U.S. Supreme Court

GARNER v. LOUISIANA, 368 U.S. 157 (1961)

368 U.S. 157

GARNER ET AL. v. LOUISIANA.

CERTIORARI TO THE SUPREME COURT OF LOUISIANA.

No. 26.

Argued October 18-19, 1961.

Decided December 11, 1961.^{Footnote *}

In Louisiana places of business catering to both white and Negro patrons, petitioners, who are Negroes, took seats at lunch counters where only white persons customarily were served, and they remained quietly in their seats after being told that they could not be served there. They made no speeches, carried no placards and did nothing else to attract attention to themselves, except to sit at the lunch counters. They were not asked to leave by the proprietors or their agents; but they were asked to leave by police officers. Upon failing to do so, they were arrested and charged with "disturbing the peace." They were convicted in a state court under a state statute which defines "disturbing the peace" as the doing of specified violent, boisterous or disruptive acts and "any other act in such a manner as to unreasonably disturb or alarm the public." They were denied relief by the State Supreme Court. The records contained no evidence to support a finding that petitioners had disturbed the peace, either by outwardly boisterous conduct or by passive conduct likely to cause a public disturbance. Held: The convictions were so totally devoid of evidentiary support as to violate the Due Process Clause of the Fourteenth Amendment. Thompson v. City of Louisville,  362 U.S. 199 . Pp. 158-174.

(a) There being nothing in the record to indicate that the trial judge took judicial notice of anything, these convictions cannot be sustained on the theory that he took judicial notice of the general situation, including the local custom of racial segregation in eating places, and concluded that petitioners' presence at the lunch counters might cause a disturbance which it was the duty of the police to prevent. P. 173.

(b) In the circumstances of these cases, merely sitting peacefully in places where custom decreed that petitioners should not sit was not evidence of any crime, and it cannot be so considered either by the police or by the courts. P. 174.

Reversed.

Jack Greenberg argued the cause for petitioners. With him on the briefs were A. P. Tureaud, Thurgood Marshall, William T. Coleman, James A. Nabrit III and Louis H. Pollak.

John F. Ward, Jr. argued the cause for respondent. With him on the briefs were Jack P. F. Gremillion, Attorney General of Louisiana, and N. Cleburn Dalton, Assistant Attorney General.

Briefs of amici curiae, urging reversal, were filed by Solicitor General Cox, Assistant Attorney General Marshall, Bruce J. Terris, Harold H. Greene and Howard A. Glickstein for the United States, and by John R. Fernbach and Murray A. Gordon for the Committee on the Bill of Rights of the Association of the Bar of the City of New York.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

These cases come to us from the Supreme Court of Louisiana and draw in question the constitutionality of the petitioners' convictions in the 19th Judicial District Court, Parish of East Baton Rouge, Louisiana, for the crime of disturbing the peace. The petitioners[^{Footnote 1} ] were brought to trial and convicted on informations charging them with violating Title 14, Article 103 (7), of the Louisiana Criminal Code, 1942, in that "they refused to move from a cafe counter seat . . . after having been ordered to do so by the agent [of the establishment]; said conduct being in such manner as to unreasonably and foreseeably disturb the public . . . ." In accordance with state procedure, petitioners sought post-conviction review in the Supreme Court of Louisiana through writs of certiorari. mandamus and prohibition. They contended that the

State had presented no evidence to support the findings of statutory violation, and that their convictions were invalid on other constitutional grounds, both state and federal. Relief was denied. Federal questions were properly raised and preserved throughout the proceedings, and timely petitions for certiorari filed in this Court were granted. 365 U.S. 840. The United States Government appeared as amicus curiae urging, on various grounds, that the convictions be reversed. An amicus brief also urging reversal was filed by the Committee on the Bill of Rights of the Association of the Bar of the City of New York.

In our view of these cases and for our disposition of them, the slight variance in the facts of the three cases is immaterial. Although the alleged offenses did not occur on the same day or in the same establishment, the petitioners were all arrested by the same officers, charged with commission of the same acts, represented by the same counsel, tried and convicted by the same judge, and given identical sentences. Because of this factual similarity and the identical nature of the problems involved in granting certiorari, we ordered the cases consolidated for argument and now deem it sufficient to file one opinion. In addition, as the facts are simple, we think it sufficient to recite but one of the cases in detail, noting whatever slight variations exist in the others.

In No. 28, Hoston et al. v. Louisiana, Jannette Hoston, a student at Southern University, and six of her colleagues took seats at a lunch counter in Kress' Department Store in Baton Rouge, Louisiana, on March 29, 1960.[^{Footnote 2} ] In Kress', as in Sitman's Drug Store in No. 26

where Negroes are considered "very good customers," a segregation policy is maintained only with regard to the service of food.[^{Footnote 3} ] Hence, although both stores solicit business from white and Negro patrons, and the latter as well as the former may make purchases in the general merchandise sections without discrimination,[^{Footnote 4} ] the stores do not provide integrated service at their lunch counters.

The manager at Kress' store, who was also seated at the lunch counter, told the waitress to advise the students that they could be served at the counter across the aisle, which she did. The petitioners made no response and remained quietly in their seats. After the manager had finished his lunch, he telephoned the police and told them that "[some Negroes] were seated at the counter reserved for whites." The police arrived at the store and ordered the students to leave. The arresting officer testified that the petitioners did and said nothing except that one of them stated that she would like a glass of iced tea, but that he believed they were disturbing the peace "by sitting there." When none of the petitioners showed signs of leaving their seats, they were placed under arrest and taken to the police station. They were then charged with violating Title 14, Article 103 (7), of the Louisiana Criminal Code, a section of the Louisiana disturbance of the peace statute.

Before trial, the petitioners moved for a bill of particulars as to the details of their allegedly disruptive behavior and to quash the informations for failure to state any unlawful acts of which they could be constitutionally convicted. The motions were denied, and the

petitioners applied to the Supreme Court of Louisiana for writs of certiorari, prohibition and mandamus to review the rulings. The Supreme Court denied the writs on the ground that an adequate remedy was available through resort to its supervisory jurisdiction in the event of a conviction. The petitioners were then tried and convicted,[^{Footnote 5} ] and sentenced to imprisonment for four months, three months of which would be suspended upon the payment of a fine of $100. Subsequent to their convictions, the Supreme Court, in denying relief on appeal, issued the following oral opinion in each case.

"Writs refused.

"This court is without jurisdiction to review facts in criminal cases. See Art. 7, Sec. 10, La. Constitution of 1921.

"The rulings of the district judge on matters of law are not erroneous. See Town of Ponchatoula vs. Bates, 173 La., 824, 138 So., 851."[^{Footnote 6} ]

Before this Court, petitioners and the amici have presented a number of questions claiming deprivation of rights guaranteed to petitioners by the First and Fourteenth Amendments to the United States Constitution.[^{Footnote 7} ] The petitioners contend:

(a) The decision below affirms a criminal conviction based upon no evidence of guilt and, therefore, deprives them of due process of law as defined in Thompson v. City of Louisville,  362 U.S. 199 .

(b) The petitioners were convicted of a crime under the provisions of a state statute which, as applied to their acts, is so vague, indefinite and uncertain as to offend the Due Process Clause of the Fourteenth Amendment.

(c) The decisions below conflict with the Fourteenth Amendment's guarantee of freedom of expression.

(d) The decision below conflicts with prior decisions of this Court which condemn racially discriminatory

administration of State criminal laws in contravention of the Equal Protection Clause of the Fourteenth Amendment.

With regard to argument (d), the petitioners and the New York Committee on the Bill of Rights contend that the participation of the police and the judiciary to enforce a state custom of segregation resulted in the use of "state action" and was therefore plainly violative of the Fourteenth Amendment. The petitioners also urge that even if these cases contain a relevant component of "private action," that action is substantially infected with state power and thereby remains state action for purposes of the Fourteenth Amendment.[^{Footnote 8} ]

In the view we take of the cases we find it unnecessary to reach the broader constitutional questions presented, and in accordance with our practice not to formulate a rule of constitutional law broader than is required by the precise facts presented in the record, for the reasons hereinafter stated, we hold that the convictions in these cases are so totally devoid of evidentiary support as to render them unconstitutional under the Due Process Clause of the Fourteenth Amendment.[^{Footnote 9} ] As in Thompson v. City of Louisville,  362 U.S. 199 , our inquiry does not turn on a question of sufficiency of evidence to support a conviction, but on whether these convictions rest upon any evidence which would support a finding that the petitioners'

acts caused a disturbance of the peace. In addition, we cannot be concerned with whether the evidence proves the commission of some other crime, for it is as much a denial of due process to send an accused to prison following conviction for a charge that was never made as it is to convict him upon a charge for which there is no evidence to support that conviction.[^{Footnote 10} ]

The respondent, in both its brief and its argument to this Court, implied that the evidence proves the elements of a criminal trespass. In oral argument it contended that the real question here "is whether or not a private property owner and proprietor of a private establishment has the right to serve only those whom he chooses and to refuse to serve those whom he desires not to serve for whatever reason he may determine."[^{Footnote 11} ] That this is not a question presented by the records in these cases seems too apparent for debate. Even assuming it were the question, however, which it clearly is not, these convictions could not stand for the reason stated in Cole v. Arkansas,  333 U.S. 196 .[^{Footnote 12} ]

Under our view of these cases, our task is to determine whether there is any evidence in the records to show that the petitioners, by their actions at the lunch counters in the business establishments involved, violated Title 14, Article 103 (7), of the Louisiana Criminal Code. At the time of petitioners' acts, Article 103 provided:

"Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:

"(1) Engaging in a fistic encounter; or

"(2) Using of any unnecessarily loud, offensive, or insulting language; or

"(3) Appearing in an intoxicated condition; or

"(4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or

"(5) Holding of an unlawful assembly; or

"(6) Interruption of any lawful assembly of people; or

"(7) Commission of any other act in such a manner as to unreasonably disturb or alarm the public."

I.

Our initial inquiry is necessarily to determine the type of conduct proscribed by this statute and the elements of guilt which the evidence must prove to support a criminal conviction thereunder. First, it is evident from a reading of the statute that the accused must conduct himself in a manner that would "foreseeably disturb or alarm the public." In addition, when a person is charged with a violation of Paragraph 7, an earlier version of which was aptly described by the Supreme Court of Louisiana as "the general portion of the statute which does not define the `conduct or acts' the members of the Legislature had in mind" (State v. Sanford, 203 La. 961, 967, 14 So.2d 778,

780),[^{Footnote 13} ] it would also seem apparent from the words of the statute that the acts, whatever they might be, must be done "in such a manner as to [actually] unreasonably disturb or alarm the public." However, because we find the records barren of any evidence that would support a finding that the petitioners' conduct would even "foreseeably" have disturbed the public, we need not consider whether the statute also requires the acts to be done in a manner as actually to disturb the peace.

We of course are bound by a State's interpretation of its own statute and will not substitute our judgment for that of the State's when it becomes necessary to analyze the evidence for the purpose of determining whether that evidence supports the findings of a state court. Hence, we must look to Louisiana for guidance in the meaning of the phrase "foreseeably disturb or alarm the public" in order to determine the type of conduct proscribed by La. Rev. Stat., 1950, 14:103 (7).

The Supreme Court of Louisiana has had occasion in the past, in interpreting the predecessor of Article 103,[^{Footnote 14} ] to give content to these words, and it is evident from the court's prior treatment of them that they were not

intended to embrace peaceful conduct. On the contrary, it is plain that under the court's application of the statute these words encompass only conduct which is violent or boisterous in itself, or which is provocative in the sense that it induces a foreseeable physical disturbance.[^{Footnote 15} ] In State v. Sanford, 203 La. 961, 14 So.2d 778, the evidence showed that thirty Jehovah's Witnesses approached a Louisiana town for the purpose of distributing religious tracts and persuading the public to make contributions to their cause. The Witnesses were warned by the mayor and police officers that "their presence and activities would cause trouble among the population and asked them to stay away from the town . . . ." 203 La., at 964, 14 So.2d, at 779. The Witnesses failed to yield to the warning and proceeded on their mission. The trial court found that the acts of the Witnesses in entering the town and stopping passers-by in the crowded street "might or would tend to incite riotous and disorderly conduct." 203 La., at 965, 14 So.2d, at 779. The Supreme Court of Louisiana set aside convictions for breach of the peace, holding that the defendants did not commit any unlawful act or pursue any disorderly course of conduct which would tend to disturb the peace, thus, in effect, that peaceful conduct, even though conceivably offensive to another class of the public, is not conduct which may be proscribed by Louisiana's disturbance of the peace statute without evidence that the actor conducted himself in some outwardly unruly manner.

The conclusion of the highest Louisiana court that the breach of the peace statute does not reach peaceful and orderly conduct is substantiated by the conclusion drawn from reading the statute as a whole. The catch-all provision under which the petitioners were tried and convicted

follows an enumeration of six specific offenses, each of which describes overtly tumultuous or disruptive behavior. It would therefore normally be interpreted in the light of the preceding sections as an effort to cover other forms of violence or loud and boisterous conduct not already listed.[^{Footnote 16} ] We do not mean to imply that an ejusdem generis reading of the statute is constitutionally compelled to the exclusion of other reasonable interpretations,[^{Footnote 17} ] but we do note that here such a reading is consistent with the Louisiana Supreme Court's application in Sanford.[^{Footnote 18} ]

Further evidence that Article 103 (7) was not designed to encompass the petitioners' conduct in these cases has been supplied by the Louisiana Legislature. Shortly after the events for which the petitioners were arrested took place, the legislature amended its disturbance of the peace statute in an obvious attempt to reach the type of activity involved in these cases.[^{Footnote 19} ] The contrast between the language of the present statute and the one under which the petitioners were convicted confirms the interpretation

given the general terms of the latter by the Supreme Court in State v. Sanford and the natural meaning of the words used in Article 103.

We are aware that the Louisiana courts have the final authority to interpret and, where they see fit, to reinterpret that State's legislation. However, we have seen no indication that the Louisiana Supreme Court has changed its Sanford interpretation of La. Rev. Stat., 1950, 14:103 (7), and we will not infer that an inferior Louisiana court intended to overrule a long-standing and reasonable interpretation of a state statute by that State's highest court. Our reluctance so to infer is supported, moreover, by the fact that State v. Sanford was argued by the petitioners to both the trial court and the Supreme Court, and that neither court mentioned in its opinion that Sanford was no longer to be the law in Louisiana.

We think that the above discussion would give ample support to a conclusion that Louisiana law requires a finding of outwardly boisterous or unruly conduct in order to charge a defendant with "foreseeably" disturbing or alarming the public. However, because this case comes to us from a state court and necessitates a delicate involvement in federal-state relations, we are willing to assume with the respondent that the Louisiana courts might construe the statute more broadly to encompass the traditional common-law concept of disturbing the peace. Thus construed, it might permit the police to prevent an imminent public commotion even though caused by peaceful and orderly conduct on the part of the accused. Cf. Cantwell v. Connecticut,  310 U.S. 296, 308 . We therefore treat these cases as though evidence of such imminent danger, as well as evidence of a defendant's active conduct which is outwardly provocative, could support a finding that the acts might "foreseeably disturb or alarm the public" under the Louisiana statute.

II.

Having determined what evidence is necessary to support a finding of disturbing the peace under Louisiana law, the ultimate question, as in Thompson v. City of Louisville, supra, is whether the records in these cases contain any such evidence. With appropriate notations to the slight differences in testimony in the other two cases, we again turn to the record in No. 28.[^{Footnote 20} ] The manager of the department store in which the lunch counter was located testified that after the students had taken their seats at the "white lunch counter" where he was also occupying a seat, he advised the waitress on duty to offer the petitioners service at the counter across the aisle which served Negroes. The petitioners, however, after being "advised that they would be served at the other counter," remained in their seats, and the manager continued eating his lunch at the same counter. In No. 26, where there were no facilities to serve colored persons, the petitioners were merely told that they couldn't be served, but were never even asked to move. In No. 27, a waitress testified that the petitioners were merely told that they would have to go "to the other side to be served." The petitioners not only made no speeches, they did not even speak to anyone except to order food; they carried no placards, and did nothing, beyond their mere presence at the lunch counter, to attract attention to themselves or to others. In none of the cases was there any testimony that the petitioners were told that their mere presence was causing, or was likely to cause, a disturbance of the peace, nor that the petitioners were ever asked to leave the counters or the establishments by anyone connected with the stores.

The manager in No. 28 testified that after finishing his meal he went to the telephone and called the police department, advising them that Negroes were in his store sitting at the lunch counter reserved for whites. This is the only case in which "the owner or his agent" notified the police of the petitioners' presence at the lunch counter, and even here the manager gave no indication to the officers that he feared any disturbance or that he had received any complaint concerning the petitioners' presence. In No. 27, a waitress testified that a bus driver sitting in the restaurant notified the police that "there were several colored people sitting at the lunch counter."[^{Footnote 21} ] In No. 26, the arresting officers were not summoned to the drugstore by anyone even remotely connected with Sitman's but, rather, by a call from an officer on his "beat" who had observed the petitioners sitting quietly at the lunch counter.

Although the manager of Kress' Department Store testified that the only conduct which he considered disruptive was the petitioners' mere presence at the counter, he did state that he called the police because he "feared that some disturbance might occur."[^{Footnote 22} ] However, his fear is completely unsubstantiated by the record. The manager continued eating his lunch in an apparently leisurely manner at the same counter at which the petitioners were sitting before calling the police. Moreover, not only did he fail to give the petitioners any warning of his alleged

"fear,"[^{Footnote 23} ] but he specifically testified to the fact that the petitioners were never asked to move or to leave the store. Nor did the witness elaborate on the basis of his fear except to state that "it isn't customary for the two races to sit together and eat together."[^{Footnote 24} ] In addition, there is no evidence that this alleged fear was ever communicated to the arresting officers, either at the time the manager made the initial call to police headquarters or when the police arrived at the store. Under these circumstances, the manager's general statement gives no support for the convictions within the meaning of Thompson v. City of Louisville, supra.

Subsequent to the manager's notification, the police arrived at the store and, without consulting the manager or anyone else on the premises, went directly to confront the petitioners. An officer asked the petitioners to leave the counter because "they were disturbing the peace and violating the law by sitting there." One of the students stated that she wished to get a glass of iced tea, but she and her friends were told, again by the police, that they were disturbing the peace by sitting at a counter reserved for whites and that they would have to leave. When the petitioners continued to occupy the seats, they were arrested, as the officer testified, for disturbing the peace "[b]y sitting there" "because that place was reserved for white people." The same officer testified that the petitioners had done nothing other than take seats at that particular lunch counter which he considered to be a breach of the peace.[^{Footnote 25} ]