of the Issues Presented.

Since February 1960, when these thirty-four petitioners 
sought service at eating facilities then reserved for white 
patrons of Thalhimer’s, Inc., were refused service there 
solely because of their race or color, and subsequently 
were arrested upon their refusal to leave without obtaining 
service, thousands of students have participated in similar 
protest demonstrations. Their protests spread to 65 south­
ern cities within two months and today they have engulfed 
the entire South.13 However, despite widespread gains in 
nondiscriminatory treatment at lunch counters and other 
places of public accommodation,16 most of these demon­
strations have, as in the cases at bar, culminated in arrests 
and criminal prosecutions which variously present as an 
underlying question the issues presented herein. Many of 
these cases have already reached the appellate courts of 15 16

15 See Pollitt, supra, note 3, at 317-336; Citizens in Protest: A  
Comment on the Student Demonstrations of 1960, 6 How. L. J. 
187-192 (1960) ; Foster, Race Relations in the South, 1960, 30 J. 
Negro Ed. 138, 147-149 (1961).

16 See Petition for Cert., p. 26, Briscoe v. Louisiana, infra note 17.



30

Louisiana,17 North Carolina,18 Florida,19 Maryland,20 Ar­
kansas,21 Alabama,22 Georgia,23 South Carolina,24 Texas,20

17 E.g., Garner v. Louisiana, cert, granted 29 U.S.L. Week 3276 
(No. 617, 1960 Term; renumbered No. 26, 1961 Term) ; Briscoe v. 
Louisiana, cert, granted Id. (No. 618, 1960 Term, renumbered No. 
27, 1961 Term ); Hoston v. Louisiana, cert, granted Id. (No. 619, 
1960 Term; renumbered No. 28, 1961 Term).

18 E.g., Avent v. North Carolina, petition for cert, filed, 29 U.S.L. 
Week 3336 (No. 943, 1960 Term; renumbered No. 85, 1961 Term ); 
Fox v. North Carolina, petition for cert, filed, Id. (No. 944, 1960 
Term; renumbered No. 86, 1961 Term) ; Williams v. North. Caro­
lina, petition for cert, filed 29 U.S.L. Week 3319 (No. 915, 1960 
Term; renumbered No. 82, 1961 Term).

19 E.g., Steele v. City of Tallahassee, cert, denied 29 U.S.L. Week 
3263 (No. 671, 1960 Term ); Steele v. City of Tallahassee, 120 
So.2d 619 (Fla. 1960) ; State ex rel. Steele v. Stoutamire, 119 So.2d 
792 (Fla. 1960).

20 E.g., Griffin v. State, decided June 8, 1961 (Md. Ct. App. No. 
248, September 1960 Term ); Drews v. State, 167 A.2d 341 (Md. 
1961), jurisdictional statement filed 29 U.S.L. Week 3286 (No. 
840, 1960 Term; renumbered No. 71, 1961 Term).

21 E.g., Briggs v. State, Ark. Sup. Ct. (No. 4992) with which 
Smith v. State (No. 4994) and Lupper v. State (No. 4997) have 
been consolidated.

22 E.g., DuBose v. City of Montgomery, 127 So.2d 845 (Ala. App. 
1961); cf. King v. City of Montgomery, 128 So.2d 340 (Ala. App. 
1961).

23 E.g., Samuels v. State, 118 S.E.2d 231 (Ga. App. 1961); 
Martin v. State, 118 S.E.2d 233 (Ga. App. 1961); Walker v. State, 
118 S.E.2d 284 (Ga. App. 1961) ; cf. King v. State, 119 S.E.2d 
77 (Ga. 1961).

24 E.g., see Petition for Cert., p. 27 note 15, Briscoe v. Louisiana, 
supra note 17.

25 E.g., Crossley v. State, 342 S.W.2d 339 (Tex. Crim. App. 
1961); Rucker v. State, 342 S.W.2d 325 (Tex. Crim. App. 1961); 
Briscoe v. State, 341 S.W.2d 432 (Tex. Crim. App. 1960) ; Tucker 
v. State, 341 S.W.2d 433 (Tex. Crim. App. 1960); Johnson v. 
State, 341 S.W.2d 434 (Tex. Crim. App. 1960) ; Rucker v. State, 
341 S.W.2d 434 (Tex. Crim. App. 1960).



31

and Virginia;26 countless others are still at the trial level 
in those states and also in Kentucky, Tennessee, West 
Virginia and Mississippi.

In addition to the mass litigation which has resulted 
from these student demonstrations, they have created new 
problems for local law enforcement authorities27 and they 
have spurred the enactment of new laws or more stringent 
amendments to existing laws.28 Moreover, the two national 
political parties were impelled in an election year to en­
dorse such demonstrations and pledge stronger sanctions 
for civil rights in their platforms.

It is therefore of great public importance that this Court 
consider the issues presented herein so that the courts 
below, and people everywhere, can be authoritatively ap­
prised regarding the constitutional limitations on state 
prosecutions of young people for engaging in this type 
of protest.

26 E.g., Thompson v. Commonwealth, petition for writ of error
filed July — , 1961; Henry v. Commonwealth, writ of error denied 
April 25, 1961 (No. 5093); ef. Tinsley v. Commonwealth, 202 Va. 
707, petition for cert, filed July 24, 1961, 30 U.S.L. W eek------ .

27 Cf. Boman v. Birmingham Transit Co., 280 F.2d 531 (5th 
Cir. 1960).

28 E.g., see Va. Acts, 1960, ch. 97; S.C. Acts, 1960, No. 743; 
La. Acts, 1960, Nos. 70, 77, 80; Dallas, Tex., 1960 Ordinance (6 
Race Rel. L. Rep. 317).



32

CONCLUSION

Wherefore, for the foregoing reasons, it is respect­
fully submitted that the petition or petitions for writ 
of certiorari should be granted.

Respectfully submitted,

Martin A. Martin 
Clarence W . Newsome 

118 East Leigh Street 
Richmond, Virginia

T hurgood Marshall 
J ack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle
New York 19, New York

Attorneys for Petitioners

Charles L. B lack, Jr. 
E lwood H. Chisolm 

Of Counsel



33

APPENDIX

I n  the

SUPREME COURT OF APPEALS OF VIRGINIA

at R ichmond

Present: All the Justices

Record No. 5233

R aymond B. R andolph, J r . 

Commonwealth oe V irginia

Opinion by Chief Justice J ohn W . E ggleston 
Richmond, Virginia, April 24,1961

F rom the H ustings Court of the City of R ichmond 
W. Moscoe Huntley, Judge

Raymond B. Randolph, Jr., hereinafter called the de­
fendant, was one of thirty-four Negroes arrested under 
separate warrants charging each with trespassing on the 
property of Thalhimer Brothers, Incorporated, in viola­
tion of Code, § 18-225, as amended. Each was convicted 
in the police court and upon appeal to the Hustings Court, 
with their consent and the concurrence of the court and 
the attorney for the Commonwealth entered of record, the 
several defendants were tried jointly by the court and 
without a jury. Upon consideration of the evidence the



34

court adjudged that each defendant was guilty of trespass 
as charged and assessed a fine of $20 against each. To 
review this judgment each defendant has filed a petition 
for a writ of error. We have granted the defendant, Ran­
dolph, a writ of error and deferred action on the other 
petitions until this case has been disposed of.

Section 18-225 of the Code of 1950 (as amended by Acts 
of 1956, ch. 587, p. 942; Acts of 1958, ch. 166, p. 218) reads 
as follows fi

18-225. Trespass after having been forbidden to 
do so.—If any person shall without authority of law 
go upon or remain upon the lands or premises of an­
other, after having been forbidden to do so by the 
owner, lessee, custodian or other person lawfully in 
charge of such land, or after having been forbidden to 
do so by sign or signs posted on the premises at a 
place or places where they may be reasonably seen, 
he shall be deemed guilty of a misdemeanor, and upon 
conviction thereof shall be punished by a fine of not 
more than one hundred dollars or by confinement in 
jail not exceeding thirty days, or by both such fine and 
imprisonment.”

On this appeal the defendant makes several contentions 
which overlap but may be fairly summarized thus: (1) The 
judgment is contrary to the law and the evidence in that 
there is no showing that the defendant was guilty of hav­
ing violated the statute; (2) The statute as here applied 
violated the rights guaranteed to the defendant by the 
fourteenth amendment to the Constitution of the United 
States.

1 This statute was further amended by the Acts of 1960, ch. 97, 
p. 113, and as so amended was recodified as Code, 1960 Replace­
ment Volume, § 18.1-173, by the Acts of 1960, ch. 358, p. 448.



35

The undisputed facts are before us on the evidence heard 
in open court and a stipulation of the parties. Thalhimer 
Brothers, Incorporated, a privately owned corporation, 
operates a large department store in the city of Richmond. 
It operates lunch counters in the basement and on the 
first floor and a restaurant on the fourth floor. Negro 
patrons are served at one of the lunch counters in the 
basement. Only white patrons are served at the other 
lunch counters and in the restaurant. The separation of 
these facilities for serving white and Negro customers, 
respectively, is well known to the patrons of the store.

On February 22, 1960, the defendant and the thirty-three 
other Negroes who were convicted in this proceeding went 
to the Thalhimer store and attempted to obtain service at 
the facilities reserved for the use of white patrons. Be­
cause of their race they were refused service at these 
facilities.

Ben Ames, the personnel manager of the store and an 
employee of the corporation which operates it, talked with 
the defendant who was then at the entrance to the restau­
rant on the fourth floor, a facility reserved for white pa­
trons. To use Ames’ words, “ I asked him to leave our 
store and explained to him, if he did not, that I would 
authorize the issuance of a warrant for his arrest.” While 
the defendant made no reply to this request, he refused 
to leave the store. It is undisputed that Ames took this 
action at the direction of Newmian Hamblett, the vice- 
president of Thalhimer Brothers, Incorporated, and the 
“director of operations” of the store. Ames did not identify 
himself to the defendant, who, however, did not question 
his authority. In the meantime, as the defendant testified, 
he had obeyed the command of Hamblett, whom he identi­
fied by name at the trial, to stand in line near the restau­
rant entrance and wait his turn. When the defendant 
refused to leave the store, Ames, at the further direction



36

of Hamblett, procured the warrant of arrest which is the 
basis of this prosecution.

Viewed in the light most favorable to the Common­
wealth, the prevailing party, the evidence is sufficient to 
sustain the judgment of the lower court that the defendant 
was guilty of violating the statute. There is no evidence 
to support his contention that he was arrested because of 
his “ race or color.” On the contrary, the evidence shows 
that he was arrested because he remained upon the store 
premises after having been forbidden to do so by Ames, 
the duly authorized agent of the owner or custodian.

It is true that Ames did not identify himself or dis­
close his authority to the defendant. Aside from the fact 
that the statute does not require this, the evidence on 
behalf of the Commonwealth supports the inference that 
the defendant knew that Ames was a person in authority. 
As has been said, Ames testified that he asked the defen­
dant to leave “ our store” and explained to him that he 
would be arrested if he did not do so. The defendant did 
not question Ames’ authority. It was obvious to him that 
Ames was acting in conjunction with Hamblett, the vice- 
president and director of operations of the store, whom 
the defendant apparently knew and identified by name. 
The defendant himself testified that he refused to leave 
the store after having been asked by Ames to do so.

Thus, it plainly appears from the evidence that the de­
fendant violated the statute in that he willfully and pur­
posely remained on the premises after he had been for­
bidden to do so by the owner’s duly authorized agent.

The statute does not purport to be and is not a racial 
segregation law. It forbids “any person,” irrespective of 
his race or color, “without authority of law” to “go upon 
or remain upon the lands or premises of another,” after 
having been forbidden to do so. As we said in Hall v. 
Commonwealth, 188 Va. 72, 77, 49 S. E. 2d 369, 371 (appeal



37

dismissed 335 IT. S. 875, 69 S. Ct. 240, 93 L. ed. 418), “ The 
only purpose of this law is to protect the rights of the 
owners or those in lawful control of private property.” 
In that case we upheld the constitutionality of the statute 
as applied to a member of the sect of Jehovah’s Witnesses 
who, after proper warning, refused to leave a private 
apartment building.

See also, Henderson v. Trailway Bus Company, D. C. 
Va., F. Supp. (decided March 24, 1961, by Bore- 
man, Circuit Judge, and Lewis and Bryan, District Judges), 
upholding the constitutionality of this statute as amended 
and recodified as Code, 1960 Replacement Volume, § 18.1- 
173.

The defendant does not contend that the statute is un­
constitutional on its face. His argument is that the man­
ner in which it was applied, under the circumstances of 
this case, amounted to a denial of rights guaranteed to him 
by the Fourteenth Amendment. First, he says, since the 
store was “ open to the public” and he was there as a 
“ business invitee,” the refusal to serve him because of his 
“ race or color” was a denial of his constitutional rights. 
In recent years this same argument has been advanced in 
a number of jurisdictions and without exception has been 
rejected. See State v. Clyburn, 247 N. C. 455, 101 S. E. 
2d 295; State v. Avent, N. C. , 118 S. E. 2d 47; 
Williams v. Howard Johnson’s Restaurant, 4 Cir., 268 F. 
2d 845; Slack v. Atlantic White Tower System, Inc., D. C. 
Md., 181 F. Supp. 124, affirmed 4 Cir., 284 F. 2d 746; Griffin 
v. Collins, D. C. Md., 187 F. Supp. 149; Wilmington Park­
ing Authority v. Burton, Del. , 157 A. 2d 894.2

The holding in these cases is based upon the principle 
that the Fourteenth Amendment “ erects no shield against

2 Reversed on other grounds. U. S. , S. Ct. 
L. ed. (April 17, 1961).



38

merely private conduct, however discriminatory or wrong­
ful” (.Shelley v. Kraemer, 334 U. S. 1, 13, 68 S. Ct. 836, 
842, 92 L. ed. 1161, 3 A. L. R. 2d 441), and that in the 
absence of statute the operator of a privately owned busi­
ness may accept some customers and reject others on 
purely personal grounds. See Alpaugh v. Wolverton, 184 
Va. 943, 36 S. E. 2d 906, where the principle was applied 
in the operation of a privately owned restaurant.

The controlling principle is thus stated in State v. Avent, 
supra: “ In the absence of a statute forbidding discrimi­
nation based on race or color in restaurants, the rule is 
well established that an operator of a privately owned 
restaurant privately operated in a privately owned build­
ing has the right to select the clientele he will serve, and 
to make such selection based on color, race, or white people 
in company with Negroes or vice versa, if he so desires.” 
118 S. E. 2d, at page 51.

It is “ well settled that, although the general public have 
an implied license to enter a retail store, the proprietor 
is at liberty to revoke this license at any time as to any 
individual, and to eject such individual from the store if 
he refuses to leave when requested to do so.” Annotation, 
9 A. L. R. 379. See also, Annotation, 33 A. L. R. 421. To 
the same effect see Brookside-Pratt Mining Co. v. Booth, 
211 Ala. 268,100 So. 240, 33 A. L. R. 417.

As was said in Henderson v. Trailway Bus Company, 
supra, F. Supp. , “ [T]he occupant may lawfully 
forbid any and all persons, regardless of his reason or their 
race or religion, to enter or remain upon any part of his 
premises which are not devoted to a public use.”

Hence, in the present case, the action of Thalhimer 
Brothers, Incorporated, in refusing to serve the defendant 
in its restaurant and in forbidding him to remain on its 
premises violated none of his constitutional rights.



39

The defendant next contends that when the owner of the 
restaurant, through its employee, procured the warrant for 
the defendant’s arrest, this constituted State action to 
enforce a discriminatory rule or regulation of the restau­
rant contrary to the provisions of the Fourteenth Amend­
ment. A similar argument was advanced and rejected in 
State v. Glyburn, supra, 101 S. E. 2d, at page 299; State 
v. Avent, supra, 118 S. E. 2d, at page 54; Griffin v. Col­
lins, supra, 187 F. Supp., at pages 153, 154. See also, 47 
Virginia Law Review 105, 119. Here the purpose of the 
judicial process is not to enforce a rule or regulation of the 
operator of the restaurant. Its purpose is to protect 
the rights of the proprietor who is in lawful possession of 
the premises and to punish the trespasser, irrespective of 
his race or color. See Hall v. Commonweath, supra, 188 Va. 
72, 49 S. E. 2d 369.

It would, indeed, be an anomalous situation to say that 
the proprietor of a privately owned and operated busi­
ness may lawfully use reasonable force to eject a trespasser 
from his premises and yet may not invoke judicial process 
to protect his rights.

The judgment, being plainly right, is Affirmed.



40

VIRGINIA:

In the Supreme Court of Appeals held at the Supreme 
Court of Appeals Building in the City of Richmond on 
Monday the 24th day of April, 1961.

Record No. 5233

R aymond B. R andolph, Jb.,

Plaintiff in error,

against

Commonwealth oe V irginia,

Defendant in error.

Upon a writ of error and supersedeas to a judg­
ment rendered by the Hustings Court of the City 
of Richmond on the 26th day of May, 1960.

This day came as well the plaintiff in error, by counsel, 
as the Attorney General on behalf of the Commonwealth, 
and the court having maturely considered the transcript 
of the record of the judgment aforesaid and arguments of 
counsel, is of opinion, for reasons stated in writing and 
filed with the record, that there is no error in the judg­
ment complained of. It is therefore adjudged and ordered 
that the said judgment be affirmed, and that the plaintiff 
in error pay to the Commonwealth thirty dollars damages, 
and also her costs by her expended about her defense here­
in.

Which is ordered to be forthwith certified to the said 
hustings court.



41

VIRGINIA:

In the Supreme Court of Appeals held at the Supreme 
Court of Appeals Building in the City of Richmond on 
Monday the 24th day of April, 1961.

The petition of Leroy M. Bray, Jr., for a writ of error 
and supersedeas to a judgment rendered by the Hustings 
Court of the City of Richmond on the 26th day of May, 
1960, in a prosecution by the Commonwealth against the 
said petitioner for a misdemeanor, having been maturely 
considered and a transcript of the record of the judgment 
aforesaid seen and inspected, the court being of opinion 
for the reasons stated in the case of Raymond B. Randolph, 
Jr. v. Commonwealth of Virginia, Record No. 5233, that 
the said judgment is plainly right, doth reject said peti­
tion and refuse said writ of error and supersedeas, the 
effect of which is to affirm the judgment of the said hust­
ings court.

A  Copy,

Teste:

/ s /  H. G. T u rn er

Clerk



42

VIRGINIA:

In the H ustings Court of the City of R ichmond

Commonwealth of V irginia

v.

F rank G. P inkston, et al.

The defendant, on February 22nd, 1960, and a number of 
other students, entered Thalhimer’s Department Store, a 
private corporation, located in the City of Richmond, Vir­
ginia, and attempted to obtain service at its eating facili­
ties reserved for white patrons. Each was refused service, 
and each was requested to leave the premises after being 
informed they would be arrested for trespassing should 
they fail to do so. Upon their failure to leave, and after 
being further advised that they would be arrested should 
they fail to do so, warrants were obtained and he and 
thirty-three other negroes were arrested.

There was a sale in progress at Thalhimers on the day of 
the arrest, and there were a large number of people in the 
store, so many in fact, it became necessary to call upon 
the Richmond Fire Department to keep the aisles open for 
traffic. One student (see Transcript—Ronald Smith, page 
11) was requested by a representative of the fire depart­
ment to ask his group “ to move back and keep enough room 
because of fire rules . . .

Since all of the defendants refused and chose not to leave 
the premises Mr. Newman Hamblett, Vice-President and 
Director of Operations for Thalhimers and other authorized 
store officials caused warrants to be issued for their arrest.



43

The thirty-four eases are before this Court on appeal 
from Police Court where each defendant was tried and 
found guilty of trespassing. By agreement of counsel the 
transcripts of the evidence taken in Police Court are to be 
taken and read as the evidence before this Court in these 
cases. The issues are the same in each case. Oral argu­
ments have been made and briefs have been submitted.

Since the briefs filed in these proceedings fully cover the 
law on the subject the Court does not deem it necessary to 
review the many cases cited therein in this opinion.

Section 18.225 of the Code of Virginia, and I shall quote 
only the pertinent part thereof, prior to its amendment by 
the 1960 session of the General Assembly of Virginia, 
provided:

“If any person shall without authority go upon or 
remain upon the lands of another, after having been 
forbidden to do so by the owner, lessee, custodian or 
other person lawfully in charge of such land * * * 
he shall be deemed guilty of a misdemeanor * * * ”

The evidence in this case unequivocally establishes that 
the defendants were requested to leave the property of 
Thalhimer’s by a duly authorized employee; but chose 
instead to remain upon the premises.

The record further establishes that Thalhimers is a 
private corporation, and was operated by private owners 
and with private capital. It is under no duty to serve every­
one who enters its store. It may accept some customers 
and reject others on purely personal grounds.

The most recent case on the subject supporting this 
right is that of Wilmington Parking Authority v. Butler, 
157 A 2nd 894, (Delaware 1960), and is an action based 
on a declaratory judgment. It was contended that Eagle 
Coffee Shop, Inc., the lessee of Wilmington Parking Au­
thority, could not operate its restaurant business in the



44

parking structure at Ninth and Shipley Streets, Wilming­
ton, in a racially discriminatory manner. The action was 
commenced by a negro who was denied service by Eagle 
solely because of his race, color, or ancestry; this he argued 
abridged his rights guaranteed by the Fourteenth Amend­
ment to the Constitution of the United States.

The Court reviewed the many recent decisions of Fed­
eral courts dealing with racial matters beginning with 
Brown v. Board of Education of Topeka, 347 U. S. 483; 
Nash v. Air Terminal Service, Inc., 85 F. Supp. 545; Der- 
rington v. Plummer, 240 F. 2nd 922 (5 cir) and others.

Judge Wolcott, speaking for the Court, on page 899, said:

“ It thus seems apparent to us from the cited au­
thorities that the Fourteenth Amendment is applicable 
to the operation of a facility, either public or quasi­
public in nature, if either the facility has been erected 
and is maintained with public money, or if the opera­
tion of such facility is conducted under public auspices 
or control.”

And again on pages 901 and 902 paragraphs (3), (4), (5) 
and (6) the Court said:

“We neither condemn nor approve such private dis­
criminatory practices for the courts are not keepers of 
the morals of the public. We apply the law, whether 
or not that law follows the current fashion of social 
philosophy.

“ Particularly is this true of a state court which is 
called upon in this field to apply rules made for us by 
the Supreme Court of the United States which, in the 
case of this state, have resulted in the discard of a 
large portion of our local law dealings with the emo­
tional subject of racial relations. We are, of course, 
bound to follow Federal decisions, but we think we are



45

equally bound, when they erode our local law, not to 
extend them to a point beyond which they have not as 
yet gone.

“ It follows, therefore, that Eagle, in the conduct 
of its business, is acting in a purely private capacity. 
It acts as a restaurant keeper and, as such, is not re­
quired to serve any and all persons entering its place 
of business, any more than the operator of a book 
store, barber shop, or other retail business is required 
to sell its product to everyone. This is the common 
law, and the law of Delaware as restated in 24 Del. 
C. paragraph 1501 with respect to restaurant keepers. 
10 Am. Jur., Civil Rights, paragraphs 21; 22; 52 Am. 
Jur. Theatres paragraph 9; Williams v. Howard 
Johnson’s Restaurant 4 Cir 268 F. 2nd 845.”

After reviewing the briefs submitted by counsel this 
Court is of the opinion that no Constitutional rights of the 
defendants have been violated, and that Thalhimer’s was 
fully within its rights in denying service to the defendants. 
The Court is of the further opinion that the failure of the 
defendants to leave the premises when requested by an 
official of Thalhimers constituted trespass under Section 
18.225 of the Code of Virginia.

/ s /  Moscoe H untley

5/26/60



J O