Appeal dismissed and certiorari denied.
Reported below: 236 Md. 349, 204 A. 2d 64.
Francis D. Murnaghan, Jr., for appellants.
Thomas B. Finan, Attorney General of Maryland, and Robert C. Murphy, Deputy Attorney General, for appellee.
The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.
MR. CHIEF JUSTICE WARREN, with whom MR. JUSTICE DOUGLAS joins, dissenting from the denial of certiorari. 1
On Sunday, September 6, 1959, Juretha Joyner and James L. Lacey, who are Negroes, and Helen W. Brown, Dale H. Drews and Joseph C. Sheeham, who are white, went to Gwynn Oak Park, an amusement park in Baltimore County, Maryland. Ironically, the park was celebrating "All Nations Day." Shortly after 3 p. m. they [381 U.S. 421, 422] were standing in a group by themselves and had, a park guard testified, attracted no attention from other patrons. The guard approached the group and told them that "we are very sorry but the park was closed to colored, and that the colored people would have to leave the premises . . . ." Mr. Lacey answered that he was enjoying himself and would like to look around some more, and neither he nor Miss Joyner complied with the request to leave. The guard then asked all five to leave, but they refused. He testified, however, that they "were all very polite." During this interchange between the guard and petitioners, other patrons of the park began to gather around.
Upon the refusal of petitioners to leave, the guard summoned the Baltimore County police, who, after asking petitioners to leave, placed them under arrest. Meanwhile, the crowd surrounding the petitioners grew larger and more hostile, even going so far as to kick, spit, and yell "Lynch them!" Neither the park officials nor the county police made any attempt to exclude from the park or arrest any of those who engaged in such conduct. Upon being informed of their arrest, the five joined arms briefly, and the three men then dropped to the ground and assumed a prostrate position. Petitioners Joyner and Brown remained on their feet. The police placed handcuffs on Miss Joyner, and escorted her and Miss Brown from the park. Though the police encountered some difficulty in pulling the women through the crowd, they left under their own power. The men, on the other hand, had to be carried out, but offered no active resistance. The only remark by any of the petitioners was made by one of the men, who, responding to mistreatment by someone in the crowd, said ". . . forgive him, he doesn't know what he is doing . . . ."
On April 5, 1960, petitioners Brown, Joyner, Drews and Sheeham were charged with "acting in a disorderly manner, to the disturbance of the public peace, at, in [381 U.S. 421, 423] or on Gwynn Oak Amusement Park, Inc., a body corporate, a place of public resort and amusement in Baltimore County" in violation of Md. Code Ann. Art. 27, 123 (1957 ed.). 2 Mr. Lacey was not prosecuted. Petitioners waived jury trial, were found guilty by the court, and each was fined $25 plus costs. 3 On January 18, 1961, the Maryland Court of Appeals, defining disorderly conduct as "the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area," 4 affirmed the convictions. 224 Md. 186, 192, 167 A. 2d 341, 343-344. On June 22, 1964, this Court vacated the judgments and remanded the case to the Court of Appeals for consideration in light of Griffin v. Maryland, 378 U.S. 130 , and Bell v. Maryland, 378 U.S. 226 . 378 U.S. 547 . On remand, the Court of Appeals, purporting to distinguish Griffin and Bell, reinstated and reaffirmed the prior judgments of conviction, Judge Oppenheimer dissenting. 236 Md. 349, 204 A. 2d 64.
I cannot concur in the Court's refusal to review this case. (1) There is in my mind serious question as to whether the conduct of petitioners can constitutionally be punished under a disorderly conduct statute. (2) It [381 U.S. 421, 424] seems to me apparent from the record that petitioners' conduct is protected under the Civil Rights Act of 1964, 78 Stat. 241, and that, under our decision in Hamm v. City of Rock Hill and Lupper v. Arkansas, 379 U.S. 306 , the passage of the Act must be deemed to have abated the convictions.
In Thompson v. Louisville, 362 U.S. 199 , the only evidence supporting the petitioner's disorderly conduct conviction was to the effect that, after being arrested on another charge, he was "very argumentative" with the arresting officers. We set aside the conviction on the ground that it was "so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Ibid. Thompson was followed in Garner v. Louisiana, 368 U.S. 157 , where the evidence showed that the petitioners, who were Negroes, had taken seats at a lunch counter where only white people were served, and had refused to leave upon request. For this they were convicted of disturbing the peace. For purposes of our decision, we gave the statute under which the petitioners were convicted its broadest possible readings, and assumed that it outlawed even peaceful and orderly conduct which foreseeably might cause a public commotion, id., at 169. Nonetheless, we found the petitioners' conduct constitutionally insufficient to support the conviction. 5 And in Barr v. City of Columbia, 378 U.S. 146 , we reversed a breach of the peace conviction based on conduct [381 U.S. 421, 425] similar to that involved in Garner. In doing so, we observed that
The two women did not even lie down. The only bit of testimony from which the trial judge could possibly have inferred disorderly behavior is the following:
Even if it be assumed that the arrest of petitioners was lawful, 6 I have great difficulty distinguishing the conduct [381 U.S. 421, 427] of the women, and, to a lesser extent, that of the men, from the refusals to leave segregated establishments which were before us in Garner and Barr. I cannot see how a statute outlawing "drunkenness and disorderly conduct" 7 can be said to have given petitioners fair warning, cf. Bouie v. City of Columbia, 378 U.S. 347 , that the conduct (or, in the case of the women, lack of conduct) in which they engaged was criminally punishable. 8 I cannot, at [381 U.S. 421, 428] least not without argument and full consideration by the Court, join in letting stand a decision which holds that police can arrest persons who are doing nothing remotely disorderly, secure in the knowledge that if the persons refuse wholeheartedly to cooperate in their own arrest and removal to a waiting squad car, their conviction for disorderly conduct will be forthcoming. 9
In Hamm v. City of Rock Hill and Lupper v. Arkansas, 379 U.S. 306, 308 , we held:
In two recent decisions, we have, rightly in my opinion, recognized that people denied service because of their race are likely to react with less than wholehearted cooperation. Today, I fear, the Court forgets that elemental principle of human conduct, and demands, on pain of criminal penalty, the patience of Job. In Blow v. North Carolina, 379 U.S. 684 , the evidence adduced at trial showed that the petitioners, two Negroes, were refused service in a restaurant, whereupon one proceeded to sit down on the floor mat outside the door, and the other stood near the door. They were convicted under a statute making it a crime to enter upon the lands of another without a license after being forbidden to do so. We held that the Civil Rights Act abated their convictions. In McKinnie v. Tennessee, 380 U.S. 449 , the petitioners, eight Negroes, entered the vestibule of a restaurant, were refused entrance into the restaurant proper, whereupon they remained in the vestibule, which measured 6' x 6' 4", for approximately 20 minutes. There was testimony that the petitioners had engaged in some pushing and shoving, but the evidence was unclear as to whether the pushing was initiated by the Negroes or was attributable to white people who, during the 20 minutes, entered the restaurant through the vestibule. Again, we held that the convictions (for conspiracy to injure trade or commerce) had been abated by the passage of the Civil Rights Act. In [381 U.S. 421, 430] each case we concluded that the conduct of the petitioners constituted no more than a peaceful refusal to acquiesce in a denial of their federal rights. I think we should draw the same conclusion here.
In dissenting, I of course do not suggest that a civil rights demonstrator, or anybody else, has a right to block traffic, or bar access to a man's home or place of business. I fully concur in the Court's observation in Cox v. Louisiana, 379 U.S. 536, 554 -555:
[ Footnote 2 ] Section 123 provides, in pertinent part:
[ Footnote 3 ] This Court has never (and I hope it never does) let the fact that the criminal penalty is relatively small stand in the way of reviewing a case presenting important constitutional questions. E. g., Thompson v. Louisville, 362 U.S. 199, 203 -204 ($10 fine); Yick Wo v. Hopkins, 118 U.S. 356 ($10 fine).
[ Footnote 5 ] In Garner the Court noted that the record did not support the allegation that the trial judge had taken judicial notice of the fact that the petitioners' presence in a segregated establishment was likely to cause a disturbance. 368 U.S., at 173 . Neither the trial transcript in the instant case nor the trial judge's memorandum opinion indicates that he took that sort of notice here.
[ Footnote 6 ] It is far from clear that the arrest was lawful. In view of the fact that 24-13 of the Baltimore County Code (1958) authorizes the appointment of special police officers "for the proper protection of persons and property in the county," it may well be that the guard who asked petitioners to leave the park enjoyed the same status as the officer involved in Griffin v. Maryland, 378 U.S. 130 . When this case was here the first time, we remanded it for consideration in light of [381 U.S. 421, 427] Griffin. However, only Judge Oppenheimer, dissenting, drew from our remand the meaning that, until today, I too had thought it was supposed to carry, and voted to remand the case to the trial court for an investigation of the relation between the guard and the county:
[ Footnote 7 ] With the conduct of petitioners herein, compare that of the defendants in Sharpe v. State, supra, note 6, and In re Cromwell, 232 Md. 409, 194 A. 2d 88. Also, compare Niemotko v. State, 194 Md. 247, 250, 71 A. 2d 9, 10, with Niemotko v. Maryland, 340 U.S. 268, 271 .
[ Footnote 8 ] Whether or not petitioners' conduct would support a conviction for something other than disturbing the peace I do not know. Nor [381 U.S. 421, 428] do I inquire, for "[c]onviction upon a charge not made would be sheer denial of due process." De Jonge v. Oregon, 299 U.S. 353, 362 . See also Garner v. Louisiana, 368 U.S. 157, 164 ; Thompson v. Louisville, 362 U.S. 199, 206 ; Cole v. Arkansas, 333 U.S. 196, 201 .
[ Footnote 9 ] It seems to me that the persons who were in fact guilty of disorderly conduct were the members of the crowd; however, none of them was prosecuted.
[ Footnote 10 ] There is a restaurant at Gwynn Oak Park; indeed, petitioners were standing next to it when they were arrested. If a substantial portion of the food served in that restaurant has moved in interstate commerce, the entire amusement park is a place of public accommodation under the Act. 201 (b) (2), 201 (b) (4), 201 (c). See also 201 (b) (3). If the Court were unwilling to assume that the restaurant serves a substantial portion of such food, the proper course would be to remand the case for a hearing on the issue. Since the Court denies certiorari, I assume that it is for some other reason that it [381 U.S. 421, 429] regards petitioners' conduct as not protected by the Act. I further assume that the fact that three of the petitioners are white is not the decisive factor, cf. Walker v. Georgia, ante, p. 355, since certiorari is denied as to the Negro petitioner too.