# Garner v. Louisiana/Concurrence Frankfurter

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Frankfurter Douglas Harlan
United States Supreme Court
368 U.S. 157
Garner v. Louisiana
Argued: Oct. 18 and 19, 1961. --- Decided: Dec 11, 1961
Mr. Justice FRANKFURTER, concurring in the judgment.
Whether state statutes are to be construed one way or another is a question of state law, final decision of which rests, of course, with the courts of the State. When as here those courts have not spelled out the meaning of a statute, this Court must extrapolate its allowable meaning and attribute that to the highest court of the State. We must do so in a manner that affords the widest latitude to state legislative power consistent with the United States Constitution.
Since LSA-R.S. 14:103 is concededly a statute aimed at 'disturbing the peace,' we begin with the breadth of meaning derived from that phrase in Town of Ponchatoula v. Bates, 173 La. 824, 138 So. 851, 852 (1931). To be sure, that amounted to an abstract discussion and in the limited circumstances considered by the Louisiana Supreme Court in State v. Sanford, 203 La. 961, 14 So.2d 778 (1943), the allowable scope of the statutory prohibition was not fully explored. But construction of the statute to prohibit non-violent, non-religious behavior in a private shop when that behavior has a tendency to disturb or alarm the public is fairly derivable from a reading of the Sanford opinion.
The action of the Louisiana Legislature in amending its statutes after the events now under review took place is not a safe or even relevant guide to the scope of the prior statute. Legislatures not uncommonly seek to make prior law more explicit or reiterate a prohibition by more emphatic concreteness. The rule of evidence that excludes proof of post-injury repairs offers a useful analogy here. See II Wigmore, Evidence, § 283 (Third ed. 1940). It is not our province to limit the meaning of a state statute beyond its confinement by reasonably read statecourt rulings.
Assuming for present purposes the constitutionality of a statute prohibiting non-violent activity that tends to provoke public alarm or disturbance, such a tendency, as a crucial element of a criminal offense, must be established by evidence disclosed in the record to sustain a conviction. A judge's private knowledge, or even 'knowledge by notoriety,' to use Dean Wigmore's phrase, IX Evidence, § 2569 (Third ed. 1940), not presented as part of the prosecution's case capable of being met by a defendant, is not an adequate basis, as a matter of due process, to establish an essential element of what is punished as crime. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654.
It may be unnecessary to require formal proof, even as to an issue crucial in determining guilt in a criminal prosecution, of what is incontestably obvious. But some showing cannot be dispensed with when an inference is at all doubtful. And it begs the whole question on the answer to which the validity of these convictions turns to assume that the 'public' tended to be alarmed by the conduct of the petitioners here disclosed. See Devlin, L.J., in Dingle v. Associated Newspapers, (1961) 2 Q.B. 162, 198. Conviction under this Louisiana statute cannot be sustained by reliance merely upon likely consequences in the generality of cases. Since particular persons are being sent to jail for conduct allegedly having a particular effect on a particular occasion under particular circumstances, it becomes necessary to appraise that conduct and effect by the particularity of evidence adduced.
The records in these cases, whatever variance in unimportant details they may show, contain no evidence of disturbance or alarm in the behavior of the cafe employees or customers or even passers-by, the relevant 'public' fairly in contemplation of these charges. What they do show was aptly summarized both in the testimony of the arresting police and in the recitation of the trial judge as the 'mere presence' of the petitioners.
Silent persistence in sitting after service is refused could no doubt conceivably exacerbate feelings to the boiling point. It is not fanciful speculation, however, that a proprietor who invites trade in most parts of his establishment and restricts it in another may change his policy when non-violently challenged. With records as barren as these of evidence from which a tendency to disturb or alarm the public immediately involved can be drawn, there is nothing before us on which to sustain such an inference from what may be hypothetically lodged in the unopened bosom of the local court.
Since the 'mere presence' that these records prove has, in any event, not been made a crime by the Louisiana statute under which these petitioners were charged, their convictions must be reversed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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