Ford v. Morris Brief of Appellants

    I n  t h e

United States (Enurt nf Apjipate
F or t h e  S ix t h  C ir c u it

No. 16,502

E vandeb F ord, J r ., A lfred  0 .  Gross, J am es H arrison  
S m it h , E r n e s t in e  H il l , J o h n n ie  M ay R ogers, C h a rles  
E dward P a tterso n , E dgar L ee  J am es a n d  K a tie  J ean  
R obertson,

Appellants,

H onorable W il l ia m  N. M orris, J r ., Sheriff, Shelby County, 
a n d  the M e m p h is  B a il  B ond A gen cy ,

Appellees.
appeal from the  united states district court

FOR THE WESTERN DISTRICT OF TENNESSEE

BRIEF OF APPELLANTS

J ack  G reenberg  
J am es M. N abrit , III 
J o h n  W . W a lk er  
M elv y n  Z arr

10 Columbus Circle 
New York, N. Y. 10019

A n t h o n y  G. A m sterdam  
3400 Chestnut Street 
Philadelphia, Penn. 19104

B u sse l l  B . S ugarm on
A . W . W il l is
B . L. H ooks

H. T. L ockard 
B . F .  J o nes
I . H. M u r p h y

588 Vance Avenue 
Memphis, Tennessee

Counsel for Appellants



INDEX TO BRIEF

PAGE

Questions Presented ........ ......-.............. .......................  1

Statement of F acts........................—..............................  2

A rgument

I. Where the sheriff held a capias for appellants’ 
arrest pursuant to affirmance of their convic­
tions, the incidents of their hail on professional 
bond pending appeal amount to “custody” 
sufficient to support habeas corpus ........... ...... 5

II. Appellants’ convictions under Tenn. Code Ann. 
§39-1204 denied them due process of law be­
cause there was either no evidence of their 
commission of crime or, alternatively, the ap­
plication of the statute failed to furnish them 
fair warning of the conduct proscribed and en­
forced racial segregation in public facilities in 
violation of the equal protection clause............ 9

III. Application by the state trial judge of an er­
roneous standard of federal constitutional law 
requires that appellants’ convictions be vacated 13

IV. The court below erred in denying appellants
an evidentiary hearing and, further, in failing 
to make an independent determination of the 
ultimate constitutional issues on the record....  15

Conclusion 17



T able oe C ases

Baggett v. Bullitt, 377 U. S. 360 (1964) ......................... 11
Barr v. Columbia, 378 TL S. -----  (1964) ________ 10,12
Barrows v. Jackson, 346 II. S. 249 (1952) .............. ......  12
Bouie v. Columbia, 378 IT. S .-----  (1964) _______ __  11
Brown v. Board of Education, 347 U. S. 294

(1954) ............... ........................... ............. ......... 11-12,13
Brown v. Bayfield, 320 F. 2d 96, 99 (5th Cir. 1963,

cert, denied 375 IT. S. 902 (1963) ...............................  6
Burton v. Wilmington Parking Authority, 365 IT. S.

715 (1961) ................ ............................................... 12,13

Cole v. Arkansas, 333 IT. S. 196 (1948) ......... ............ . 14
Cosgrove v. Winney, 174 IT. S. 64 (1899) ........... .........  8
Cox v. Louisiana, 379 IT. S. 536 (1965)    ...........  11
Fay v. Noia, 372 IT. S. 391 (1963)  ........ .....................  17
Fitzpatrick v. Williams, 46 F. 2d 40 (5th Cir. 1931) .... 8

Garner v. Louisiana, 368 IT. S. 157 (1961) .............. 10,12
Gayle v. Browder, 352 IT. S. 903 (1958) ........................  12

Holmes v. Atlanta, 350 U. S. 879 (1958) ...... ..............  12

Jackson v. Denno, 378 IT. S. 368 (1964)  ..................  16
Jones v. Cunningham, 371 U. S. 236 (1963) .........5-6, 7, 8, 9

Lombard v. Louisiana, 373 IT. S. 257 (1963) ...........12,15

Malloy v. Hogan, 378 U. S. 1 (1964) ........... ................  16
Muir v. Louisville Park Theatrical Association, 202 

F. 2d 275 (6th Cir. 1953, judgment vacated and re­
manded, 347 U. S. 971, 1954) ................................ . 12

i i

PAGE



NAACP V. Button, 871 U. S. 415 (1963) ..................... 11

Peterson v. California, 331 P. 2d 24 (1958), app. dism’d
360 U. S. 314 (1959) ............................... .......... ........ 6

Peterson v. City of Greenville, 377 U. S. 244 (1963) ....12,15

Robinson v. Florida, 378 U. S. 153 (1964) ..............12,15
Reese v. United States, 9 Wall 13 (1869) ....... .............  8
Rogers v. Richmond, 365 U. S. 534 (1961) .............. 13,14

Shelly v. Kraemer, 334 IT. S. 1 (1948) .................   12
Smith v. California, 361 U. S. 147 (1959) .........     11
Stack v. Boyle, 342 U. S. 1 (1951) ........   7
State v. Spring, 176 S. W. 2d 817 (1944) ........  8
Stromberg v. California, 283 U. S. 359 (1931) ..............  11

Taylor v. Taintor, 16 Wall 366 (1872) ................ ........ 8
Thompson v. Louisville, 362 U. S. 199 (1959) ..............  10
Thornhill v. Alabama, 310 TJ. S. 88 (1940) .................  11
Townsend v. Sain, 372 U. S. 293 (1963) ..............15,16,17
Turner v. City of Memphis, 369 U. S. 350 (1962) ........... 12

United States v. Trunko, 189 F. Supp. 559 (E. D. Ark., 
1960) ...... ....................................................................  8

Wales v. Whitney, 114 U. S. 564 (1885) ........................  5
Wallace v. State, 269 S. W. 2d 78 (1954) ........ ............  8
Watson v. City of Memphis, 373 U. S. 526 (1963) ..11,15,16

Ill

PAGE



IV

Other A uthorities

2 Hale, P leas of the Crown 124 (1st American Ed. 
Philadelphia, 1847) ................ ...................................  7

2 Pollock and Maitland, H istory  oe E n g l is h  L aw  589 
(2d Ed. 1952) .......... ..................................................  7

S tatutes

28 IT. S. C. §2241 (c) (3 ) ............................................. ............... .9,17
Tennessee Code Annotated, §39-1204 .............................. .......9 , 10

PAGE



Isr the

(&mvt rtf A ppa ls
F oe t h e  S ix t h  C ie c u it

No. 16,502

E vander F oed, J r ., A lfred  0 .  Gross, J am es  H arrison  
S m it h , E r n e s t in e  H il l , J o h n n ie  M ay R ogers, C h a rles  
E dward P a tterso n , E dgar L e e  J am es a n d  K a tie  J ea n  
R obertson ,

Appellants,

H onorable W il l ia m  N. M orris, J r., Sheriff, Shelby County, 
and the M e m p h is  B a il  B ond A gen cy ,

Appellees.
appeal from the united states district court

FOR THE WESTERN DISTRICT OF TENNESSEE

BRIEF OF APPELLANTS

Q uestions P resented

I. Were appellants, who had been admitted to bail on 
professional surety bonds pending appeal of state crim­
inal convictions, but for whose arrest the sheriff held a 
capias issued pursuant to affirmance of the convictions, so 
restrained of their liberty as to be in “custody” within the 
federal habeas corpus statute, 28 U. S. C. §2241(c)(3)? 
The court below answered no. The answer should have been 
yes.

II. Were appellants denied due process under the Four­
teenth Amendment because their state convictions were 
either based upon no evidence or upon an application of



2

the state criminal statute which failed to furnish fair warn­
ing of the conduct proscribed? The court below did not 
answer this question. The answer should have been yes.

III. Were appellants, by their convictions, deprived of 
their right of freedom from state enforced racial segrega­
tion guaranteed by the Fourteenth Amendment? The court 
below did not answer this question. The answer should 
have been yes.

IY. Were appellants entitled by the standards of 
Townsend v. Sain-, 372 U. S. 293 (1963), to an evidentiary 
hearing in the court below? The court below answered no. 
The answer should have been yes.

V. Did the application by the state trial judge of an 
erroneous standard of federal constitutional law require 
reversal of appellants’ convictions? The court below an­
swered no. The answer should have been yes.

VI. Did the court below err in failing* to make indepen­
dent findings on the ultimate constitutional issues presented 
by appellants’ habeas corpus petition?

Statem ent o f  Facts

On August 30, 1960 (3a), the Assembly of God Church 
in Memphis, Tennessee (2a) held a city-wide Youth Rally 
at Overton Park Shell (2a) an open air auditorium located 
in a publicly owned park (19a). The church group had 
leased the auditorium from the City of Memphis (3a, 26a) 
and had published advertisements of the services which 
were to consist of singing, devotions and a special film 
(2a). Negroes were not excluded from the public invita­
tion because, according to a church official, there were no



3

Negro members in the Assembly of God Church and none 
were expected to attend (8a, 9a). The services began at 
7 :30 P.M. with from 400 to 700 people present (3a).

About 15 minutes after the service began and while the 
group was singing hymns, a group of 13 or 14 Negroes 
(4a, 11a) including the appellants entered and was greeted 
by the head usher for the group who testified: “I asked 
them out of courtesy if they would not remain, since this 
was a segregated meeting, featuring* the young people of 
the Assembly of God.” When the Negroes refused to leave, 
the usher directed them to take seats on a segregated basis 
at the rear of the building (11a). Petitioner Ford told the 
usher: “No, we are certainly not going to do that, . . . ” 
(22a), and according to the usher, directed the group to 
“scatter out” (11a).

The Negroes proceeded down into the audience, and 
seated themselves in couples among the gathering. They 
were quiet, properly dressed, used no profanity and made 
no noise while taking seats (14a, 15a, 23a, 24a). Never­
theless, according to State witnesses, as the Negroes moved 
in, white people began to move, and some left (12a) be­
cause a church official reported “they were not accustomed 
to attending* services with Negroes” (5a). This moving 
and shifting created some disturbance (5a, 7a). However, 
the service continued until the minister in charge of the 
group, Rev. Scruggs, called the police (5a, 6a). When the 
police arrived about five or ten minutes later, most of the 
white people were settled, an offering may have been re­
ceived, the lights had been lowered, and the movie was in 
progress. Nonetheless, when the police arrived, the lights 
were turned on again and the movie was stopped so that 
the police could find the petitioners (9a). The police were 
instructed to locate colored people in the Shell, inform



4

them they were under arrest and bring them outside (16a). 
Police officers testified that fourteen Negroes, male and 
female were arrested (17a). All were seated quietly when 
the police arrived, were properly dressed, used no loud or 
profane language, engaged in no boisterous or indecent 
conduct, and offered no resistance to arrest (18a).

Rev. Scruggs contended that he had appellants arrested 
not because they were Negroes, but because they created 
a disturbance when they refused to take seats in the rear 
and “decided to . . . intermingle with the crowd” (9a). He 
concluded that the disturbance grew out of the fact that 
the white people were not accustomed to attending services 
with Negroes (7a).

“Q. And this disturbed the gathering, in this sense 
of the word because they were Negroes? A. I suppose 
that’s true; yes” (7a).

Following their arrest, the appellants were tried and con­
victed of violating Section 39-1204, Tennessee Code Anno­
tated.

Appellants, with the exception of Katie Jean Robertson, 
were tried on June 19th and 20th, 1961. and were sentenced 
to serve 60 days in the Shelby County Penal Farm, and 
fined $200. Petitioner Katie Jean Robertson was tried on 
September 25, 1961 and was sentenced to serve 60 days and 
fined $175.00.

The Supreme Court of Tennessee affirmed the convictions 
finding that appellants’ actions created a disturbance of 
the religious service and therefore violated the statute 
(32a-40a). Moreover, the Court found that such actions 
were willful and designed to create an incident. The Court 
stated that the issue of whether Negroes could be segregated 
at the service held in a public facility was not presented



5

by tins case and the convictions did not violate any consti­
tutional rights guaranteed by the Fourteenth Amendment 
to the petitioners.

Pending the appeal to the Supreme Court of Tennessee, 
appellants had been admitted to bail on professional surety 
bonds (56a). Following affirmance of their convictions, a 
capias issued to the sheriff for their arrest in execution of 
sentence (56a). They thereupon presented to the federal 
district court below their petition for writ of habeas corpus, 
naming the sheriff and bonding company as respondents. 
The district court refused an evidentiary hearing on the 
petition and, accepting the conclusions of fact and law of 
the Tennessee courts, denied the petition in an order ac­
companied by a written opinion (55a-66a).

ARGUMENT

I.

W here the sheriff h eld  a capias fo r  appellants’ arrest 
pursuant to affirm ance o f  their convictions, the in c i­
dents o f  their hail on  p rofession al bond pending appeal 
am ount to  “ custody” sufficient to support habeas 
corpus.

The question has been much mooted whether a state 
criminal defendant bailed on one or another of the various 
forms of bond is in “custody” for purposes of habeas 
corpus. The old cases cited by the court below (57a) hold 
that bail status generally is not “custody,” but these deci­
sions reflect an outmoded concept of custody as actual 
physical confinement, E.g., Wales v. Whitney, 114 U. S. 564 
(1885). The Supreme Court has recently repudiated that 
concept and has held that the use of habeas corpus is “not 
restricted to situations in which the applicant is in actual, 
physical custody.” Jones v. Cunningham, 371 U. S.



6

236, 239 (1963).) As the Fifth Circuit has since noted, the 
Jones decision substantially affects the custody require­
ment of 28 U. S. C. §2241 and fairly puts in question the 
authority of the earlier cases. Brown v. Bayfield, 320 F. 2d 
96, 99 (5th Cir. 1963), cert, denied, 375 U. S. 902 (1963). 
And see Peterson v. California, 51 Cal. 2d 177, 331 P. 2d 
24 (1958), app. disrn’d, 360 IT. S. 314 (1959).

Were it necessary to reach the question in this case, ap­
pellants would strongly urge that by the reasoning of 
Jones a Tennessee criminal defendant bailed on profes­
sional surety bond is eo ipso in “custody” within the fed­
eral habeas corpus jurisdiction. In Jones, the Supreme 
Court held that a Virginia convict’s parole status was 
enough to support the habeas jurisdiction of the district 
court. Although the convict had been returned to the 
community, the court found significant restraints on his 
liberty because of his conviction. He could not drive a car 
without the permission of his parole officer, to whom he 
was required to report periodically; and under the terms 
of his parole he was required to keep good company and 
good hours, work regularly, keep away from undesirable 
places and live a clean, honest and temperate life. The 
Supreme Court determined that:

Such restraints are enough to invoke the help of the 
Great Writ . . . (I)ts scope has grown to achieve 
its grand purpose—the protection of indivduals against 
erosion of their rights to be free from wrongful re­
straints upon their liberty. While petitioner’s parole 
relieves him from immediate physical imprisonment, 
it imposes conditions which significantly confine and 
restrain his freedom; this is enough to keep him in 
the custody of the members of the Virginia Parole 
Board within the meaning of the habeas corpus statute. 
(371 U. S. at 243.)



7

Critical to the Court’s conclusion was its recognition that 
a parolee:

must not only faithfully obey [his parole] . . . restric­
tions and conditions but he must live in constant fear 
that a single deviation, however slight, might be enough 
to result in his being returned to prison to serve out 
the very sentence he claims was imposed upon him in 
violation of the United States Constitution. He can 
be rearrested at any time the Board or parole officer 
believes he has violated a term or condition of his 
parole, and he might be thrown back in jail to finish 
serving the allegedly invalid sentence with few, if any, 
of the procedural safeguards that normally must be 
and are provided to those charged with crime (371 U. S. 
at 242).

This language, of course, precisely describes the circum­
stances of a bailed criminal defendant. The whole purpose 
of the bail arrangement is to impose some “restraints on 
a man’s liberty, restraints not shared by the public gen­
erally . . . ,” Jones v. Cunningham, supra, 371 U. S. at 240. 
“ . . . Like the ancient practice of securing the oaths of 
responsible persons to stand as sureties for the accused, 
the modern practice of requiring a bail bond or the deposit 
of a sum of money subject to forfeiture serves as an addi­
tional assurance of the presence of the accused. . . . ” Stack 
v. Boyle, 342 U. S. 1, 5 (1951). Not only is the theory of 
bail that “he that is bailed, is in supposition of law still in 
custody,” 2 H ale, P leas oe the Crown 124 (1st American 
ed., Philadelphia 1847)—indeed, an expressive historical 
phrase speaks of the sureties as “ ‘the Duke’s living 
prison,’ ” 2 P ollock & Maitland, H istory of E nglish L aw 
589 (2d ed. 1952)—but, as a practical matter, the sureties

“ [W]henever they choose to do so, . . . may seize him 
and deliver him up in their discharge; and if that can­



not be done at once, they may imprison him until it 
can be done. . . . ‘The bail have their principal on a 
string, arid may pull the string whenever they please, 
and render him in their discharged . . . (Taylor v. 
Taintor, 16 Wall. 366, 371-372 (1872)).

See also Reese v. United States, 9 Wall. 13, 21 (1869) (alter­
native ground); Cosgrove v. Winney, 174 U. S. 64, 68 (1899) 
(alternative ground); Fitzpatrick v. Williams, 46 F. 2d 40 
(5th Cir. 1931) ; United States v. Trunko, 189 F. Supp. 559 
(E. D. Ark. 1960) ; and see State v. Spring, 176 S. W. 
2d 817 (1944), (“They [the sureties] could have surren­
dered the defendant and procured their release at any 
time. . . .”). See also, Wallace v. State, 269 S. W. 2d 
78 (1954). Obviously, the surety’s power to retake
his principal is both more arbitrary and more summary 
than that of the parole officer considered in Jones; and, in 
addition, where a professional bondsman is involved, the 
power of state officers to abuse the surety’s unlimited rights 
of arrest is immeasurable, because the bondsman’s liveli­
hood immediately depends upon the favor of local sheriffs, 
prosecuting lawyers and judges.

However, the present case hardly need present the vexing 
question whether Jones has overruled sub silentio the au­
thorities relied on by the district court. Those cases are 
true bail cases—cases in which the habeas petitioner was 
released on bond for appearance at a date which was still 
in futuro at the time of filing of the habeas corpus petition. 
Appellants’ is no such case. The bail on which they were 
enlarged was bail pending appeal; their appeal has been 
had; their convictions (unconstitutionally, they assert) have 
been affirmed; a capias for their arrest pursuant to the 
affirmance was already in the hands of the respondent 
sheriff at the time the petitions below were filed. Nothing 
remained—no legal impediment nor requirement of legal



9

proceeding—before the sheriff could seize them in execu­
tion of the capias. In this posture, it is patent that peti­
tioners “might be thrown back in jail to finish serving the 
allegedly invalid sentence with [none whatever] . . .  of 
the procedural safeguards that normally must be and are 
provided to those charged with crime.” Jones v. Cunning­
ham, supra; a fortiori from Jones, they were in custody 
within the meaning of 28 IT. S. C. §2241 and amenable to 
the district court’s writ.

II.

A ppellants’ convictions under T enn. Code Ann. §39- 
1 2 0 4  denied  them  due process o f  law because there  
was either no  ev idence o f  their com m ission  o f  crim e  
or, alternatively, the application  o f  the statute fa iled  
to fu rn ish  them  fair w arning o f  the conduct proscribed  
and en forced  racial segregation in  pub lic facilities in  
vio lation  o f  the equal protection  clause.

Tenn. Code Ann. §39-1204 provides:
If any person willfully disturb or disquiet any as­

semblage of persons met for religious worship, or for 
educational or literary purposes, or as a lodge or for 
the purpose of engaging in or promoting the cause of 
temperance, by noise, profane discourse, rude or in­
decent behavior, or any other act, at or near the place 
of meeting, he shall be fined not less than twenty dol­
lars ($20.00) nor more than two hundred dollars 
($200.00), and may also be imprisoned not exceeding 
six (6) months in the county jail.

A. It is appellants’ contention that the court below erred 
in relying on the findings of fact in the state court record 
and in denying appellants an evidentiary hearing (see



1 0

Argument IY, infra). However, a more serious error 
infects the judgment of the court below, compelling re­
versal by this Court, for the state court record errone­
ously relied upon below itself reveals no evidence of crime. 
That record, construed most favorably to appellee, merely 
shows the following “objective acts.” Appellants and 
several other Negroes entered an auditorium located in 
a public park to attend a religious rally advertised as open 
to the public. They were not noisy, used no profanity, and 
indulged in no rude or indecent behavior. Upon their 
entrance, they were met by a white church official who 
first tried to exclude them by saying that it was a “segre­
gated” meeting, and, upon being unsuccessful, then tried 
to seat them on a segregated basis, apart from the white 
persons in the audience, at the rear of the auditorium. 
Appellant Ford, the apparent leader of the group, directed 
the Negroes to “scatter out”, whereupon they quietly seated 
themselves at various points in the auditorium—just as 
10 or 15 white late-comers had done.

The court below held that a finding that appellants came 
late and took seats in the middle of rows could support a 
conviction of disturbing religous worship. Such a ruling, 
although doubtlessly gratifying to punctual parishioners 
incensed at their tardy brethren, is simply farcical. Ap­
pellants merely attended the meeting—nothing more—and 
their arrest and conviction would be incredible were they 
not Negroes. This being so, appellants’ convictions offend 
the due process clause of the Fourteenth Amendment be­
cause founded on no evidence of guilt. Thompson v. Louis­
ville, 362 U. S. 199 (1959); Garner v. Louisiana, 368 U. S. 
157 (1961)) ; Barr v. Columbia, 378 U. S. -----  (1964).

B. If appellants’ “objective acts” can be held to be 
punishable under Tenn. Code Ann. §39-1204, that statute 
must fall because it gives no fair warning of the conduct



11

proscribed. The construction placed upon the statute by 
the Supreme Court of Tennessee gave an “all encompass­
ing” (355 S. W. 2d at 102) effect to the catch-all phrase 
“any other act”, placing appellants’ conduct within that 
meaning. Such a construction could not reasonably have 
been foreseen by appellants nor, indeed, by anyone else. 
Thus this case is controlled by Bouie v. Columbia, 378 U. S.
-----  (1964) and cases cited, and the statute is void for
vagueness.

Moreover, it is settled that requirements of clarity and 
specificity are especially high in cases involving, as these 
certainly do,1 the attempted penalization of expression. 
Smith v. California, 361 IT. S. 147, 151 (1959); Stromberg 
v. California, 283 U. S. 359 (1931); NAACP v. Button, 371 
IT. S. 415, 432 (1963) and cases cited. Free expression will 
clearly be endangered if courts, expressing local interests, 
can avail themselves of the device of strained construction 
of inapplicable statutes (cf. Cox v. Louisiana, 379 U. S. 536, 
551 (1965); Baggett v. Bullitt, 377 IT. S. 360 (1964)), and 
police and prosecutors can engage in “selective enforcement 
against unpopular causes.” Button, supra (371 IT. S. at 
435); Thornhill v. Alabama, 310 IT. S. 88, 97-98 (1940).

C. The youth rally was held at a city-owned auditorium 
open to, and provided for, the use of the public. Since it 
is apparent that the arrest and conviction of appellants 
were based upon their color and their failure to take seats 
apart from the white people in attendance, the conclusion 
compelled from the record is that the state court equated 
appellants’ breach of the racial segregation policy with a 
disturbance of the assembly and thus enforced segregation 
under another label. This the State cannot do under the 
numerous decisions of the Supreme Court. Brown v. Board

1 It cannot be doubted that appellants sought to express their right to 
attend a public rally held in a public park segregated at the time by city 
policy (Watson v. Memphis, 373 U. S. 526 (1963).



12

of Education, 347 U. S. 294 (1954); Gayle v. Browder, 352 
U. S. 903 (1958); Holmes v. Atlanta, 350 U. S. 879 (1958); 
Garner v, Louisiana, 368 U. S. 157 (1961); Peterson v. City 
of Greenville, 373 U. S. 244 (1963); Lombard v. Louisiana, 
373 U. S. 267 (1963); Robinson v. Florida, 378 U. S. 153 
(1964); Barr v. Columbia, 378 U. S .----- (1964).

The leasing of this open-air auditorium to a private 
group does not alter this conclusion. The Supreme Court 
has repeatedly held that the enforcement of racial segrega­
tion in publicly-owned facilities cannot legally be accom­
plished by leasing such facilities to private persons. 
Burton v. Wilmington Parking Authority, 365 U. S. 715; 
Turner v. City of Memphis, 369 U. S. 350; Muir v. Louis­
ville Park Theatrical Association, 202 F. 2d 275 (6th Cir. 
1953), judgment vacated and remanded, 347 U. S. 971.

By the same token, the state cannot enforce segregation 
in such facilities through the use of its criminal laws any 
more than it can do so by a segregation law or rule. The 
Constitution forbids the courts, as well as other arms of 
the states, from enforcing racial discrimination. Shelley 
v. Kraemer, 334 U. S. 1 (1948) ; Barrows v. Jackson, 346 
U. S. 249 (1952).

The Supreme Court of Tennessee stated in its opinion 
that the issue in the case was not whether petitioners had 
a right to be at the meeting, but rather whether they will­
fully disturbed the meeting. However, the record plainly 
indicates that the finding that appellants created a dis­
turbance was based upon the fact that their mere presence 
as Negroes in a white assembly was in itself a disturbance. 
Thus the State has made the presence of Negroes in a 
white assembly a crime just as surely as if it had directly 
punished appellants under a segregation law.



13

III.

A pplication  by the state trial judge o f  an erroneous  
standard o f  fed era l constitu tional law requires that 
appellan ts’ convictions be vacated.

Appellants defended their prosecution in the state courts 
on the ground that the Equal Protection Clause of the 
Fourteenth Amendment gave them the right to enter as 
they had the public auditorium where they were arrested. 
The state trial judge rejected this defense, holding that 
appellants could constitutionally be excluded from the audi­
torium on grounds of race because the First Amendment’s 
guarantee of freedom of religion to the worshippers al­
lowed racial segregation at the rally. This was plainly 
erroneous: even if the City of Memphis could consistently 
with the First Amendment provide public facilities for a 
religious meeting (a point of no small difficulty under the 
Establishment Clause), it certainly could not thereby in­
sulate itself pro tanto from its obligation under Broivn 
v. Board of Education, 347 U. S. 483 (1954), and, e.g., 
Burton v. Wilmington Parking Authority, 365 U. S. 715 
(1961), not to discriminate racially in access to public 
property. The court below assumed that the state trial 
judge was in error on the point (60a, 61a), but held that 
the error was insufficient to vitiate the conviction. In this, 
the district court was wrong. The use of an erroneous 
standard of federal law by the state trial judge in passing 
on a federal constitutional defense is alone grounds for 
release on federal habeas corpus. Rogers v. Richmond, 
365 U. S. 534 (1961). The district court thought otherwise 
because “the trial court’s belief . . . was not made known 
to the jury” and “the opinion by the Supreme Court of 
Tennessee on appeal, affirming the convictions, clearly is



14

not based on the assumption that petitioners had no con­
stitutional right to attend the rally” (60a). But because 
appellants’ federal constitutional defense was not a jury 
issue in the state proceeding, the manner in which the 
jury was given the issues which it had competence to de­
cide is irrelevant. And the Tennessee Supreme Court’s 
correct view of the law cannot cure the incorrect view of 
the state trial judge because the state trial judge alone 
had the power to find the facts upon which appellants’ con­
stitutional defense depended. The trial judge thought that 
appellants could be punished, consistently with the Equal 
Protection Clause, even though the only disturbance of 
which they were guilty was occasioned by the color of 
their skin. Under this view, he did not have to find that 
they created any other disturbance. The Supreme Court 
of Tennessee did not agree that disturbance caused by ap­
pellants’ color could be constitutionally punished, but af­
firmed the convictions on the theory that some other sort 
of disturbance—a disturbance which, if it existed, was 
never found by the trial judge—might srpport punish­
ment. This sort of disposition of appellants’ federal claim 
is so procedurally deficient as itself to amount to a denial 
of due process of law, cf. Cole v. Arkansas, 333 U. S. 196 
(1948), and certainly cannot save a conviction condemned 
by the Rogers v. Richmond principle.



15

IV.

T he court below  erred in  denying appellants an 
evidentiary hearing and, further, in  fa ilin g  to m ake  
an independent determ ination  o f  the u ltim ate consti­
tutional issues on  the record.

Even had the state court record not required the court 
below to order appellants’ discharge and the vacation of 
their convictions, the district court could not properly 
deny appellants relief without an evidentiary hearing. 
Townsend v. Sain, 372 U. S. 293 (1963), describes the broad 
categories of cases in which such hearings are required. 
One category comprises cases in which the state court 
fact-finding procedure is inadequate to afford a full and 
fair hearing. The present case falls within the category 
because, as indicated in Part III of this Brief, the state 
trial judge found the facts underlying appellants federal 
claims under the influence of a plainly erroneous view of 
federal constitutional law. A second category comprises 
cases in which there is a substantial allegation of newly 
discovered evidence bearing on the federal claim. That is 
the case here, because subsequent to appellants’ trial the 
City of Memphis officially took the position, in litigation 
before the Supreme Court of the United States, of sup­
porting segregation in its parks, including the Overton 
Park where the rally which gave rise to appellants’ con­
victions was held. Watson v. Memphis, 373 U. S. 526 
(1963). Any substantial involvement of the City in dis­
criminatory exclusion of appellants, Robinson v. Florida, 
378 U. S. 244 (1964); Peterson v. Greenville, 373 U. S. 244 
(1963); Lombard v. Louisiana, 373 U. S. 267 (1963), plainly 
renders appellants’ convictions unconstitutional. In trying 
the facts underlying the question of City involvement, ap­
pellants are entitled to put before the trier the City’s



16

position in the Watson litigation. In addition, the court 
below found that:

The facts were not as fully developed as might have 
been desirable, but this was largely due to the choice 
of petitioners not to testify (63a).

This finding clearly brings the case within the fifth cate­
gory of Townsend, which requires a hearing where “the 
material facts were not adequately developed at the state 
court hearing.” 372 U. 8. at 313. That appellants did not 
testify at the state court trial is an impermissible con­
sideration upon which to deny them a federal hearing. 
They could not have testified without self-incrimination, 
and were not required to waive their federal constitutional 
privilege, see Malloy v. Hogan, 378 IT. S. 1 (1964), as the 
price of bolstering their federal constitutional defense on 
the merits. Cf. Jackson v. Denno, 378 U. S. 368 (1964). 
They are entitled to a federal forum in which that Hobson’s 
Choice is not presented.

Finally, the district court not merely impermissibly 
rested on the state record; it did what the Supreme Court 
in Townsend reiterated that a federal habeas corpus court 
could in no event do—that is, accept without independent 
examination the ultimate legal conclusions of the state 
criminal courts. Appellants have insisted from the outset 
of this litigation that they are being prosecuted and con­
victed for doing nothing more than wrhat the Equal Pro­
tection Clause of the Fourteenth Amendment allows. That 
contention was never critically examined in the state court 
litigation, save by the state trial judge, who answered it 
under a clear error of federal law. The jury was not, and 
could not have been, given that issue, and the Tennessee 
Supreme Court did not try it. Nevertheless, the court be­
low failed to examine the evidence, canvass the issues, and



17

and reach its own independent conclusion on the claim, as 
Townsend requires of a federal habeas court even where 
that court permissibly elects to rely on the state trial record. 
The district court here simply accepted the state courts’ 
conclusions that there was no Equal Protection issue in 
the case (62a). It is more than a little ironic that appel­
lants, whose convictions rest on their attempt to test the 
protection afforded them by the Equal Protection Clause, 
have not yet had a hearing and determination of that issue. 
The habeas corpus statute, 28 TJ. S. C. §2241 (c)(3) (1958), 
entitles them to one. Fay v. Noia, 372 U. S. 391 (1963).

CONCLUSION

T he judgm ent o f  the district court should  be reversed.

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit, III 
J ohn W . W alker 
Melvyn Zarr

10 Columbus Circle 
New York, N. Y. 10019

A nthony 6 . A msterdam 
3400 Chestnut Street 
Philadelphia, Penn. 19104

R ussell B. S ugarmon
A. W . W illis
B. L. H ooks
H. T. L ockard 
B. F. J ones
I. H. Murphy

588 Vance Avenue 
Memphis, Tennessee

Counsel for Appellants



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