Earl Warren: Number 68, Nathaniel Wright, et al., Petitioners, versus Georgia. Mr. Nabrit.
James M. Nabrit, III,: Mr. Chief Justice, may it please the Court. This case is on somewhat unlikely six cases which have preceded it this week and that here, arrest have been made for conduct on city property, city park property, managed by a city department but it is similar to those other six cases. And that here again, the police are engaged in enforcing segregation customs as if they were an extension of or part of the law. This case is before the Court on writ of certiorari to the Supreme Court of Georgia brought by six young Negro men from Savannah, who were convicted of the crime of unlawful assembly under Section 26-5301 of Georgia Code, that statute which appears on page 2 of our brief punishes any two or more person who assemble and this is the key language, assemble for the purpose of disturbing the public peace or committing any unlawful act and fails to disperse on the command of peace officers, etcetera. The petitioners were charged under an accusation filed substantially in the statutory language for assembling at Daffin Park in Savannah, Georgia for the purpose of disturbing the public peace. No reference was made in the accusation to the second clause relating to committing any unlawful act. And petitioners were convicted in the City Court of Savannah by a jury and sentenced to fines or to imprisonment in default of payment of the fines. On appeal, their convictions were affirmed by the Supreme Court of Georgia. In the courts below and here, we contend the petitioners have asserted due process claims that they were convicted without evidence of their guilt and convicted under a vague statute which denied them due process. I think it's important to look at the facts in some detail because of the no evidence claim. The four witnesses testified at the trial in the state court. Two of them were -- only two of them were witnesses to the incident which led to the arrest. They were the two arresting officers. The other two people who have testified were police sergeant who came upon the scene after the arrest had been made and the head of the city park department who wasn't there at all. It had no contact with the petitioners whether a witness to the incident. He didn't know about it until after. So that the facts I'm giving you, the arresting officers' version of what transpired and I submit that it demonstrates completely that the petitioners are guilty of no criminal acts of any kind. Now, on January 23rd, 1961 at about two o'clock in the afternoon, police officers Thompson and Hillers were on duty in Daffin Park which is a 50-acre recreational park which as I have said is managed and operated by the City of Savannah. They were in their currently --
Hugo L. Black: This is owned and operated by the City of Savannah?
James M. Nabrit, III,: I understand that that is the fact, Your Honor, and that there's no dispute about that. The testimony of the park manager at page -- beginning at the bottom of page 42, indicates that he is the superintendent of the recreational department of the city and as superintendent, he is overall the pick playgrounds in the city and later on in his testimony, he lists them and mentions the Daffin Park. There's no explicit statement about ownership but it's never been contested. And I'm sure that the city attorneys will confirm that. Now, where officers Thompson and Hillers were approached by a person who was identified only in the record as a white lady, and she is, according to Officer Thompson's testimony supposed have told them that there were colored people playing basketball in the park. And Officer Thompson made it clear that as soon as he heard this, he pres -- he and his fellow officer preceded immediately to the basketball court. He said, “I did not ask this white lady how old these people were. As soon as I found out these were colored people, I immediately went there.” And when Officers Thompson and Hillers got to the basketball court, they found the six petitioners playing basketball. Both officers agreed that that was all it was going on. Officer Hillers' testimony at page 50 says, “When I arrived, the defendants were playing basketball. They were not necessarily creating any disorder. They were just shooting at the goal. That's all they were doing. They weren't disturbing anything.” And Officer Thompson's testimony at page 41 is the same. He said that at the middle of the page, “I've observed the conduct of these people when they were on the basketball court and they were doing nothing besides playing basketball.” He goes on to say, they were normally playing basketball and no children around.
Hugo L. Black: There is what?
James M. Nabrit, III,: There were no children around. In the earlier point in his testimony, Mr. Justice Black, he had mentioned that there were schools in the neighborhood. That the schools let out at about 2:30 in the afternoon and that at that time, the children usually came to this area to play but that this was about two o'clock.
Hugo L. Black: Did you say that claim that basketball it was against the rule of the city to play basketball in the park?
James M. Nabrit, III,: The -- at per se, no, sir. No, sir. This facility was obviously designed for playing basketball.
Hugo L. Black: There's no claim by the city that it was not available for and use for playing basketball, is it not?
James M. Nabrit, III,: No. That is correct. The city in its brief in this Court makes an argument about a park rule or a claimed argument that this facility was for children and not for adults. This was something that was never relied upon by the arresting officer. Again on page 41, the officer expressly disclaimed any reliance on this. At the end of that first paragraph -- the first paragraph which starts on the page, Officer Thompson said, “I have never made previous arrests in Daffin Park because people played basketball there. I don't have any knowledge from myself that any certain age group is limited to any particular basketball court. I don't know the rules of the City Recreational Department.” Officer Thompson gave --
Earl Warren: Were any rules presented to the Court in this case, any written rules?
James M. Nabrit, III,: No, Your Honor. There were no written rules. There was some testimony by the park superintendent as to certain preferences and priorities that he had in his own mind. I submit that these were very vaguely defined and in part contradictory but the important thing is that there is no reason at all to think that the petitioners had any notice of what was in the park superintendent's mind or any reason to -- or an opportunity to know about it. The --
Hugo L. Black: Is there any finding of fact?
James M. Nabrit, III,: Your Honor, there's a general finding of guilty.
Hugo L. Black: That the persons like these, I'm not talking about colors but persons to play basketball in the park was prohibited by the city and applied to everybody in the same way.
James M. Nabrit, III,: Well, there is no indication to that of anything of that kind.
Hugo L. Black: Any fact, no finding to that effect.
James M. Nabrit, III,: There is only a general finding of guilty by the jury. There are no court findings in the record.
Hugo L. Black: Anything in the charge to the jury?
James M. Nabrit, III,: The charge -- no, sir. The charge to the jury contained no discussion of the evidence, no definition of the offense beyond a reading of the statute to the jury and a statement to them that these police officers were peace officers within the meaning of the statute. That was the only explanation of the statute given to the jury. Now, turning again to the scene when the officers arrived, they proceeded immediately upon arriving to order these petitioners to leave the basketball court. At this point, one petitioner asked the officer who, as Officer Thompson, who ordered him to come out here and what does authority well to come out here and order them all, and Officer Thompson responded that he didn't need any authority, he didn't need any orders. And another petitioner began to write down the officer's badge numbers and when they didn't leave after a few moments, they were all placed under arrest. Now, Officer Thompson --
Speaker: Is there any physical resistance from the officer?
James M. Nabrit, III,: No, sir. No indication of that at all. In fact, the State attempts to make something of the fact that these -- I don't quite understand how this helps the State's case but they attempt to argue something from the fact that the petitioners were cooperative with the officers and got in his car without any arguing and when they were placed under arrest. The -- when the -- Officer Thompson testified at the trial, he stated in language that is clear as day on page 41, that he had a racial reason for this arrest. Right in the middle of the page there, beginning of that paragraph he said, “I arrested these people for playing basketball in Daffin Park. One reason was because they were Negroes.” And everything about his conduct confirms that that was -- he's consistent with that reason. And that, he said that he immediately went to the scene when he found out that colored people were playing in the park. And there is additional testimony in the record that this park was one which it customarily been used only by white people. That the City of Savannah establishes its parks in colored and white neighborhood as such. That if the park superintendent testified that it was customary to use this park separately for the different races at page 45. Now, Officer Thompson also mentioned another reason which is if it means anything related to race but is really completely unsubstantiated, he said that he may -- he said at another point on page 40 that the purpose of asking them to leave was to keep them trouble which appeared to him might start and he referred to the fact that there were five or six cars driving around the park with white people in it. At another place on cross-examination, he acknowledged that these cars were on a driveway which passed the court, basketball courts, and that this was not unusual traffic for the time of the day. Curios thing about the testimony is that there's nothing at all -- at all to give us any information about the conduct, the demeanor of these people within the cars, there's nothing to even indicate that they observed the petitioners, that the petitioners observed them. There's no indication that they slowed down, that they drove by repeatedly. There's nothing at all to make -- to connect this up. And as a justification of substantiation the officers expressed for their fears of trouble might start. There was no one else around. There was no one else present on the -- in the area at all.
Hugo L. Black: Did the charge contain anything based on such an assumption that that was an issue?
James M. Nabrit, III,: The charge of the jury or the accusation?
Hugo L. Black: Yes, the charge to the jury.
James M. Nabrit, III,: The charge to the jury, Your Honor, which appears.
Hugo L. Black: I just read it. And I --
James M. Nabrit, III,: I don't think so.
Hugo L. Black: You seem to submit it on the fact that they were there and the officer ordered them to leave and they had to leave.
James M. Nabrit, III,: Well, that's right. That's how I view it, Your Honor. The -- but in any event, the -- this was one of the things expressed by the officer during the trial. Beyond this, there is none. Beyond this is completely unsubstantiated fear of trouble. And his positive statement that his other reason was because they were Negroes, that is the State's proof.
Hugo L. Black: The statute is broad enough to cover what was shown to be done here, is it not? Because it said, assemble for purpose of disturbing public peace or for committing any unlawful act must moved on and ordered by a judge, justice, sheriff, constable, court and not any other people.
James M. Nabrit, III,: I don't know if Your Honor misread that on that. It's unlawful act.
Hugo L. Black: I'm reading it -- I'm reading it from page 62.
James M. Nabrit, III,: It's for committing any unlawful act.
Hugo L. Black: It says here any lawful act probably has a strength as it appears in the Court --
James M. Nabrit, III,: You're reading from the judge's charge to the jury.
Hugo L. Black: Page 63.
James M. Nabrit, III,: That is a misquotation of the statute as it appears in the Code.
Hugo L. Black: Then it has --
James M. Nabrit, III,: Whether that represents what he read to the jury or not, Your Honor, I don't know. We have only the court report or certificates.
Hugo L. Black: It happened to be under the statute -- under the statute, they assemble for the purpose of disturbing the public peace or committing any unlawful act.
James M. Nabrit, III,: That's correct. The correct statute appears to be -- to my brief.
Hugo L. Black: But what did he charge to do would be the unlawful act?
James M. Nabrit, III,: The -- well, I don't believe that he charged them anything and I point out again as I attempted too early that the accusation itself never relied on that part of the statute committing any unlawful act. This is something which the court below also observed in its opinion when it said the only thing involved with the phrase ‘disturbing the public peace' or ‘purpose of disturbing a public peace'. In answer to Your Honor, the original question I'm at who ever this statute covered this conduct. I state that this statute is probably so vague and indefinite that it could cover almost any type of lawful conduct. This statute has been authoritatively construed by the Georgia Court of Appeals to go to cover acts which I consider beyond the common law meaning of this type -- to go beyond the common law concept of unlawful assembly and the only appellant decision construing this statute in a prosecution order, State against Sanders. This statute was applied to sit-in demonstrators on facts substantially the same as those in two of the cases in Garner against Louisiana. These were people who have not been ordered out of a store by any proprietor. And people who were there in sufferance of the proprietor who were ordered out by police officer. And in that opinion, it seems to me evident that the Court took this statute beyond any common law concept of disturbing a peace and applied it through the area of liberty protected by Due Process Clause.
Tom C. Clark: You mean as I understand -- are you saying that this statute which is a fairly common statute, isn't it this type on its face is vague?
James M. Nabrit, III,: I'm arguing.
Tom C. Clark: Or you're saying that there wasn't evidence to warrant a conviction under the statute.
James M. Nabrit, III,: I'm arguing -- I'm making both of those arguments and a third argument which I haven't express yet that the statute didn't give them fair warning, their particular acts were prohibited.
Tom C. Clark: What was argued in the Georgia Court as the federal basis for relief in the Supreme Court?
James M. Nabrit, III,: Yes, sir.
Tom C. Clark: Would you -- in the course of your argument, would you point out which of these was directed to the Georgia Supreme Court?
James M. Nabrit, III,: Your Honor has perhaps observed that the Georgia Supreme Court's opinion does not at all discuss the facts.
Tom C. Clark: That is correct.
James M. Nabrit, III,: And this is a curious thing that might attract the attention of the Court. It is our contention that the no evidence issue, the vagueness -- and the vagueness of the statute in all of the applications of that term were properly argued and preserved at every stage of the proceedings in the state court. The vague -- due process vagueness question was first raised in a demurrer. It was again raised in a motion for a new trial as it was the claim that there was no evidence upon which the defendants could be convicted. The assignments of error contended that the Court did err in overruling that motion for new trial which embodied the no evidence claim and a due process vagueness claim. The --
Tom C. Clark: Was there no evidence claim buttressed on the federal constitution?
James M. Nabrit, III,: The no evidence claim -- I think it's inherently a federal issue Your Honor that it appears at page 17 of the record. This is the -- there were six identical motions for new trial. This is the first one and paragraph one says that the verdict is contrary to evidence and without evidence to support. There was no particular reference at that point for the Due Process Clause but I believe that Thompson against the City of Louisville stands for the proposition that the conviction without evidence is inherently a due process matter. Now, the States --
Tom C. Clark: Was it the State's proposition that an allegation of this type or a complaint of this type is sufficient to direct the attention of the Court to the federal question involved?
James M. Nabrit, III,: Well, I don't believe that Thompson indicates anything on that one way or another. However, I submit that this Court -- this Georgia Supreme Court's attention wasn't directed to the problem which we're attempted to raise here. I'll try to tell you why. The basis upon which the Georgia Supreme Court determined currently not to consider the evidence was a theory that the petitioners, the defendants there, had impliedly abandoned their claim that the -- there was error in overruling the motion for new trial by their brief in the Georgia Supreme Court. We -- when the record and the petition for certiorari were filed here certified copies of all of those briefs were deposited with the clerk here so that they're available for the Court to inspect. Now, we submit that that brief defines what will have of these petitioners and the court below. While it did not say in the section labeled argument, while there was no subsection saying, “We are now arguing our motion for new trial”, nevertheless did argue these due process issues. In that, it did argue the facts of the case. It did argue that the petitioners who were convicted for innocent acts. It did argue that the officer's conduct was arbitrary and capricious. There was a long quote from the language in the Yick Wo case about arbitrary application of statutes. And I might point out that when the Court decided Thompson against Louisville, it cited in support of the notion -- in support of the holding that conviction without evidence was a denial of due process. One of the cases that was cited was Yick Wo.
Speaker: Accounts have been said at the time the Supreme -- the state court had written.
James M. Nabrit, III,: I am inclined to think that it was. I don't know that the respective dates on hand Your Honor but I know that the date of decision in the State Supreme Court was November a year ago.
Speaker: November 1961.
James M. Nabrit, III,: Yes. I have no knowledge as to when the briefs are filed. The copies are deposited with the clerk and they very well indicate that. Now, I'd like to reserve the --
Potter Stewart: Mr. Thompson this is cited in the brief?
James M. Nabrit, III,: No, it was not Your Honor. I believe I'd like to reserve the balance of my time.
Earl Warren: You may. Mr. Garfunkel.
Sylvan A. Garfunkel: Mr. Chief Justice and Associate Justices. I should like to state at the beginning that the City of Georgia and we are not city attorneys; we're the District Attorney's Office. They call us Solicitor Generals and I'm Chief Assistant Solicitor General in the circuit which is Savannah. We admit that this was a city operated park. We further admit that it would be unconstitutional to practice segregation in such a park. We further admit and feel that if this statute was being used in a manner to preserve segregation in this park as a centrifuge to preserve segregation, then under the facts in this case, this case should be reversed and sent back and the defendants acquitted. However, we ask the Court to look at the record in this case and study the facts that were developed. As I heard on the news yesterday --
Earl Warren: Are those issues without those issues with that -- those issues be before us to determine?
Sylvan A. Garfunkel: Yes, sir. That's what I was coming to now.
Earl Warren: Yes.
Sylvan A. Garfunkel: As I heard the arguments yesterday, the Court several term referred to the question of what was the policy. And as Mr. Nabrit referred to the park superintendent having testified in the development of this case on cross-examination of the -- would understood that the park was being made that these people were arrested because they were Negroes. It was, therefore, we put the park superintendent on the stand to outline for the jury and the court below, and the Court of Appeals, and when the case came to this Court for this Court to understand the policy of the park playgrounds in Savannah. And I therefore would like to refer to the Court to page 42 of the record which is the testimony of the playground superintendent, in which he outlined the way the parks were setup in Savannah. He said, “We tried to put them in areas, wide areas, and in colored areas, although, we have several which are now mixed areas park extensions, and wells park because in certain areas the -- and they play together.” He says, “That has occurred from time to time, that colored children would play in the Daffin Park area and in the park extension area but no action had been taken because it is legal, it is allowed, and nobody has said anything about it. “That is in the middle of page 43 of the -- of the record.
William O. Douglas: As Mr. Hagan.
Sylvan A. Garfunkel: This is Mr. Hagan, the park superintendent, Your Honor. He said then further on the bottom of the page the playground areas, in further explaining, the playground areas are basically for young children, say 15 to 16 and under along that age group. We give priorities to the playground to the younger children over the grownups. It made no difference as to whether they were white or colored. Anytime that we requested anyone to do something and they refuse, we would ask the police to stop -- it says stop and it's a misprint should be step. If we would ask them to leave when they did not, we would ask the police to step in. We have other reports of colored children who have played on the park extension but they were never arrested or told to leave. He further -- he referred earlier at the course that they had played in the Daffin Park area and not been arrested. The facts in this case showed that these defendants were grown men, the youngest of which was 23 years of age and the oldest of which was 32 years of age. That they went upon this playground around 1:30 or 2:00 in the afternoon during a school day.At that time, they were dressed not for playing basketball, but dressed more for business purposes, that is they had all the hard shoes, they had on shirts, jackets, I think some of them might even had ties on them, I'm not sure of the police officer. Well --
Earl Warren: Is that against the rule?
Sylvan A. Garfunkel: No, sir. But it was to go into the question of the bonafide as we -- the purpose of the question of the intent. That came into the intent because the defendants constantly said they were just merely there for the purpose of playing basketball. And we said the intent was not to play basketball and although, they've denied this all the way down up to this Court, in their brief in this Court. They say that perhaps it was not to play basketball but to make a profound nonverbal expression against segregation in public parks. That's the way they put it so that in order to come into a question of free speech. However, Mr. Hagan further along with his testimony, said that he further testified that if there were conflict between the younger people and the older people using the park facilities, the preference would be for the younger people to use them. But the -- we have no objections to all the people using the facilities if there are no younger people present or if they are not -- or if they are not scheduled to be used by the younger people. He said, and this is on further direct examination, “It has been accustomed to use the park separately for the different races but I couldn't say whether or not a permit would or would not be issued to a person of color if that person came to my office in the recreational department or requested a permit to play on the courts but I don't have the opinion that it would have been. We have never refused one. The request has never been made.” In other words, he says if they came, we would grant them but nobody has ever come and asked and so I can't say that we have done it because nobody has requested it.
Speaker: What does the record shows to whether there were younger people who wanted to play basketball?
Sylvan A. Garfunkel: I'm trying to come to that right -- right now Your Honor. The -- further, I would like to give -- to go on to Mr. Hagan's point because then I'll come back to the actual facts. On school days and this was a school day, these courts and the playground area are at -- at Daffin Park are available for only certain age groups and they are only used at that time of day by the schools in that vicinity. It is more or less left available for them. That is the way we have our recreation set up. In other words, at this time, this park, this playground, was reserved -- I think the evidence shows that there were two schools right across the street, was reserved for the use of these schools. And he further said that all during the day, these people came from the various schools to play not just during recess but they had physical education activities in which they would come out and play on these playgrounds. And that all during the day, this particular moment, they might not be there. They would be -- momentarily they might come in the next five minutes and a policeman knew definitely that the school would be out at 2:30, and at that time, he knew the children would be coming across to play on the playground. And that this was -- and this policeman so testified in Court that he knew these children were coming.
Hugo L. Black: Was there any issue of this kind submitted to the jury?
Sylvan A. Garfunkel: Yes, sir. This was all evidence that went before the jury.
Hugo L. Black: I'm not talking about evidence. Did the Court charge the jury on that the issue which you were discussing?
Sylvan A. Garfunkel: Mr. Justice Black, in the Georgia procedure, we have what is known and colloquially as what as known as the Dumb Act. And that is that the judge is not able to comment on the evidence. He cannot comment one way or the other on the evidence. He merely charges the jury on the law.
Hugo L. Black: But he said -- he said, “I have not charged you fully on the law”, but then he charged on the law with reference to some rule that they had that these people had violated.
Sylvan A. Garfunkel: Well the rule know what they had violated with --
Hugo L. Black: On practice on precedent.
Sylvan A. Garfunkel: They had violated -- no. what he charged them was that they had violated the order of the police officer.
Hugo L. Black: Orders of the police officer but is it the law as you understand it in Georgia that a man's charge during the defense of during accepting, it's unlawful and the police officer director orders him to leave that when tried they do not submit any issue to him except whether he had to move when an officer told him.
Sylvan A. Garfunkel: Is it your -- is the general verdict, it is only a general verdict. There's no --
Hugo L. Black: I understand the general verdict but does the State have to prove its case?
Sylvan A. Garfunkel: The State attempt to prove its case --
Hugo L. Black: Yes, but not of its case what you've been arguing to us here that these people were violating the rule because they were playing at the time when children should play?
Sylvan A. Garfunkel: No, the Court did not go into detail as to whether it violated the rule.
Hugo L. Black: But he mentioned it, didn't he?
Sylvan A. Garfunkel: No, he did not. He mentioned in the -- only that they were charged with going on the purpose and this was the question of whether this was an intent to disturb the peace. All of these were taken into consideration.
Hugo L. Black: But maybe it doesn't affect your argument saying here but as far as the charge is concerned, nothing like this was even pointed out in the charge.
Sylvan A. Garfunkel: Of the trial judge.
Hugo L. Black: If you are supposed to be charge, I suppose, but the law is what they had violated (Voice Overlap).
Sylvan A. Garfunkel: The usual trial -- the judges and the courts below of the Georgia courts.
Hugo L. Black: He didn't charge him what would be -- on what they passed on as being lawful or unlawful or except that you say they disobeyed the policeman.
Sylvan A. Garfunkel: They were not charged with doing something unlawful Your Honor. They were charged with going on the playgrounds for the purpose of disturbing the peace.
Hugo L. Black: Disturbing the peace or there were some other unlawful acts?
Sylvan A. Garfunkel: No, sir. No.
Hugo L. Black: Alright, disturbing the peace.
Sylvan A. Garfunkel: Disturbing the peace, there was nothing --
Hugo L. Black: Did he charge them on what would amount to disturbance of the peace?
Sylvan A. Garfunkel: Not in detail, Your Honor.
Hugo L. Black: Did he charge him at all?
Sylvan A. Garfunkel: He charged them, and I'll have to get his charge sir.
Hugo L. Black: But it wouldn't disturb the peace. What if they were there not violating any rules and not violating any rule as he said it?
Sylvan A. Garfunkel: Not generic. This is the key and this is the statute of the way we were arguing it to the Court. The statute becomes violated not by disturbing the peace but by two or more people assembling for the purpose of disturbing the peace. Not of the purpose that the peace has to be disturbed but assembling --
Hugo L. Black: But if they weren't disturbed, they wouldn't assemble for the purpose of disturbing the peace, wouldn't they, if they assemble to do first of all, a lawful act on the park?
Sylvan A. Garfunkel: But it became unlawful when they refuse to obey the police officer's request to leave.
Hugo L. Black: But then they finally get back to the fact. You're saying that under your Georgia statute, the policeman has complete power and one of their contentions was I believe, that has vested them with arbitrary power. He has complete power to determine whether they've already done something for the purpose of violating the peace.
Sylvan A. Garfunkel: So then it's up to the jury to so determine and in fact have to find --
Hugo L. Black: If they have tried, what would be then?
Sylvan A. Garfunkel: If they thought that the policeman was correct. Now the -- that question has not been raised very much but the recent case that is very interesting from the Court of Appeals in New York, People versus Galvin. And in that case, one of those -- one of the million cases, Mr. (Inaudible) Galvin was a member of the bar of the State of New York and the reference is made under my brief. I won't cite the citation. And he had come out of arrest and he was standing on the sidewalk talking to some friends of his. And a policeman came along and said, “Would you please move.” And he says, “I don't have to move. I'm on the public sidewalk.” And the policeman arrested him for somewhat -- under somewhat the most statute in the State of New York. This -- he was convicted. This went all the way up to the Court of Appeals in New York and they were faced with somewhat to some of them because there, he says, he was probably on the sidewalk. And the Court said that the policeman had a right to believe that they might block the sidewalk. And as the policeman felt in his mind and he may bona fide made a request. In his mind that there was at that chance, that refusing to obey the police officer at that time could then may very well be -- was a disturbance of the police peace for which the jury or the judge sitting as a jury could convict him. And they affirmed his conviction. And the record showed that there was no disorder that was all talked very friendly, there were no harsh words or anything else. It was just a request made by a policeman.
Hugo L. Black: I understand though. I understand your citation of that case as a justification of what was done for that and maybe the way the jury was charged, that's what I think, the only thing submitted to them. Did the policeman ordered him to go away and did they stay? I see no other issues submitted except that and that case to which you refer maybe wholly irrelevant on that.
Sylvan A. Garfunkel: And that then we have the further question of the Supreme Court of Georgia construing its statute in which I think this Court held in Garner versus Louisiana, that it was up to the Court, Highest Court, to construe the meaning of its own statute and when it was violated. The question that I see would be presented to this Court would be two; first, was the statute used as a veil to preserve segregation? And second, was there any evidence whatsoever to justify the police officer to believe that the breach of the peace was eminent or might happen to cause him to ask and to leave? Was he bona fide in asking them to leave?
Arthur J. Goldberg: What the general -- what in this record would leave the police officer to believe that?
Sylvan A. Garfunkel: That's right. Yes sir. I'm glad, Mr. Justice Goldberg, you brought that up because there are several issues. First that these children were there, whether they were coming and they expected them there, he testified, Officer Hillers testified and that is on the record or rather Officer Thompson, I believe --
Arthur J. Goldberg: 41
Sylvan A. Garfunkel: Right.
Arthur J. Goldberg: He said he made this arrest around two o'clock and the schools let at around 2:30 and it would have been at least 30 minutes before any children would have been in this particular area.
Sylvan A. Garfunkel: That is true. But Your Honor at what point was it being necessary for him to tell them to leave this playground. Under the rules of the playground commission, the playground was available for these school children all during the day.
Arthur J. Goldberg: But that isn't what the superintendent said. Precisely you read part of it, did he not also say on page 48 that, “That basketball court was not scheduled. It would be compatible with our program for them to use it and we would not mind them using it.” Then he further say on page 47 that, “I don't know whether or not we had a plan program arranged for the day that these arrests were made.”
Sylvan A. Garfunkel: But early above that Your Honor he said, when he was -- this was an answer to a hypothetical question. And that this is the total answer. If your plan program did not have the 23rd of January, 1961, set aside for any particular activity, would it have been permissible to use this basketball court in Daffin Park in the absence of children? And his answer said, “Well, I can't very well answer that question because you have several questions in one. First, I would like to say that normally we would not schedule anything for that time of the day because of the school's using the total area there,” so that at that time, it was reserved according to the first part of his testimony. Then in going to try and help the -- answering this hypothetical question, he said, “If we had not had something scheduled at that time of the day, then we would have granted information.” But at that time the total area was reserved for the school children. Now --
Earl Warren: Who's -- whose witness was this man?
Sylvan A. Garfunkel: This man was the State's witness when the defense started to develop the fact that they were arrested solely because of the fact that they were Negroes.
Earl Warren: Aren't you bound by his cross-examination?
Sylvan A. Garfunkel: Yes, sir. But this -- this was the all answer. This -- to what Mr. Justice Goldberg asked me was. He said don't give me the quote of the last part. And this was the first part of the answer to the same question that had been asked. In other words, this answer goes on for almost half of page. And he said at the first that, “at that time of day, this playground was reserved for the schools.” Then in going along further, they said, “You have to ask him several questions in one if they have not been reserved.” He said, “If all that basketball court was not scheduled, it would be compatible with our program for them to use it, and we would not mind them using it. And if there was a permanent issue, there would be no objections as to race, creed, or color. In other words, that is the last part of the answer.
Earl Warren: And then -- and then he also said that he didn't know whether it was schedule -- anything scheduled or not, didn't he?
Sylvan A. Garfunkel: He says, “We never know when they are coming in one part. That is the parochial schools use it during recess and lunch breaks and also for sport. As also the Lutherans schools and the public schools bring their students out there by bus in various times during school hours all day long. We never know when they are coming and they use Kent Park the same way.” And I might add now Kent Park is a park area in the colored section. And I think what the interpretation of his answer is that he personally doesn't know if the schools are going to bring somebody around there at ten o'clock, at twelve o'clock, or one o'clock. But as far as the playground as far as the playground department is concerned, those playgrounds are exclusively for the use of the schools during those hours or whenever they want to use it.
Arthur J. Goldberg: But this was not invalid in any regulation known to anybody, is that correct general? Because as I read his testimony on page 46, he says there is no regulation for playing on a court when it is not in use and there is no one around.
Sylvan A. Garfunkel: That is correct sir. There was no printed regulation and there was no -- and what we state this, Mr. Justice Goldberg, that the going or merely going upon the park grounds and playing the basketball is not criminal. And if they had walked up, the policeman had walked up to him and said, “I am arresting you. You are -- and we'll let you argue with the misdemeanor” is a basic unfairness in such a statute because obviously no one would know that he has violated or was violating something. But it becomes -- the fairness in this is that it does not become a misdemeanor until he is asked to leave and refuses to leave and asked to leave by a peace officer who is a policeman wearing a -- a police officer wearing a uniform.
Arthur J. Goldberg: So it's your contention that substance is, there being no regulation against the use when it is not being used by anyone else. There being no children evident in the vicinities since they were not out of school until 2:30. Then it becomes a disturbance of the peace, that the group of men are there playing using an empty court, it becomes a disturbance of the peace if you do not obey a police officer or an officer when he says, “While they're here legally and properly and not against any regulation, I tell you now to move on.” Is that disturbance of the peace?
Sylvan A. Garfunkel: The police officer didn't actually tell them that while you are here legally and properly --
Arthur J. Goldberg: But I mean the --
Sylvan A. Garfunkel: Because the --
Arthur J. Goldberg: -- the superintendent said that they were there illegally and --
Sylvan A. Garfunkel: No, I think the superintendent said if they hadn't been scheduled but at that time they just played there, they would not have been allowed to play.
Arthur J. Goldberg: But the -- didn't we both agree a moment ago that there is no regulation for playing on a court when it is not in use and there's no one around?
Sylvan A. Garfunkel: Well, there's no printed regulation but there's a regulation of the park. I mean that's the way they regulate the parks. If he want -- we will put it if that's the way the park superintendent regulates the park. Now, if you -- if they had printed, if you're saying are there printed regulations and posted and all of that, I would say, no, but there is this regulation in the sense that that is the way the parks are run.
Arthur J. Goldberg: But here then would you define what constituted the disturbance of the peace under these circumstances.
Sylvan A. Garfunkel: Yes, sir. The disturbance of the peace out of these circumstances, Your Honor, was that they were had gone there, we feel, and to think the record shows because they went there that to what they thought was to test segregation. The police officer said, “I --
Arthur J. Goldberg: Is that illegal?
Sylvan A. Garfunkel: No, sir. It's not illegal. But the police officer said on other occasions, “I have seen colored children in Daffin Park and I have not arrested them because I -- but in these circumstances I did.” Now, I think what we are faced with is, the police officer was exercising a question of judgment. What did he -- did he bonafidely feel that there could be a disturbance of the peace. Now, not that they were disturbing the peace but by their actions caused others to disturb the peace and --
Speaker: Mr. Garfunkel, could I ask this question?
Sylvan A. Garfunkel: Yes, sir.
Speaker: The basis of the statute you mean to say should be taken mainly that the defense is this being a proper question for his argument, what do you do with the statement that the -- it seems to be understood that the arresting officer so said that one consideration would let the command whether this man was a (Inaudible).
Sylvan A. Garfunkel: Yes, sir. I --
Speaker: Is that consideration?
Sylvan A. Garfunkel: That is the -- if that was the overriding consideration for the men's arrest, I would say that this case should be reversed.
Speaker: And you don't get to any question of the sufficiency of the evidence or anything absolutely --
Sylvan A. Garfunkel: If I'm going -- the question as to --
Speaker: I wish you'd deal with that point.
Sylvan A. Garfunkel: Yes, sir. The question present wouldn't in the -- by in the briefs. The question presented by the petitioner and the way the question is presented by the respondent expressly states that because in -- in our brief, we have put the question in this manner and we feel that the evidence shows it. Whether the conviction of petitions for unlawful assembly denied them due process of law under the Fourteenth Amendment when they were convicted on evidence which showed that they were grown Negro men, who took over a playground in a predominantly white neighborhood, at the time when the playground was reserved for and was to be used by school children, and they refused to leave when requested by the police. Now, the reason he said he asked them to leave was because he expected the children. Now, they say that children -- he said he knew the children will be there by 2:30. He knew they were going to be there by 2:30. They could have come earlier. He asked them to leave. Now, here we are in a predominantly white area --
Hugo L. Black: What does that have to do that?
Sylvan A. Garfunkel: Your Honor, because they asked the question of --
Hugo L. Black: (Voice Overlap) a classification of this.
Sylvan A. Garfunkel: Yes. He said that they asked on cross-examination. It was one of the reasons you arrested them because they were Negro. And he said partly, one of the reasons was but the overriding reason that --
Hugo L. Black: But -- why should you include in your question then unless it was based on color, the base that it was in a predominantly white neighborhood?
Sylvan A. Garfunkel: Because the evidence showed it was in a predominantly white area --
Hugo L. Black: Alright.
Sylvan A. Garfunkel: Because it was part of the thing that he was felt -- he felt --
Hugo L. Black: If you don't get -- it shows here that your law is alright if you provide that their parks are located in a predominantly white neighborhood, people can be excluded on that kind of their color?
Sylvan A. Garfunkel: No, sir.
Hugo L. Black: But what does that have to do --
Sylvan A. Garfunkel: We would -- because the question was asked the police officer. And we said -- and that was on cross-examination. If this had been white adult man, they would still have been asked to leave. But the fact that they were Negro added to the fear of the police officer, that here they were on a playground at that time was reserved for these children. And the park superintendent says, “We keep them separate as to groups because it's not good park policy to have grown people on a playground which is reserved for children.” He says, “We don't want it.” And that is in the record. Now, here with these people in -- who if they had been adult white men would still have been requested to leave? But the question on cross-examination was asked said, “Well what's part of the reason, was it read this as partly.” Well of course in the policeman's eyes, it's a fact I can't deny it, that the fact that they had been therefore to -- were asked to leave that there was a further chance of a disturbance of the peace because of the fact that they were Negro. That was merely -- that is not the overriding consideration.
Hugo L. Black: What is -- do you think that would have been efficient ground to exclude them?
Sylvan A. Garfunkel: Which one sir?
Hugo L. Black: The one that they were colored and just part within a predominant --
Sylvan A. Garfunkel: No, sir. That would not have been sufficient and if that was the overriding reason, I would say this case should be reversed. But the overriding reason had not -- color had nothing to do.
Hugo L. Black: Suppose that's one of the reasons to say --
Sylvan A. Garfunkel: That now -- that is --
Hugo L. Black: Does that make any difference?
Sylvan A. Garfunkel: We feel that if the fact that one of the reasons that the police officer says, if there is a --
Hugo L. Black: (Voice Overlap)
Sylvan A. Garfunkel: Yes. If there is a legitimate reason, reverse it. If there is a legitimate reason for the police officer to ask them to leave without regard to color, the fact that color might incidentally be part should not say that you would not be guilty. For instance, suppose white adult men went on the playground and they ask him to leave and this case came up on the record of the same type that they went there and played the same way. Then, it would be fact that these people were white not would that mean that they should be acquitted when colored in the same category would be -- would be convicted with color from the same category would be convicted -- would be acquitted.
Earl Warren: If these people were -- had been white people, would you have put in your question as you read it to us the fact that this was in a predominantly white neighbor?
Sylvan A. Garfunkel: No, sir. I would not. The only reason I mention that was because in the record it shows on cross-examination to the -- in our answer to one of the defense attorney's lawyer -- lawyers that -- one of the defense attorneys, was one of the reasons you asked that you arrested them because they were Negro or why -- “did you arrest them because they were Negro?” And in response to that question, he said, “Yes”, and that was what we put on the question because it was -- it had been -- it had been put into the case by the defense counsel.
Earl Warren: Why do you say that the predominant reason for the arrest was other than -- than because they were Negroes?
Sylvan A. Garfunkel: Because the facts that the State proved showed that colored children had played in that park on other times and never been arrested. The te -- undisputed testimony of the park superintendent was that there was -- that they had a right to play and it was legal. That the park superintendent was aware of the fact that colored children had played in that park and not been arrested. The arresting officer himself testified that he had seen colored children playing in that park and they had not been arrested. So that in this instance, I would now say one swallow wouldn't make a summer. One arrest of these people does not show quite a program of such segregation but there's this feeling that this would be a legitimate area of inquiry by this Court and by any of the high appellant courts. We, the State showed in its -- by putting this that this was not the reason because if it were the reason -- if this were the true reason, then it will also have been applicable to all of the other instances and they should have been arrested to show that.
Earl Warren: Then to the extent that -- that he was motivated by the fact that they were Negroes, the arrest would be illegal.
Sylvan A. Garfunkel: If that was the sole -- if that was the proper overriding reason. By that I mean if that was his motivating reason.
Earl Warren: Now you -- you say the other is the overriding reason. I understood Mr. Nabrit to say that one of these officers testified that they didn't know anything about the rules, they didn't know had any rules and they know what they were, and that he didn't, in effect, that he didn't arrest them because of the violation of the rules.
Sylvan A. Garfunkel: He arrested them. He said because in --
Earl Warren: Now was there -- is that true?
Sylvan A. Garfunkel: That is correct in this respect that he didn't know about the rules of the park but he did know of the facts that the children would be there. He knew that everyday, he arrives this street and he knew that everyday these children came out and played in the park during recess as he put it which was probably during their physical education or --
Earl Warren: But he didn't know there were any rules against anybody being there.
Sylvan A. Garfunkel: No, sir. He knew that that park was reserved for those children.
Earl Warren: Where did he say it?
Sylvan A. Garfunkel: He says that that “I knew that within half an hour in the --
Earl Warren: Within --
Sylvan A. Garfunkel: Officer Hillers or Officer Thompson. “Under ordinary circumstances, I would not arrest boys playing basketball on a public park. I made this arrest around 2:00 and the school is that around 2:30 and I would have been at least 30 minutes before the children.” Well, that was in cross-examination but the children from the schools -- it's page 40, middle of the page, “the children from the schools would have been out there shortly after that. The purpose of asking them to leave was to keep down trouble which looked to me like it might start”, and up to top. “There's a school nearby this basketball court. It is located at Washington Avenue in Bee Road, I mean, at Washington Avenue in Waters which is just across the street. There's another school on 44th Street. There are two schools nearby. I believe that they are both Drama Schools. I patrol that area and the children from these schools play there. They come there everyday, I believe. I believe they come there after -- afternoon when they get out of school and I believe they come there during recess.”
Earl Warren: But he also says, “I don't have any knowledge to myself, if any certain age group is limited to any particular basketball court, I don't know the rules of the City Recreation District.
Sylvan A. Garfunkel: That's right. That's right, sir.
Earl Warren: And still he -- he arrested them presumably for a violation of those rules plus the fact that they were Negroes.
Sylvan A. Garfunkel: No. He arrested them Your Honor for them failing to leave when he made this request.
Earl Warren: Well, but if they weren't doing anything illegal, if he had no knowledge of them violating any rules, then he have the right as a police officer just to move them along.
Sylvan A. Garfunkel: That is the -- well that is the main issue as we see in this case.
Earl Warren: Well, does he have that right as a police officer?
Sylvan A. Garfunkel: We feel as a police officer, he has the right to ascertain from the facts that he can tell from what's happening to determine whether he should make a request to leave. That it's a question of judgment that there might be a question whether if you or I or someone else was there whether we think that we should have asked them to leave. But when the police officer acting on the best available evidence the way he observes it, makes this request to leave. That if there is any evidence whatsoever to sustain him to show that this was a bona fide request that he was trying to keep down good order in the parks. That then that should be obeyed and that he would fairly to obey it, you're doing it as your peril where you might be right and you might be wrong. In other words, you say, “I did leave and I was right” just like some types of answers, go ahead and violate that law, it's unconstitutional. You violated at your peril and I think that when --
Earl Warren: That's true. What if -- if these people were doing nothing out of the way which he -- which he said. He said that they were just playing -- they're just playing there and doing nothing else and if that is true. And if it's true that he had no knowledge of the violation of any rules of the park, what is there in this case to indicate that these people were doing something unlawful for which they could be moved along by a police officer without an order?
Sylvan A. Garfunkel: We were not charging them we're doing something unlawful, Your Honor. We were charging them with going upon the parks for the purpose of disturbing the peace and in that --
Earl Warren: It was a public park.
Sylvan A. Garfunkel: That is correct, sir.
Earl Warren: Didn't they -- you admitted that they had the right to go there?
Sylvan A. Garfunkel: The -- they have to --
Earl Warren: Didn't you? I thought your opening statement was that they had the right to go to that park.
Sylvan A. Garfunkel: We said they have -- if the -- if this arrest was used for the purpose of preserving segregation in the park, we say that it should be reversed. We further state --
Earl Warren: Well, you mean that -- that although, you admit that that you don't admit that a Negro had a right to go on that court?
Sylvan A. Garfunkel: No. I -- the Negro had a right to go on that court but not for the purpose which they went on. In other words, they went on to see if what will happen. They went on to see if they can play.
Earl Warren: Well, I thought --
Sylvan A. Garfunkel: And as they -- at the time of day, what is that sir?
Earl Warren: I thought you also told us that you made no point of that, that they had a right to go there because it was legal under the rules of the park where Negroes or anybody could go in that park.
Sylvan A. Garfunkel: No, sir. I said that -- no, sir. I said that was the -- they have -- it was -- I admit that if there's no -- there's no park segregation but you do not have a right to go on to the park when the park is reserved for others and you're requested to leave. And we see the purpose is when they went on to this playground for the purpose of disturbing the peace not by their actions but by the reaction that they could get from the people around there. That if they had actually gone upon that park to play basketball, they would have acted in a different manner. That these were grown man, 23 to 32 years of age and they went on with the purpose of seeing not of their actions but the reaction and part of the -- part of the disturbance of the peace as we understand in our brief. In our brief to the Supreme Court of Georgia, we have dealt very extensively with that and that was made a part of this record. And part --
Earl Warren: But Mr. Schneider, I -- I must come back to this -- this statement. “I observed the conduct of these people when they were on the basketball court and they were doing nothing besides playing basketball. They were just normally playing basketball and none of the children from the schools were there at that particular time.” Now, what was it -- are you going to tell us that -- that because someone else driving around that park might get excited and might do something unconstitutional that these people can be put in jail --
Sylvan A. Garfunkel: But these, that --
Earl Warren: -- for not moving along and --
Sylvan A. Garfunkel: The unconstitutionality was not because at this time, this park was a well-known public playground that people riding around and we presume new that those children were coming because they'd come there everyday during school hours, and now here were these men who had come on this park at this time when these children were generally there and they took it over. And we say that this was a reaction --
Earl Warren: They took it over?
Sylvan A. Garfunkel: Well, they took over the playground. There was nobody else. The play -- certainly the school teachers or the children would not want to go on a playground. They would not -- not -- might want to go there but you -- you would not want them to go on the playground.
Earl Warren: Is that all there was on the playground just a basketball park?
Sylvan A. Garfunkel: No, there's the -- the record does not show it but I can state that there's swing and slides, there's a playground area. That's a very --
Earl Warren: -- rather large park.
Sylvan A. Garfunkel: It's a very large -- it's a very -- the -- it's a large park but the playground area is small. The playground area is at one end of the park. The rest of the park is devoted for other purposes. And the playground area is immediately across the street from these schools.
Earl Warren: Very well.
Hugo L. Black: Suppose you'd had a statute enjoined stating precisely what you've said here. There was the overall consideration for making it illegal for these people to stay there. In other words, you had a statute which said that if Georgia wants to -- wants to regulate the park and regulates it this way, where men go on the park, played and they are colored, and they are there the time when they should not be there, that's not what you've argued here as to what had happened, the -- they shall be committing an offense.
Sylvan A. Garfunkel: No, sir.
Hugo L. Black: Or they can be convicted of a defense.
Sylvan A. Garfunkel: No. Such a statute would certainly be unconstitutional because of the fact that it was -- part of it was --
Hugo L. Black: The Court had embraced it.
Sylvan A. Garfunkel: The Court embraced the fact that they were colored.
Hugo L. Black: Well, what was the reasons that this man gave for excluding these men for not one being it was color and if we didn't have to try to determine which was the overriding ground for the statute, if it was a statute, why would we have to decide when it's in this -- brought up in this neighborhood statute.
Sylvan A. Garfunkel: It -- the statute -- the question of the colored with what as if we're going into what is in the mind of the police officer as to why he asked them to leave. He said --
Hugo L. Black: He went in good and said he arrest them because they were colored.
Sylvan A. Garfunkel: No. He said first originally, “I arrested them because I was afraid of what might happen. Children were expected on the playground within a certain -- by 2:30.”
Hugo L. Black: And you also use the word he arrested them because they're colored, weren't they?
Sylvan A. Garfunkel: The police officer on cross-examination.
Hugo L. Black: But whatever it was --
Sylvan A. Garfunkel: Yes. Came back on cross-examination and said, i was one of the reasons or it was the reason that you arrested him because they were colored, he said, “well part”. But that was not the reason that he yield.
Hugo L. Black: I suppose that Georgia statute said partly because we don't -- do not want the people to play --
Sylvan A. Garfunkel: Statute would be unconstitutional.
Hugo L. Black: It would be unconstitutional.
Sylvan A. Garfunkel: That's right.
Hugo L. Black: Well, why wouldn't it be it if they try to do the same thing with other statutes?
Sylvan A. Garfunkel: But then the State of Georgia is not that is why we went into the other --
Hugo L. Black: But you have to extend --
Sylvan A. Garfunkel: Yes. That is why we -- yes. But I'm talking about that that is though in the record honestly, Your Honor. So that is why we went in to the other issues to show that under similar circumstances where there were children who were colored, they were not asked to leave or not arrested. That they -- because of the fact that to show that the reason for the arrest was not override -- primarily because they were colored, the reason for the arrest was because they were grown men. If they had been children and they would not have been arrested.
Hugo L. Black: Of course, if this were to be used as a device for the purpose of keeping colored men off, you'd agree that you can't do it.
Sylvan A. Garfunkel: That is exactly what I said at the beginning of my argument.
Hugo L. Black: Any more than you could disfranchise people by the grand --
Sylvan A. Garfunkel: That is exactly what I've said so that we were trying to show to the Court and to the jury by the testimony of the police officer that in other circumstances, colored children had been allowed to play on this playground, had not been arrested. So that this would differentiate and show that color was not and at the same police officer said that he had seen colored children playing out on this playground and had not arrested and ask them to move. But he said, “But this was different. These were grown men and this playground at that time was designed, was set aside, and I knew the children were coming.”
Hugo L. Black: Well suppose they only applied it to grown men when they were colored. He said, “These were colored and they were grown men.”
Sylvan A. Garfunkel: Then I think if the defense would have shown that that had been abused for a purpose that they were only applied to colored grown men, I think it would have been a valid defense and they should have been acquitted. I would like to call the Court's attention to the fact that no evidence was introduced by the defendants. The only witnesses were witnesses by the State.
Hugo L. Black: Why did they need to introduce and show the reason for the arrest when the man who made the arrest gave the reason?
Sylvan A. Garfunkel: Well, you go to the fact that, Your Honor, puts the question to me if they just arrested -- didn't arrest any white people or white men. I might say that nobody has been arrested, no colored man has been arrested, or no colored children had been arrested under this statute, and we have had no further difficulty on this question. This is the sole arrest that was made. Colored children had played on the parks and grown colored men had played on the parks during the afternoons after school hours. I don't know if they play in Daffin Park so much because it's -- as I say, it's further away from the colored area, but they do play quite extensively in park extension which is in the middle of the mixed area. And every afternoon, they're out there playing.
Hugo L. Black: In your view that if we find -- if we will have to find whether this was the overriding purpose and this is what you call the overriding purpose, Georgia has the right to do it.
Sylvan A. Garfunkel: I would say that the jury had a right to find the man guilty because of the fact that he was -- the overriding purpose was not -- whether the statute was not being used as a -- as a cloak to preserve segregation and it was not being used as a cloak to serve -- to preserve segregation, then we feel that it should be affirmed.
Hugo L. Black: What was the actual reason the officer gave to these petitioners?
Sylvan A. Garfunkel: The petitioners did not actually ask it. The petitioners -- he went up to the petitioners and said, asked them to leave but they said, “By what authority do you get here”, in a very sarcastic manner. And that was all. They did not ask why. I think if they had asked why they would be entitled to be given a reason. But the evidence of the officer says, he said, “By what reason?” he said, “Well I -- by what authority” and then he said, “Well, I'm going to have to ask you to leave and if you don't leave,” he says, and they just piled into his police car that he had -- that there were seven of them, he had to ask them to get out and wait until the cruiser because it couldn't carry them all. He said they look like -- the testimony of the officer said, “They look like they were waiting to be arrested.”
Earl Warren: Well, has somebody asked you to get out of the public park whether he's a police officer or not? What would be your question? Wouldn't you be likely to ask him for what reason or by what authority he was ordering you off?
Sylvan A. Garfunkel: I think that would be by what authority, but he said he put it in the way of what authority because the police -- he put it -- he did not -- he put it by what authority but he did not ask the question why are you asking me to leave or why are you asking us to leave? They were merely -- supposedly we said they're ready to be arrested the way from the -- the way the police officer said. They went on that park ground. They played when a police officer came up and ask them to leave. And he says if they don't leave, they said, “By what authority?” and then he says, “I'm going to have to arrest you” and says, they just piled right in there and that is in the record. The police officer it looked like to him.
Earl Warren: The fact that they went along with him peaceably after he arrested them --
Sylvan A. Garfunkel: No, not a question of --
Earl Warren: -- could be taken as evidence against the --
Sylvan A. Garfunkel: No. Not a question that they went along peaceably, Your Honor. But that they practically anticipated it. That's the point I'm getting at.
Earl Warren: Very well.
Hugo L. Black: Does your state permit arrests by the policeman where a man gets peacefully out of place without getting him arrested?
Sylvan A. Garfunkel: Our state -- I think the police officers in uniform and the police officer has a right to arrest a man for -- for committing an offense in his presence. Of course, this became an offense when he asked to leave and they didn't.
Hugo L. Black: Without telling him why?
Sylvan A. Garfunkel: It doesn't state whether you have to tell the man why at that time. I mean, it was perfectly obvious what was going on. I think if you were to be the man and say, “I'm going to arrest you”, the man will say, “Well what's my arrest?” He would tell him what I think the normal person would ordinarily say “Why are you arresting?” I think if I were some policeman say, he was going to arrest me the first question I'd ask him was why and I wouldn't probably say by what authority because I think this authority is uniform.
Hugo L. Black: He might choose other words.
Sylvan A. Garfunkel: Yes. But I think authority means --
Hugo L. Black: Now, let's suppose one of the first basic rules to that arrest here that you arrest a man, you got to tell him why, by what authority you got, wouldn't he have the right to resist it if he didn't?
Sylvan A. Garfunkel: If he is questioning the arrest, if he is questioning and suppose, and I'm talking about the questioning the reasons for the arrest. Now, if a man in -- if I were in plain clothes and I were a detective and I said to a man, “You're under arrest.” He might want to know by what authority that I have to arrest him. But he was a man in his uniform and the record shows that he was in his own uniform as a police officer. Now he says, “I'm going to have to ask you to leave.” And they say, “By what authority do you come out here to tell us such.” Then he said, if he has said, “Why” and the police officer said, “Well, there are going to be children out here on this playground in a few minutes, and we're asking you to leave to let them come out here.” I think it would have been a legitimate question for why and I think the policeman ultimate them a duty to tell them why. But they didn't go that far. As soon as he said, “I'm going to have to arrest you”, they immediately piled into the car. And that was why he said that they -- they anticipated all of these.
Hugo L. Black: His answer didn't encourage them to think that he was anxious to let them know why he was arresting them.
Sylvan A. Garfunkel: I think Your Honor that the record will show that most of the - the record shows most of the sarcasm or all the sarcasm was on the part of the defendants. There's no record and thing to show that the policeman did not act in a polite or courteous manner to these men.
Hugo L. Black: It's in there that they didn't act politely?
Sylvan A. Garfunkel: Yes, sir.
Hugo L. Black: When?
Sylvan A. Garfunkel: He says that that “One of them sarcastically asked me.”
Hugo L. Black: Sarcastically.
Sylvan A. Garfunkel: Yes, sir.
Hugo L. Black: You mean by the inflection of the voice?
Sylvan A. Garfunkel: I don't know exactly what I mean. All I know is that that's what the witness testified to Your Honor. On that point, that the witness was given. It's his opinion. One of them said sarcastically.
Earl Warren: But later he said they were in there peacefully, just playing basketball and doing nothing else, and it would be somewhat irritating wouldn't it to be thrown off of the --
Sylvan A. Garfunkel: But Your Honor --
Earl Warren: -- basketball court or out of the park.
Sylvan A. Garfunkel: -- let's see, it is the reaction that hurts that the -- to come to such order. It would hurt me a lot of things to be thrown out of anyway too. But it's the reaction that's call. For instance, let's use another example because I see it's very hard to realize that what we are saying is not their actions but it's the reaction that arises from their actions. Let us take this. I'm Jewish. I'm a member of the Orthodox faith. Now, there's a big difference between the Conservatives and the Orthodox. The main difference isn't seen mixed seating -- in Orthodox you have separate seating and Conservative you mixed seating. And I'll just say we have an Orthodox synagogue and they're having services on Saturday and a member of the synagogue is one of the things they should have mixed seating. So on a Saturday morning, he comes dressed with his wife and they go down and sit in the middle of the synagogue peaceably without doing anything, asking for -- for prayer here, and want to engage in prayers in there. They're not doing anything unlawful. They're not disturbing the peace per se. But I believe that you would have a tremendous reaction in a truly Orthodox synagogue by these people so sitting in the section reserved exclusively for men.
Earl Warren: But do you think if a man -- do you think if an Irish policeman came in there and said, “Get out of here.”
Sylvan A. Garfunkel: I think --
Earl Warren: Do you think that they wouldn't have a right to say, “By what authority do you do this?”
Sylvan A. Garfunkel: I think if they asked, “By what authority”, well I think -- by what authority they ask to come in, and I think if he said, “By the authority of my uniform”, I think they would be required to go.
William O. Douglas: But you've overlooked one other --
Sylvan A. Garfunkel: Yes, sir.
William O. Douglas: -- crucial fact here is that the State has sent somebody to prison or fine somebody --
Sylvan A. Garfunkel: Fine somebody. The fines where you would notice were $100 well, six of them -- five of them were $125 for the six and it was a reason for that. I mean there was no intent to -- to make a big case. It was just a question of whether they were -- had actually violated the --
Earl Warren: But if they don't have $100, they go to jail?
Sylvan A. Garfunkel: I think -- if they don't the $100, they would have to go to jail, wouldn't they? Thank you.
Earl Warren: Assistant General, very well. Mr. Nabrit.
James M. Nabrit, III,: May it please the Court. These were the first Negroes to play on this basketball court. There was some evidence that the young children had fished in Daffin Park. But all the witnesses agreed these were the first -- no colored children had played basketball here. As I understand the State's argument it is that Negro is welcome in this park and has the right to play there, but he doesn't have a right to come there for the purpose of finding out if there so. In any event, this is a segregated park to me where the only Negroes -- segregated basketball court where they only Negroes who go there get arrested. People against Galvin, a New York case was mentioned and that case involved no constitutional issue state or federal. This is direction of a state law. Now, this argument that com -- the State makes that there was a purpose to commit a breach of the peace is an intent to prove a state of mind. It's an attempt to prove a state of mind in a case where there's no admission of such a purpose and where there are no circumstances from which you could infer such a purpose. The circumstances of the State points to are, one, the fact that these are Negroes in a white neighborhood, and two, a claim that this playground was reserved. Now, if the -- if you accept the State's case as a strong case that maybe somehow this area was reserved for children, you still can't get an inference of an intent to commit a crime without making an unconstitutionally impermissible use of the statute to permit someone to be punished where he didn't know. They had no opportunity to know of this rule, that he was breaking the rule. There were no signs around that this was reserved for children. This -- there's nothing in this case, in Mr. Hagan's testimony remotely rising through the dignity of a rule or regulation. The best you can get is that he had a personal preference, department preference unexpressed to anyone until the trial for children to use the basketball court. And there are some -- in his testimony about of it being reserved for the use of the schools he says they are more or less left available for them. But there's no reason I think that the petitioners had any opportunity to know this. So the statute would be doubly vague. Indeed, this is very reminiscent of the problem in Niemotko against Maryland where the petitioners before this Court were convicted of disorderly conduct for holding a religious meeting in a public park where the -- there was no -- and the only claim of disorderly conduct was that they were there without a permit and there was no ordinance requiring that there'd be a permit, if -- and indeed no standards for the grant of a permit but the facts are somewhat analogous. Now, there is a contention that because children were going to be at this park in half an hour, perhaps this is a circumstance from which you can infer a breach of the peace. There's no evidence to indicate that the petitioners knew the children would be there in a half an hour. When they asked the officer by what authority -- I think I will read that testimony. One of the -- I don't know which one it was, this is Thompson testifying.
Speaker: What page?
James M. Nabrit, III,: Middle of page 40. He says, “One of the -- I don't know which one it was, came up and asked me, who gave me orders to come out there and by what authority I came out there. And I told them that I didn't need any orders to come out there.” You can translate that testimony about you can imagine what that officer really said. The -- but his own version of it is that he didn't -- he told that this -- he didn't need any orders to come out there and order them off. Well the point of this is that the --
Arthur J. Goldberg: Imagine what the officer said, can we also imagine that these fellows came out in the park to test the segregation questioned in the park and prepared to take the consequences of that if there might be some trouble if they did? Would that be a fair inference from this record?
James M. Nabrit, III,: I -- I think my argument is the same whichever way you look at that, Your Honor. I think that we can assume that a Negro going on to a customarily white basketball court in Savannah, Georgia is engaging in nonconformance conduct --
Arthur J. Goldberg: Which might create some problems?
James M. Nabrit, III,: That's right. But to me, that doesn't --
Arthur J. Goldberg: But you'd he had the right to do it. And that he would be protected and he has the right not arrested for exercise, is that what you said?
James M. Nabrit, III,: That's right. Now -- and to finish that, that the officers never connected. They're orders that lead to this problem of -- that the park was for children or to the half hour period. Actually, half hour is a pretty good period to engage in a basketball game especially when you get up around 30 years old. I respectfully submit that the judgment below should be reversed.