Correspondence from Lani Guinier to Abraham Penn Jones, Esq. (Associate Attorney General)

    I n  t h e

United States Cilnurt n! Appeals
F ob t h e  F if t h  C ibcu it  

No. 23,720

A dam B aker , et al.,
Appellants,

—■v.—

City  of S t . P etersburg , et al.,
Appellees.

on  a p pe a l  fro m  t h e  u n it e d  sta tes  d ist r ic t  court  
FOB THE MIDDLE DISTRICT OF FLORIDA

BRIEF FOR APPELLANTS

J ack Greenberg  
L eroy D. Clark

10 Columbus Circle 
New York, New York 10019

J ames S anderlin

1407 22 Street, South 
St. Petersburg, Florida

Attorneys for Appellants

G ilbert  S . E delson 
A lan  S chw artz

Of Counsel

JA M E S  M. N A BEIT , M



I N D E X

PAGE

Statement of the Case .................................................... 1
A. The Pleadings ...................................................... 1
B. The Facts Adduced at the T ria l..................... 3*

X. Present Organization of the Police Depart­
ment .............................................................. ^

2. The Zone System and Zone 13 ...... ..........  4
3. Negroes in the Police Department....... ...... 5
4. The City’s Defense ........................................  10

C. The Decision of the District Court.................  12

Specification of Errors ................................................... 13
I, The District Court Erred in Holding That No 

Discrimination Was Practiced by the Defen­
dants. The Uncontroverted Facts Show That the 
Acts of the Police Department Were Discrim­
inatory as a Matter of Law ....................... ........ 13

II, Assuming Arguendo That Discriminatory Prac­
tices May Be Justified by Police Efficiency, the 
District Court Erred in Requiring Plaintiffs to 
Show That Defendants’ Actions Were Arbitrary 
and Capricious. Under a Correct Standard of 
Proof, Defendants Failed to Establish Justifica­
tion for Their Practices ................................... 24
A. Assuming Arguendo That Discriminatory 

Practices May Be Justified by Police Effi­
ciency, the District Court Erred in Requiring 
Plaintiffs to Show That Defendants’ Actions 
Were Arbitrary and Capricious .................  24



11

PAGE

B. Defendants Failed to Meet the Burden of 
Justifying Their Racially Discriminatory
Practice ...........................      29

C onclusion  .........................................................................................  33

T able of C ases

Armstrong v. Board of Education of the City of Bir­
mingham, 333 F.2d 47 (5th Cir. 1964) .....................  18

Bolling v. Sharpe, 347 U.S. 497 (1954) ........................  27
Boson v. Rippy, 285 F.2d 43 (5th Cir. 1960) ...............  18
Bradley v. School Board of the City of Richmond, 382

U.S. 103 (1965) ........................................................ 18,19
Brooks v. School District of City of Moherly, 267 F.2d 

733 (8th Cir. 1959) .....................................................  24
Brown v. Board of Education, 347 U.S. 483 (1954)

16,19, 20

Chambers v. Hendersonville City Board of Education,
245 F. Supp. 759 (W.D. N.C. 1965) .... ...................

Clemons v. Board of Education of Hillsboro, 228 F.2d 
853 (6th Cir. 1956) ....................................................

Davis v. County School Board, 103 F. Supp. 337 (E.D.
Va. 1952) ................................................................... 20

Franklin v. County Board of Giles County, 360 F.2d
325 (4th Cir. 1966) ........ ............................................  19

Gomillion v. Lightfoot, 364 U.S. 339 (1960) .............. 20
Goss v. Board of Education, 373 U.S. 683 (1963) .....17,18
Green v. School Board of the City of Roanoke, 304 

F.2d 118 (4th Cir. 1962) ....................

24

22



Ill

PAGE

Hamm v. Virginia State Board of Elections, 230
F. Supp. 156 (E.D. Va. 1964) ................................. 16

Holland v. Board of Public Instruction of Palm Beach 
County, Florida, 258 F.2d 730 (5th Cir. 1958) .......... 20

Jackson v. School Board of the City of Lynchberg,
321 F.2d 230 (4th Cir. 1963) ...................................  18

Jones v. School Board of the City of Alexandria,
278 F.2d 72 (4th Cir. 1960) ........................ ..........  18

McLaughlin v. Florida, 379 U.S. 184 (1964) .... ............ 27
Miranda v. Arizona, 384 U.S. 436 (1966) ....................  22

Oyama v. California, 332 U.S. 633 (1948) ........ -........ 26

Singleton v. Board of Commissioners of State Insti­
tutions, 356 F.2d 771 (5th Cir. 1966) ....................  16

Stell v. Savannah County Board of Education, 333 
F.2d 55 (5th Cir. 1964) .......................................... 18

Taylor v. Board of Education of the City School Dis­
trict, 191 F. Supp. 181 (S.D.N.Y. 1961), aff’d, 294 
F.2d 36 (2d Cir. 1961) .......................................... 19,21

Watson v. Memphis, 373 U.S. 526 (1963) . . . . ........... 21

S t a t u t e s

28 United States Code §1343(3), (4) ........................  2
42 United States Code §1981 ......................................  2
42 United States Code §1983 ..... ....................— ....... 2
42 United States Code §2000 et seq.............................  2



I n  t h e

Im te ft §>tal?0 (Emtrt of Apppalu
F ob t h e  F if t h  C ir c u it  

No. 23,720

A dam B a ker , et al.,

—v.-
Appellants,

City  of S t . P etersburg , et al.,
Appellees.

BRIEF FOR APPELLANTS

This is an appeal from a judgment of the United States 
District Court for the Middle District of Florida, entered 
on March 31, 1966, dismissing plaintiffs’ prayer for in­
junctive relief and dismissing plaintiffs’ action on the 
merits. The notice of appeal was filed on April 26, 1966.

Statem ent o f  the Case

This action, brought by 12 of the 14 Negro policemen 
in the St. Petersburg, Florida Police Department, seeks to 
desegregate that department and to provide equal op­
portunity to Negro policemen. The record in this case 
conclusively shows that the department, and particularly 
its Uniform Division, is, and for many years has been, 
operated on a segregated basis.

A. The Pleadings

Plaintiffs brought this class action under Rule 23(a)(3) 
of the Federal Rules of Civil Procedure on behalf of



2

themselves and others similarly situated. Jurisdiction was 
invoked pursuant to 28 U.S.C. §§1343(3) and (4). This 
suit in equity is authorized by and instituted pursuant to 
42 U.S.C. §1983 and Titles II and III of the Civil Rights 
Act of 1964 (42 U.S.C. §2000 et seq.). Plaintiffs seek to 
secure protection of their civil rights and to redress a 
deprivation of their rights, privileges and immunities 
secured by the Fourteenth Amendment of the Constitu­
tion of the United States, Section 1, 42 U.S.C. §1981 and 
the Civil Rights Act of 1964.

The plaintiffs, as noted above, are police officers in the 
Police Department of St. Petersburg. The defendants are 
the City of St. Petersburg, Lynn Andrews (hereafter 
“Andrews”), its City Manager and Harold Smith (here­
after “Smith”), Chief of Police of the City (R. 8).

The complaint alleges in material part that Negro police 
officers in St. Petersburg are assigned work as patrol 
officers in a zone so drawn as to cover the Negro in­
habitants; that they are so assigned solely on the basis 
of race and are systematically excluded from patrol and 
investigative duties in all other patrol zones solely on 
the basis of race; and that the Police Department main­
tains a dressing room in a segregated and discriminatory 
manner in that all Negro officers are assigned to lockers 
in one corner of the dressing or locker room (R. 9-10).

The answer admits that St. Petersburg is a Florida 
municipal corporation; that Andrews is City Manager, 
and as such governs and controls several departments 
and agencies of the City; and that Smith is Chief of Police 
and has the authority to administer and regulate the 
affairs of the Police Department (R. 8). The answer denies 
that Negro police officers are assigned to work in a zone 
so drawn as to cover all Negro inhabitants of St. Peters-



3

burg but admits that Negro police officers are assigned 
primarily to patrol one zone that is composed of both 
Negro and white inhabitants and that their assignments 
are the result of the administrative decision of the Chief 
of Police that they can render the most effective service 
within that zone (R. 15). The defendants admit that 
Negro police officers have been assigned lockers together 
in a certain area of the locker room but allege that such 
assignments were made at the request of the Negro officers 
in the Department when lockers were first provided (R. 17).

B. The Facts Adduced at the Trial

1. Present Organization o f the Police Departm ent

The Chief of Police of the St. Petersburg Police De­
partment is appointed by the City Manager and is re­
sponsible to him (R. 213). Under the Chief of Police are 
three divisions, the Uniform Division, the Detective Divi­
sion and the Service Division, each headed by a Captain 
(R. 37, Def. Ex. 7). The Chief and the three division 
commanders sit as a policy making body for the Police 
Department (R. 38).

The Uniform Division comprises a Traffic Bureau and 
a Patrol Section (R. 37, Def. Ex. 7). For purposes of 
non-traffic patrol, both on foot and by car, the City is 
currently divided into 16 zones, numbered from 1 to 16 
(PI. Ex. 1). There are three shifts in the Patrol Section, 
with four sergeants on each shift (R. 76). One sergeant 
is at headquarters in charge of the desk, one is a relief 
sergeant and two sergeants, known as the S-l and S-2 
sergeants, are outside patrol sergeants (R. 76, 78). The 
S-l sergeant is in charge of the zones on the North Side 
of the City; the S-2 sergeant is in charge of the zones 
on the South Side of the City.



4

2. The Zone System  and Zone 13

In or about 1959, the Police Department adopted a zone 
system for purposes of patrol under which the City was 
divided into 6 zones (R. 66). In or about 1962, the 6-zone 
system was changed to a 13-zone system and, in or about 
1964, the present 16-zone system was adopted (R. 54, 55).

Zone 13 is unlike all other zones on the Police Depart­
ment map. It is superimposed on and overlaps four other 
zones (R. 55). As described by Chief Smith:

“Zone 12 and Zone 13 cover approximately the same 
general area. Now, Zone 11 on one side overlaps 13 
a little bit. And I think another one on the other side 
overlaps it slightly. Zone 1 overlaps from the other 
side, it overlaps it partially. So you might say in all 
the predominantly negro districts there are two zones, 
two cars that can patrol them and still remain in their 
own beat.”

As indicated by Chief Smith, Zone 13 comprises the heavily, 
densely populated Negro section of the City (R. 59). In| 
describing how Zone 13 was established, Chief Smith, on 
examination by counsel for defendants, testified:

“Q. Was there any effort to establish the zone sys­
tem so you could single out Zone 13 as the negro dis­
trict! A. No.” (R. 101)

Later, however, on examination by counsel for plaintiffs, 
Chief Smith testified:

“Q. Chief Smith, wouldn’t you say that race is the 
basis for this drawing of zone lines, Zone 13? A. If 
you say race, I would say yes, probably it would be. 
Because I feel that the Negro officers can do work 
more efficiently in there. They can get information



5

easier than the white officer can. They are mistreated 
less.

“Q. Could you answer my question, please? A. Yes. 
I would have to say that.” (R. 107)

Again, in Chief Smith’s testimony:
“Q. Now, when these zones were designed, I notice 

that Zone 13 is irregularly shaped—they were designed 
at that time to encompass all of the Negro neighbor­
hood; is that correct? A. The majority of the Negro 
neighborhood, yes.” (R. 191)

The overlapping area comprising zones 12 and 13 is, in 
Chief Smith’s language, “ . . .  a heavy work load area. 
We have more calls in that area—twice as many calls in 
that area as from any other equal area in the City” (R. 
96-97). The police in Zone 13 deal mostly, in the words of 
a policeman assigned to the area, “with vicious type 
crimes”, such as “shootings, cuttings, potash throwing” (R. 
141). The aforementioned officer, Freddie L. Crawford, 
one of the plaintiffs, testified that on one occasion he had 
had three shirts torn off his back in one night and that on 
other occasions he had been stabbed in the course of per­
forming his duties (R. 139).. He testified that on one occa­
sion in the course of making an arrest for disorderly con­
duct, a riot started in the course of which he was assaulted 
with bottles and rescued from the crowd by the timely 
arrival of another police car. His own cruiser was de­
stroyed by the mob (R. 144).

3. Negroes in  the Police Departm ent

a. Past History
There were no Negro officers in the Police Department 

until in or about 1950 (R. 39-40). At that time, four 
Negroes were hired and assigned to patrol the Negro dis-



6

trict of the City—what is now Zone 13 (R. 41). The un­
written policy at that time was that the Negro officers 
could not arrest a white person (R. 44). That policy, ac­
cording to Chief Smith, has since “gradually rotated away” 
(R. 40). Neither that policy, nor its erosion were expressed 
in writing; they were one of a number of unwritten policies, 
customs and habits followed by the Department (R. 40, 44).

Another “custom or habit” followed by the Department 
was the “colored car” (R. 65). In or about 1959, when the 
Police Department adopted a zone system, the Negro officers 
were not assigned to any zone. A “colored car”, manned 
by Negro officers, was given calls in the Negro areas or 
from Negroes (R. 66). The policeman receiving a call from 
a complaining person could and still does ascertain whether 
the caller was a Negro either by the tone of his voice or 
by the area from which the call came (R. 63). In sum, 
until in or about 1962, all Negroes were assigned solely to 
the Negro area. That policy, based upon the custom and 
habit of the Police Department has continued, with a num­
ber of refinements and minor exceptions, to the present.

In or about 1962, the 6-zone arrangement previously 
described was changed to a 13-zone arrangement. At that 
time, the Negro patrol officers, who, unlike the white officers, 
had had no official zone assignment, were for the first time 
“officially” assigned to a zone—Zone 13, which was then 
created to encompass the territory previously patrolled 
solely by Negro policemen.

b. Present Assignments
The Police Department has continued its custom and 

habit of assigning Negro patrol officers* solely to Zone 13, 
the Negro area of the City. As Chief Smith testified:

0 There were at the time of trial 14 Negro policemen in the St. Peters­
burg Police Department which numbered 252 men. Of, those 14, 10 were 
assigned to the Uniform Division and all 10 were also assigned to Zone 13



7

“Q. Is there any reason, in your opinion, why Zone 
13 would have to be designed this way and why the 
irregular portions could not have been left in other 
zones! A. The only reason would be that it has al­
ways been partially—this was brought down by cus­
tom. They have always been assigned in that area.

“Q. What custom are you speaking of? A. The 
customs from the past years.

“Q. What custom, in particular? A. The custom of 
assigning the Negro officers to work in the Negro 
areas. This was part of the custom wre carried on, 
as allowing Methodist Town [a Negro section] to be 
part of Zone 13. . . . ” (R. 193-194)

All Negro officers, upon graduation from the Police 
Academy are assigned directly to Zone 13 (R. 111). No 
Negro officer has ever been assigned to a patrol zone other 
than Zone 13; no white officer is assigned to Zone 13, ex­
cept insofar as the zone to which he is assigned may over­
lap Zone 13 (R. I ll, 114, 115). These assignments are 
based solely on race. Again, Chief Smith testified:

“Q. Now, is it your position that at the beginning 
of their tour of duty, they are assigned to the negro 
area, not having worked any other area, and this is 
because they are negroes? A. Because they can get 
along better in that particular area than the white 
officers, can, yes.

“Q. And this is based on the fact that they are 
negroes? A. Yes, it is.” (R. 116)

A separate chain of command exists for the Negro of­
ficers. They are under the command of Sergeant Samuel

(R. 56). Two Negro officers, one of whom requires light duty and whose 
assignment is temporary, are assigned to the Service Division (R. 56, 
R. 114). Two Negro officers are assigned to the Detective Division where 
they handle, mainly complaints from Negroes (R. 196).



8

Jones who is not a plaintiff in this action. Sergeant Jones 
is the sole Negro sergeant in the Police Department and 
has the designation—not given to any of the other 16 
sergeants in the Uniform Division—of S-3. As noted above, 
the S-l and S-2 sergeants are those sergeants who, on a 
particular shift, are assigned supervision over the North 
Side and South Side zones respectively. Sergeant Jones’ 
primary duty is to supervise the Negro members of the 
Uniform Division. This is not indicated in Chief Smith’s 
testimony. On the matter of Sergeant Jones’ duties, he 
testified as follows:

“A. Sergeant Jones is the liaison man between myself 
and the majority of the negro community. He works 
—more or less sets his own hours. He works part of 
the time in the day and part of the time in the evening, 
and has the-—well, as I say, he is the liaison man be­
tween myself and the leaders in most of the negro 
community. He keeps me informed as to .what is 
going on and what to expect to happen in the future, 
and things like that. Besides, he does have supervision 
over the officers in the field when he is working and 
out there.

“Q. In other words, he is not always assigned to the 
field! A. Well, he is in the field just about all the 
time.”

#  *  *  #  *

“Q. Is he regularly assigned white officers I A. Ac­
tually, he is not regularly assigned officers. He is in 
charge of any that are working in the area where he 
is at, if he happens to be the supervisor that is called 
to that particular spot.”

•  . • • * #

“Q. Then would he be assigned to Zone 13! A. He 
doesn’t have a zone assignment. He is free to go



9

wherever he pleases, or wherever they happen to have 
a need for him. He doesn’t—he isn’t restricted to any 
zone, no.” (R. 73, 80, 81)

Sergeant Jones’ understanding of his duties differed 
from that of Chief Smith, as his testimony shows:

“Q. . . . Would your command—well what is your 
command, who is under you? A. Oh. I have the 
Negro officers under my command.” (R. 240)

#  #  #  #  *

“Q. Your primary responsibility, as you know it, 
is to supervise the Negro officers under your command? 
A. That’s right.

“Q. Has it ever been mentioned to you that you are 
also a liaison officer of the Department? A. Well, I 
don’t quite understand what you mean along that line 
there.

“Q. Do you know what a liaison officer is? A. A go- 
between, I would say.

“Q. Would you describe your duties as this? A. 
Nothing no other sergeant wouldn’t have to do. Just 
anything that comes up in the community, he is to 
report to his supervisor. That is about the only thing 
that I know of.

“Q. I didn’t quite get your answer. Would you re­
peat it? A. To report, you know, the happenings in 
the community that should be brought to the Chief’s 
attention and reported to your supervisor.

“Q. Is this what every sergeant—is this the normal 
sergeant’s assignment? A. All persons that are work­
ing in the Police Department is supposed to report 
things that need to be brought to the Chief’s attention. 
All personnel.

“Q. So are your duties in this respect any different 
from any other sergeant’s? A. No.



10

“Q. Are any white officers assigned to yon! A. No.” 
(R. 243-244)

In furtherance of the continuing discrimination and seg­
regation by the Police Department, the Negro officers’ 
lockers are placed separately on one side of the back 
corner of the locker room (R. 90). Chief Smith testified 
that the assignment of lockers, like the assignment of 
patrol zones, is also the result of custom and habit.

In 1959, when locker assignments were made, the four 
Negro officers then in the Police Department were consulted, 
through Sergeant Jones, about the location of their lock­
ers. They then indicated that they would like to be together 
(R. 89). As additional Negro officers joined the force, they 
were assigned in the same area (R. 89). In the course of 
a subsequent meeting with Negro officers, dissatisfaction 
with the locker arrangement was indicated to Chief Smith. 
But because there was no specific and individual request 
for a change, no change was made (R. 87). Chied Smith 
testified that while he would “consider” requests for change 
in locker assignments from individual officers “when space 
was available”, he would not receive grievances on a group 
basis (R. 106-107).

4. The City’s D efense

There has been established in the St. Petersburg Police 
Department, particularly the Uniform Division, a separate 
Negro enclave, where Negro policemen are assigned on the 
basis of their race to a patrol zone carved out on a racial 
basis, under a Negro chain of command, and where locker 
assignments are made on a racial basis.

The City denied, however, that the Police Department 
has engaged in discriminatory practices, and claimed that 
assignments to Zone 13 were dictated not by race, but by



11

efficiency. No expert testimony was produced to show that 
Chief Smith’s method of zoning and assignment was on the 
facts here presented, sound police practice. No studies 
were made to show that each Negro assigned to Zone 13 
was more efficient or effective in that zone than any other 
officer in the Department. The sole justification for Chief 
Smith’s action was Chief Smith’s opinion. As Chief Smith 
put i t :

“I say because they are more efficient there. Regardless, 
if they were Italian and it was an Italian community, 
we would assign Italians to that community, because 
they could get along with the people there better.” 
(R. 115)

One aspect of Chief Smith’s testimony is particularly 
enlightening. One of the zones over which Zone 13 is 
superimposed is Zone 12. Both zones encompass basically 
the same, predominantly Negro area. Yet no white officers 
are assigned to Zone 13 and no Negro officers are assigned 
to Zone 12. Chief Smith was questioned about this matter:

“Q. . . .  I asked you why Negroes haven’t been 
assigned to Zone 12, especially since it overlaps 13. 
A. Our policy, as I stated before, is to assign Negro 
officers to 13.

“Q. But 12 and 13 take in basically the same terri­
tory. One runs from 9th to 34th, the other one runs 
from—. A. Basically, the same area, yes. They are 
predominantly colored areas, yes.

“Q. Then what is the rationale, what is the reason 
that they aren’t assigned to 12. A. I said there was 
no basic reason.

“Q. This is the result of custom, too! A. Not neces­
sarily. It is just not done. I can’t tell you why be­
cause I don’t know why.



12

“Q. You never thought of it? A. I never have— 
I have never even considered it.” (R. 206)

C. The Decision of the District Court

The opinion of the District Court is set out at pp. 279- 
285 of the Record. The Court found that the City had been 
divided into 16 zones for the purpose of effective police 
patrol throughout the City and that Zone 13 had not been 
zoned for the purpose of discrimination. The Court found 
that Negro officers were assigned to Zone 13 because “in 
the opinion of the Chief of Police, they are better able to 
cope with the inhabitants of that zone” (R. 281). The 
Court also found that the assignment of Negro officers to 
Zone 13 “was not done for purposes of discrimination but 
for the purpose of effective administration” (R. 281). 
Finally, the Court found that there was no discrimination 
in the assignment of lockers (R. 283). The Court concluded 
that the actions of the City, through the City Manager and 
the Chief of Police in the assignments of Negro policemen 
to a predominantly Negro community and in the assign­
ment of lockers, were not made in an unreasonable, arbi­
trary or capricious manner and declared:

“That the Court will not substitute its judgment for 
that of the defendants in the performance of those 
matters within their jurisdiction unless there exists 
sufficient factual basis that the defendants’ actions were 
unreasonable, arbitrary, capricious or unlawful with 
respect to the patrolmen. Brooks v. School District 
of Moberly, Mo., 267 F.2d 733 (1959); Chambers v. 
Hendersonville City Board of Education, 245 F. Supp. 
759 (1965).” (R. 283-284)



13

Specification o f  Errors

The District Court erred in the following respects.
1. The district court erred in holding that the defen­

dants’ conceded racial classification could be justified on 
grounds of police efficiency.

2. The district court erred in requiring plaintiffs to 
show that defendants’ actions were arbitrary and capri­
cious.

3. The district court erred in failing to find, as a matter 
of law, that under a correct standard of proof, defendants 
did not justify their admitted racial classifications.

I.
T he D istrict Court Erred in  H olding That No D is­

crim ination Was Practiced by the D efendants. The  
U ncontroverted Facts Show That the Acts o f  the P olice  
D epartm ent W ere D iscrim inatory as a Matter o f  Law.

We set out, preliminarily, what this case is about, and 
what it is not about; what .plaintiffs claim, and what they 
do not claim.

This is not a case where, in response to a court order 
or to expressed community sentiment, Negro policemen 
were assigned to an area as part of an integration pro­
gram. Nor is this a case where assignments were made 
on the basis of studies of the individual capacities and 
capabilities of each policeman assigned and the suitability 
of each individual policeman for that assignment. There 
is no showing, for example, that it was decided, after a 
study, that not a single white policeman in the St. Peters-



14

burg Police Department could function as efficiently or 
effectively in Zone 13 as the Negro officers assigned there. 
Nor is this a case where a Negro was assigned to a par­
ticular position because no white policeman could possibly 
perform the task—as where a Negro detective is assigned 
to work underground in an individual situation where 
acceptance by a suspect or suspect group requires that he 
be Negro.

What is involved here is a continuing and long-standing 
pattern and custom of segregation of and discrimination 
against Negro policemen. What is involved here is the 
delineation of a special zone, carved out on a racial basis 
and superimposed on other zones. To this zone Negro 
policemen and only Negro policemen are assigned solely 
because of their race. Wbiat is involved is a group judg­
ment; a judgment that because of their race, and for no 
other reason, Negro policemen are suitable only for one 
zone and no other—not even Zone 12, another predomi­
nantly Negro zone. What is involved is a group judgment 
that no white policemen, even those suitable for another 
predominantly Negro zone, are as suitable as any Negro 
for assignment to the specially carved out zone.

On these facts, the plaintiffs have been deprived of their 
constitutional rights. And neither police efficiency or any 
other purported efficiency can justify this.

The essential facts are clear and undisputed on the 
record. These are the essential facts:

1. St. Petersburg has a long history of maintaining a 
policy of separating policemen by race. When Negro police-: 
men were first hired in or about 1950 their sole duties 
were to patrol the Negro area. A specially designated 
“colored car” was used by them. When the zone system was 
first adopted in 1959, the Negro policemen were not as-



15

signed to a zone as were the white policemen but con­
tinued to patrol the Negro area. When the zone system 
was revised in 1962, the former area patrolled by the 
Negro policemen was designated as “Zone 13” and was 
superimposed over other zones. The boundary lines of 
Zone 13 were drawn on the basis of race and in furtherance 
of established customs of segregation.

2. Negroes and only Negroes are assigned to patrol 
Zone 13. No Negro has ever been assigned to patrol 
another zone, not even Zone 12, another predominantly 
Negro zone. No white officer is assigned to patrol Zone 13 
except insofar as the zone to which he is regularly as­
signed may overlap Zone 13. The basis for these assign­
ments is solely racial. Although Chief Smith claimed that 
the assignments to Zone 13 were made on the basis of 
alleged police efficiency, that efficiency turns solely on 
racial factors.

3. The only Negro sergeant in the Police Department 
is in charge of the Negro policemen patrolling Zone 13.

4. Locker assignments were originally made on a racial 
basis although, according to defendants, with the consent 
of the four Negro officers then on the force. Subsequent 
assignments, however, were also made on a racial basis 
and the Chief of Police has refused and still refuses to 
reassign lockers in the Negro section of the police locker 
room.

Applying the law to these essential and uncontroverted 
facts, only one conclusion is possible—that where police 
assignments are made by defendants solely on the basis 
of race to a zone whose boundaries are drawn by defen­
dants on the basis of race, the acts of the defendants are 
discriminatory and violate the Fourteenth Amendment.



16

In Singleton v. Board of Commissioners of State Insti­
tutions, 356 F.2d 771 (5th Cir. 1966), this Court said (at 
p. 772) :

“Twelve years ago, in Brown v. Board of Educa­
tion of Topeka, 1954, 347 U.S. 483, 74 S. Ct. 686, 98 
L. Ed. 873, the Supreme Court effectively foreclosed 
the question of whether a State may maintain racially 
segregated schools. The principle extends to all in­
stitutions controlled or operated by the State. ‘ [I]t is 
no longer open to question that a State may not con­
stitutionally require segregation of public facilities’. 
Johnson v. Virginia, 1963, 373 U.S. 61, 62, 83 S. Ct. 
1053, 1054, 10 L. Ed. 2d 195.”

The principle enunciated by this Court in Singleton 
goes beyond statutes requiring segregation. In Hamm v. 
Virginia State Board of Elections, 230 F. Supp. 156 (E.D. 
Va. 1964), aff’d without opinion, 379 U.S. 19 (1964), Judge 
Bryan, of the Court of Appeals for the Fourth Circuit, 
writing for a three-judge court stated (230 F. Supp. at 
p. 157):

“The ‘separate but equal’ racial doctrine was con­
demned a decade ago in Brown v. Board of Educa­
tion, 347 U.S. 483,74 S. Ct: 686, 98 L. Ed. 873 (1954). 
Subsequent decisional law has made it axiomatic that 
no State can directly dictate or casually promote a 
distinction in the treatment of persons solely on the 
basis of their color. To be within the condemnation, 
the governmental action need not effectuate segrega­
tion of facilities directly [citing]. The result of the 
statute or policy must not tend to separate individuals 
by reason of difference in race or color. No form of 
State discrimination, no matter how subtle, is per­
missible under the guarantees of the Fourteenth 
amendment freedoms.” [Emphasis supplied.]



17

The courts have uniformly held that assignments of 
pupils or public officials based solely on their race, or 
the drawing of administrative boundaries on a racial 
basis by public authorities violates the Fourteenth Amend­
ment of the Constitution of the United States. The princi­
ple has been clearly enunciated by the courts in a series 
of school cases, in which assignments to schools were at­
tempted on the basis of race.

In Goss v. Board of Education, 373 U.S. 683 (1963) the 
Supreme Court struck down a provision in a school desegre­
gation plan which would permit transfers on the basis of 
race. The Court said (at pp. 687-688):

“Classifications based on race for purposes of trans­
fers between public schools, as here, violate the Equal 
Protection Clause of the Fourteenth Amendment. As 
the Court said in Steele v. Louisville & Nashville R. 
Co., 323 U.S. 192, 203 (1944), racial classifications 
are ‘obviously irrelevant and invidious.’ The cases 
of this Court reflect a variety of instances in which 
racial classifications have been held to be invalid, 
e.g., public parks and playgrounds, Watson v. City 
of Memphis, ante, p. 526 (1963); trespass convictions, 
where local segregation ordinances preempt private 
choice, Peterson v. City of Greenville, ante, p. 244 
(1963); seating in courtrooms, Johnson v. Virginia, 
ante, p. 61 (1963); restaurants in public buildings, 
Burton v. Wilmington Parking Authority, 365 U.S. 
715 (1961); bus terminals, Boynton v. Virginia, 364 
U.S. 454 (1960); public schools, Brown v. Board of 
Education, supra; railroad dining-car facilities, Hen­
derson v. United States, 339 U.S. 816 (1950); state 
enforcement of restrictive covenants based on race, 
Shelley v. Kraemer, 334 U.S. 1 (1948); labor unions 
acting as statutory representatives of a craft, Steele



18

v. Louisville & Nashville R. Co., supra; voting, Smith 
v. Allwright, 321 U.S. 649 (1944); and juries, Strauder 
v. West Virginia, 100 U.S. 303 (1879). The recogni­
tion of race as an absolute criterion for granting 
transfers which operate only in the direction of schools 
in which the transferee’s race is in the majority is 
no less unconstitutional than its use for original ad­
mission or subsequent assignment to public schools. 
See Boson v. Rippy, 285 F.2d 43 (C.A. 5th Cir.).”

Even prior to Goss, this Court and other Circuit Courts 
took the position there enunciated. The Court in Goss 
cited with approval this Court’s decision in Boson v. Rippy, 
285 F.2d 43 (5th Cir. 1960). And, in Stell v. Savannah 
County Board of Education, 333 F.2d 55 (5th Cir. 1964), 
cert, denied, 379 U.S. 933 (1964), this Court, dealing with 
pupil assignments said (at p. 61) :

“In this connection, it goes without saying that 
there is no constitutional prohibition against an as­
signment of individual students to particular schools 
on a basis of intelligence, achievement or other apti­
tudes upon a uniformly administered program but 
race must not be a factor in making the assignments.”

See also: Armstrong v. Board of Education of the City 
of Birmingham, 333 F.2d 47 (5th Cir. 1964); Jackson v. 
School Board of the City of Lynchberg, 321 F.2d 230 
(4th Cir. 1963); Green v. School Board of the City of 
Roanoke, 304 F.2d 118 (4th Cir. 1962); Jones v. School 
Board of City of Alexandria, 278 F.2d 72 (4th Cir. 1960).

In Bradley v. School Board of City of Richmond, 382 
U.S. 103 (1965), the Supreme Court reversed a decision 
of the Court of Appeals for the Fourth Circuit approving 
a school desegregation plan without holding full eviden-



19

tiary hearings on the question of whether faculty alloca­
tion on a racial basis rendered the plans inadequate under 
the principle of Brown v. Board of Education. And in 
Franklin v. County Board of Giles County, 360 F.2d 325 
(4th Cir. 1966), the Court of Appeals for the Fourth Cir­
cuit, following Bradley, held that the Fourteenth Amend­
ment forbids discrimination on account of race with respect 
to the employment of teachers.

But the St. Petersburg Police Department has gone be­
yond using race as the sole basis for assigning Negro 
policemen to patrol a certain area; it has zoned the area 
to which those policemen are assigned on a racial basis. 
When the City was first zoned for police patrol purposes 
in 1959, the Negro policemen were assigned to no zone 
but continued to patrol the Negro area previously pa­
trolled by them. That system continues today, except that 
the area originally set aside for patrol solely by Negro 
officers has been given the official designation of Zone 13. 
Logic would dictate that where a City is zoned for any 
purpose, there be created a series of adjoining zones. In 
this case, however, Zone 13 is specially designed to over­
lap four other zones, mainly Zone 12. When asked why 
the area encompassing Zone 13 was not broken up and 
a series of smaller, adjoining zones created, Chief Smith 
replied that “ . . . this was a matter of custom. They 
[the Negro officers] have always been assigned i" that 
area” (R. 193).

Such zoning, on a racial basis for the purpose of as­
signment on a racial basis, is unconstitutional under the 
Fourteenth Amendment. Thus, in Taylor v. Board of Ed­
ucation of City School District, 191 F. Supp. 181 (S.D.N.Y. 
1961), aff’d, 294 F.2d 36 (2d Cir. 1961), the court held 
that school districting with the purpose and effect of pro­
ducing a substantially segregated school system clearly



20

violates the Fourteenth Amendment. See also, Holland v. 
Board of Public Instruction of Palm Beach County, Fla., 
258 F.2d 730 (5th Cir. 1958). Cf. Gomillion v. Lightfoot, 
364 IT.S. 339 (1960).

In summary, the defendants on uncontroverted facts 
have as a matter of law maintained a policy of racial 
discrimination violative of the constitutional rights of the 
plaintiffs.

Throughout the trial, defendants maintained that their 
long-standing policy and custom of assigning Negro patrol 
policemen solely to a single patrol area carefully zone to 
include the predominantly Negro section of the City was 
justified. Their argument, adopted by the District Court, 
was that they were charged with the duty of operating the 
Police Department in the most effective and efficient man­
ner and that the assignments and zoning were made in the 
interests of effectiveness and efficiency because, in their 
view, Negroes police Negroes best. But, the cases, hold that 
neither police efficiency nor savings to the taxpayer are 
justification for the deprivation of constitutional rights.

In civil rights cases, the courts have uniformly placed 
Fourteenth Amendment rights ahead of claims akin to 
those of inefficiency, inconvenience and taxpayer expense. 
Brown v. Board of Education, supra, decided four cases 
on appeal, one of which was Davis v. County School Board, 
103 F. Supp. 337 (E.D. Ya. 1952). In that case the dis­
trict court held that the maintenance of segregated school 
systems was justified on grounds, among others, that it 
had provided greater opportunities for Negroes and that * 
abolition of segregated schools would severely lessen the 
interest of the people of the State in the public schools, 
lessen the financial support, and so injure both races. 
Placing constitutional rights ahead of these considerations, 
the Supreme Court reversed.



21

Likewise, in Watson v. Memphis, 373 U.S. 526 (1963), 
defendants argued that desegregation of a public park 
system should be delayed and that gradual desegregation 
was necessary in order to prevent interracial disturbances, 
violence and community confusion and riots. The Supreme 
Court rejected this argument stating (at p. 535):

“ . . . The compelling answer to this contention is that 
constitutional rights may not he denied simply be­
cause of hostility to their assertion or exercise. See 
Wright v. Georgia, ante, p. 284; Brown v. Board of 
Education, 349 U.S. 294, 300. Cf. Taylor v. Louisiana, 
370 U.S. 154. As declared in Cooper v. Aaron, 358 
U.S. 1, 16, ‘law and order are not . . .  to be preserved 
by depriving the Negro children of their constitutional 
rights.’ This is really no more than an application 
of a principle enunciated much earlier in Buchanan v. 
Warley, 245 U.S. 60, a case dealing with a somewhat 
different form of state-ordained segregation—enforced 
separation of Negroes and whites by neighborhood. 
A unanimous Court, in striking down the officially 
imposed pattern of racial segregation there in ques­
tion, declared almost a half century ago:

‘It is urged that this proposed segregation will 
promote the public peace by preventing race con­
flicts. Desirable as this is, and important as is the 
preservation of the public peace, this aim cannot be 
accomplished by laws or ordinances which deny 
rights created or protected by the Federal Constitu­
tion.’ 245 U.S., at 81.”

In Taylor v. Board of Education of City School District, 
supra, where schools zones were gerrymandered, as Zone 
13 is here gerrymandered, for racial purposes, the defen­
dants argued in support of their refusal to eliminate the



22

racially drawn zones that there would be demonstrated 
difficulties and that substantial costs to the taxpayers 
would be involved. Those arguments were rejected by the 
court. Likewise, in Clemons v. Board of Education of Hills­
boro, 228 F.2d 853 (6th Cir. 1956), defendant’s contention 
that such racially drawn and gerrymandered school zones 
were necessary to avoid overcrowding in the schools was 
rejected by the court.

Defendants here stand no better than defendants in the 
above cited cases. Alleged police efficiency and savings to 
the taxpayer cannot justify the deprivation of the plain­
tiffs’ constitutional rights to equality and human dignity.

If police efficiency were a justification for the depriva­
tion of constitutional rights, the police would be free to 
coerce confessions from defendants, to conduct unlawful 
searches and seizures and to deny to suspects the right to 
consult counsel. But the courts have balanced these claimed 
“efficiencies” against constitutional rights and have held 
that where such a conflict exists, and a clear constitutional 
right is violated, police efficiency- must give way. Most 
recently, the Supreme Court dealt at length with the prob­
lem of custodial police interrogation in Miranda v. Arizona, 
384 U.S. 436 (1966). There, the court balanced a claim of 
police efficiency in apprehending criminals against the 
constitutional rights provided by the Fifth Amendment. 
Speaking for the Court, Mr. Chief Justice Warren rvrote 
(384 U.S. at p. 479):

“A recurrent argument made in these cases is that 
society’s need for interrogation outweighs the privi­
lege. This argument is not unfamiliar to this Court. 
See, e.g., Chambers v. Florida, 309 U.S. 227, 240-241 
(1940). The whole thrust of our foregoing discussion 
demonstrates that the Constitution has prescribed the



23

rights of the individual when confronted with the 
power of government when it provided in the Fifth 
Amendment that an individual cannot be compelled 
to be a witness against himself. That right cannot 
be abridged. As Mr. Justice Brandeis once observed:

‘Decency, security and liberty alike demand that 
government officials shall be subjected to the same 
rules of conduct that are commands to the citizen. 
In a government of laws, existence of the govern­
ment will be imperilled if it fails to observe the law 
scrupulously. Our Government is the potent, the 
omnipresent teacher. For good or for ill, it teaches 
the whole people by its example. Crime is con­
tagious. If the Government becomes a lawbreaker, 
it breeds contempt for law; it invites every man to 
become a law unto himself; it invites anarchy. To 
declare that in the administration of the criminal 
law the end justifies the means . . . would bring 
terrible retribution. Against that pernicious doctrine 
this Court should resolutely set its face.’ Olmstead 
v. United States, 277 U.S. 438, 485 (1928) (dissenting 
opinion).”

The words of Mr. Chief Justice Warren and Mr. Justice 
Brandeis have application here. As the Government teaches 
the whole people by its example, so no Government or 
Government agency should practice discrimination. If dis­
criminatory practices, which deny to men their right to 
equal opportunity, are to be ended, the Government must 
lead. A free society is anchored in the concept of equality 
before the law. To place police efficiency ahead of equality 
is to destroy that concept and to destroy the fundamental 
right of human dignity.



24

II.

A ssum ing Arguendo That D iscrim inatory Practices 
May B e Justified  by P o lice  Efficiency, the D istrict Court 
Erred in  R equiring Plaintiffs to  Show That D efendants’ 
A ctions W ere Arbitrary and Capricious. U nder a Cor­
rect Standard o f  P roof, D efendants Failed  to Establish  
Justification fo r  T heir Practices.

A. Assuming Arguendo That Discrim inatory Practices May Be 
Justified by Police Efficiency, the District Court Erred 
in Requiring Plaintiffs to Show That Defendants’ Actions 
W ere A rbitrary and Capricious.

Assuming arguendo, and contrary to law, that police 
efficiency may constitutionally be used to justify defendants 
discriminatory practices, the judgment of the district court 
should still be reversed. In passing on the alleged justifi­
cation, the District Court imposed an erroneous standard 
of proof upon plaintiffs argument.

In its opinion, the district court held that the defendants, 
in their assignment of Negro officers, had not acted in an 
arbitrary or capricious manner and unless the plaintiffs 
showed factually that defendants’ actions were arbitrary 
or capricious, the court would not substitute its judgment 
for theirs. In support of this view, the District Court 
purported to rely upon two cases involving teacher assign­
ments, Brooks v. School District of City of Moberly, 267 
F.2d 733 (8th Cir. 1959) and Chambers v. Hendersonville 
City Board of Education, 245 F. Supp. 759 (W.D. N.C. 
1965). Not only are those cases clearly distinguishable on 
their facts, but they support plaintiffs’ position.

Both cases are actions by Negro schoolteachers alleging 
that they had been denied re-employment after their school 
systems had been desegregated. In each case, the court 
first examined the facts surrounding the refusal to re-



25

employ the Negro teachers and found that race played no 
part in the decision not to re-employ them. In Brooks, 
for example, the court stated (263 F.2d at p. 740):

“We find no positive evidence that the Board was influ­
enced by racial considerations in the matter of em­
ploying its teachers. Additionally, there are a number 
of factors tending to negative any racial prejudice on 
the part of the Board.”

Having found that race played no part in the decisions of 
the defendants in those cases, the courts stated that they 
would not substitute their judgment for that of the re­
sponsible officials unless those officials acted in an arbi­
trary or capricious manner. Thus, the courts in those cases 
reached the question of whether arbitrary or capricious 
actions were taken by public officials only after they had 
determined that those actions were not taken on a racially 
discriminatory basis.

In the case at bar, however, the court held that racially 
discriminatory practices were justified and placed upon 
plaintiffs the burden of showing that the alleged justifica­
tion was not arbitrary or capricious. Under the rationale 
of the District Court’s opinion, where a State agency or 
State officials engage in discriminatory practices, and at­
tempt to justify those practices on the grounds that they 
are more efficient, the burden shifts to one who attacks 
those practices to show that the alleged justification is not 
arbitrary or capricious, to show that no reasonable man 
could refuse to believe defendants’ evidence.

Under the rationale of the District Court’s opinion, a 
burden is imposed upon plaintiffs suing to vindicate their 
civil rights, rights which are the essence of citizenship, 
more difficult than that imposed upon a plaintiff seeking



26

to establish a violation of the most unimportant contract. 
The plaintiff in the contract case must prove the alleged 
violation by a preponderance of the evidence; the plain­
tiffs seeking to vindicate their constitutional rights against 
discriminatory State action must show affirmatively that 
the State and its officials acted arbitrarily and capriciously. 
The result is anomalous and its implications ominous; 
property rights are more easily vindicated than basic con­
stitutional rights; the reach and effectiveness of the Four­
teenth Amendment is substantially minimized.

Under the rationale of the District Court, the defendants 
are permitted to justify their discriminatory practices on 
what is virtually a bootstrap basis. So long as the dis­
criminatory practices are, in the opinion of the Chief of 
Police—who maintained the practices—justified as a mat­
ter of efficiency, the practice is lawful.

But the rationale of the District Court is directly con­
trary to rulings of the Supreme Court which hold that 
where racial classifications, made by a State, State Agency 
or State officials, are attempted to be justified on the 
grounds that they promote the accomplishment of a per­
missible State policy, the State bears tire burden of justi­
fication. And, in order to sustain that burden, the State 
must affirmatively show not merely that the classifications 
are rationally related to the accomplishment of the per­
missible policy, but that the policy cannot otherwise be 
accomplished.

In Oyama v. California, 332 U.S. 633 (1948), the Court 
held that a California statute, as applied, deprived peti­
tioner of his rights under the Fourteenth Amendment by 
discriminating against him, on the basis of his race, in the 
right to hold land. The Supreme Court did not require 
petitioner to show that the State’s action was arbitrary



27

and capricious as the district court did here. Instead, the 
Court held (332 U.S. at p. 640):

“In our view of the case, the state had discriminated 
against Fred Oyama; the discrimination is based 
solely on his parents’ country of origin; and there is 
absent the compelling justification which would be 
needed to sustain discrimination of that nature.”

In Bolling v. Sharpe, 347 U.S. 497 (1954), the Supreme 
Court declared public school segregation in the District 
of Columbia to be unconstitutional, stating (347 U.S. at 
p. 499):

“Classification based solely upon race must be scruti­
nized with particular care, since they are contrary 
to our traditions and hence constitutionally suspect.”

v Most recently, in McLaughlin v. Florida, 379 U.S. 184 
(1964) the Court declared unconstitutional under the Four­
teenth Amendment a Florida statute prohibiting unmar­
ried mixed couples from living together under the same 
roof habitually. Justice White, writing for the Court, 
stated:

“Normally, the widest'discretion is allowed the legis­
lative judgment in determining whether to attack some 
rather than all, of the manifestations of the evil aimed 
at; and normally that judgment is given the benefit 
of every conceivable circumstance which might suffice 
to characterize the classification as reasonable rather 
than arbitrary and invidious, [citations] But we deal 
here with a classification based upon the race of the 
participants, which must be viewed in light of the 
historical fact that the central purpose of the Four­
teenth Amendment was to eliminate racial discrimina-



28

tion emanating from official sources in the States. This 
strong policy renders racial classifications ‘constitu­
tionally suspect’; Bolling v. Sharpe, 347 U.S. 497, 499; 
and subject to the ‘most rigid scrutiny’, Korematsu 
v. United States, 323 U.S. 214, 216; and ‘in most cir­
cumstances irrelevant’ to any constitutionally accept­
able legislative purpose, Hirabayashi v. United States, 
320 U.S. 81, 100. Thus, it is that racial classifications 
have been held invalid in a variety of contexts, [cita­
tions]” 379 U.S. at p. 192.

*  #  #  #  #

“That a general evil will be partially corrected may, 
at times, and without more, serve to justify the limited 
application of a criminal law; but legislative discre­
tion to employ the piecemeal approach stops short 
of permitting a State to narrow statutory coverage 
to focus on a racial group. Such classifications bear 
a far heavier burden of justification.” Id. at p. 194. 

# # * # #
“There is involved here an exercise of the state police 
power which trenches upon the constitutionally pro­
tected freedom from invidious official discrimination 
based on race. Such a law, even though enacted pur­
suant to a valid state interest, bears a heavy burden 
of justification, as we have said, and will be upheld 
only if it is necessary, and not merely rationally 
related, to the accomplishment of a permissible state 
policy.” Id. at p. 196.

The District Court in the case at bar did not require 
the defendants to prove that their classification and as­
signment of Negro officers was essential to the accomplish­
ment of a valid state policy. Instead, it required plain­
tiffs to show that the defendants did not act arbitrarily



29

and capriciously. For this reason alone, this court should 
reverse.

B. Defendants Failed to Meet the Burden of Justifying Their 
Racially Discriminatory Practice.

On the facts of this record, defendants have failed to 
sustain their burden of showing that the racially discrimi­
natory practices employed by them were essential to 
police efficiency. No impartial expert testimony was ad­
duced to show that any Negro policeman on the basis of 
his race is better and more efficient in police work in a 
Negro area than any white policeman. The defendants, 
hoisting themselves by their own bootstraps, relied solely 
upon the testimony of Chief Smith, the man who had con­
tinued the longstanding customs complained of here. Chief 
Smith testified that in his opinion these customs were 
now justified because they promote efficiency. This opinion, 
accepted on its face by the District Court, and unsup­
ported by any further impartial evidence, is insufficient 
to sustain defendants’ burden. Indeed, Chief Smith’s testi­
mony shows conclusively that the racial classifications and 
assignments made by the defendants are not essential to 
efficient policing of the City.

For example, as we have indicated above, the logical 
method of zoning the City would be to divide it into 
separate adjoining areas. Zone 13, however, is superim­
posed over four other zones, mainly Zone 12. Chief Smith 
failed to explain why this method of zoning, which neces­
sarily involves racial classifications, was the only way in 
which to police the City efficiently. Indeed his principle 
explanation for the special design of Zone 13 was:

“The only reason would be that it has always been 
partially—this was brought down by custom” (R. 193).



30

On the question of the alleged superior efficiency of 
Negro officers over any white officers in Zone 13, Chief 
Smith testified that a white officer was as efficient as a 
Negro officer in investigating or handling such things as 
common accidents (R. 98). He was then asked by his 
counsel:

“Q. What types of complaints could a colored officer 
cope with much better than a white officer, in your 
experience as a police officer? A. Well, primarily 
where our biggest trouble has been, where you have 
disorderly groups, drinking involved, you get large 
crowds gathering, and the white officers will take much 
more abuse from the bystanders than the negro officers 
do. They get enough abuse from the citizens—” (R. 
98).

Officer Crawford, on the other hand, who is assigned to 
Zone 13, testified on cross-examination that Negro officers 
have more difficulties in crowd situations in his area than 
do the white officers:

“Q. Isn’t it true that the frequency that these 
troubles occur happens to white police officers in that 
Zone as it happens to you; isn’t it the same thing!
A. Yes, sir, it happens to both of us.

“Q. And as a matter of fact, doesn’t it happen more 
to the white police officers than it does to the colored 
police officers! A. No, sir, I wouldn’t say so.

“Q. You wouldn’t know, or you don’t say so! A.
I would say it happens more so to the negro officers - 
than it does to the white officers.” (R. 156)

On the matter of locker assignments, the sole justifica­
tion for segregation of the Negro lockers was that some 
years ago, when there were four Negro policemen in the



31

Police Department, they agreed that they be assigned 
adjoining lockers. No explanation was given, no justifica­
tion was attempted for the subsequent assignment of lock­
ers. Chief Smith testified that he would not hear a group 
complaint on the matter but that he would “consider” 
individual requests for a change “when space was avail­
able”. Plainly, there is no justification in terms of effi­
ciency for the assignment of lockers on a racial basis. 
Nor is there a justification in terms of morale where most 
of the Negroes, as shown by their institution of legal 
action to change the procedure, do not wish assignments 
to be made on a racial basis. Indeed, Chief Smith’s atti­
tude in refusing to grant to plaintiffs their constitutional 
rights, in his adamant refusal to desegregate even a por­
tion of the Negro enclave in his Police Department, reflects 
the attitude of defendants and shows the true motivation 
for their discriminatory practices.

Finally, even if it be assumed, as Chief Smith did, that 
all Negro officers were more efficient in policing Negro 
areas than all white officers, the question remains as to 
why Negro officers were assigned only to Zone 13 and why 
no Negro officers have ever been assigned to Zone 12, which 
is also a predominantly Negro area. Chief Smith was un­
able to make any explanation in terms of efficiency. His 
sole explanation, which also casts considerable light on the 
motives of the defendants in making racial classifications, 
was that he did not know why Negroes had never been as­
signed to Zone 12 and that he had never even considered it 
(E. 206).

As we have stated above, the record in this case shows 
that there has been established in the St. Petersburg Police 
Department, and particularly its Uniform Division, a sep­
arate, segregated Negro enclave. This enclave has been 
maintained, over the protests of the Negro officers in the



32

department, for many years. The present practices are 
based upon a custom of segregation followed by the Police 
Department since Negroes were first employed. Defendants 
now contend that they do not engage in racial discrimina­
tion but are motivated solely by a desire for efficiency. 
But as the record shows, the practices challenged by this 
action are not essential to police efficiency. The defendants 
have not met their burden of showing that the City can­
not be policed efficiently by methods other than those 
racially discriminatory practices which they have adopted.

Finally, it should be kept clearly in mind that the justi­
fication here offered by defendants^—police efficiency—is 
being used to rationalize discriminations which arose out 
of custom and habit. Negroes were originally sent to 
patrol the Negro neighborhood, and were prohibited from 
taking white persons to the station house (R. 44, 155), not 
because it was more efficient to do things this way, but 
because St. Petersburg practiced a policy of segregation 
of which the organization of the Police Department was 
simply a manifestation. We are now told, after the recent 
Supreme Court decisions and the passage of the Civil 
Rights Act, that, fortuitously, the old practices were really 
the best ones; and we are told this principally by a Police 
Chief who received his training in an admittedly segregated 
Police Department under officials who instituted that ra­
cially discriminatory policy, and who has introduced no 
important changes in it. Under these circumstances, we 
submit, it is impossible to conclude that St. Petersburg 
has carried the burden of proving that the same old dis­
criminations, practiced in. the same old way, are necessary 
to efficient police enforcement.



33

CONCLUSION

For the reasons stated above, the judgment of the dis­
trict court should be reversed and the District Court 
ordered to grant the relief prayed for by plaintiffs.

Respectfully submitted,

J ack  G reenberg  
L eroy  D. Clark

10 Columbus Circle 
New York, New York 10019

J am es S a nderlin

1407 22 Street, South 
St. Petersburg, Florida

Attorneys for Appellants

G ilbert  S . E delson 
A l a n  S chw artz

Of Counsel



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