Earl Warren: Number 19, Harriett Louise Adderley, et al, petitioners versus Florida. Mr. Feder.
Richard Yale Feder: Mr. Chief Justice, may it please the Court. I should first like to present and move the admission of the Honorable William D. Roth, Attorney General staff of the State of Florida pro hac vice.
Earl Warren: Your motion is granted.
Richard Yale Feder: Mr. Chief Justice, may it please the Court. This Court granted certiorari to review the conviction of 32 Negro petitioners who were convicted of trespass with a malicious and mischievous intent in violation of a Florida statute. The question presented is, whether that conviction violated their constitutionally protected rights, due process, equal protection and the right to freedom of speech, petition and assembly. Where the trespass alleged was their presence on an open public piece of property adjacent to a county jail and where the alleged maliciousness and mischievousness was their peacefully and orderliness in protesting, both the segregated facilities of the County jail itself and the prior arrest of their fellow Florida A & M University students the day before for picketing to gain admittance to the all0white movie theaters in Tallahassee. All of these happened in September of 1963, slightly less than a year before the passage of the Civil Rights Act. The facts of this case, I don't think are in dispute. They established clearly that 200 students at Florida A & M decided to walk downtown in Tallahassee, Florida to protest the segregated facilities of their own county jail and wherein their own fellow students were kept and segregated jail cells for having attempted to gain admittance to an all-white movie theater. They walked through the downtown area of Tallahassee and they arrived at the County jail grounds which is roughly – the record discloses, about seven blocks from the main downtown section of Tallahassee and from the courthouse. They got to within about one and a half or two feet of the bottom step of the entrance of the jail. At this point, the chief jailer testified they were orderly, they were singing “Oh, Freedom” and other freedom song and they were clapping their hands. He asked them as they got to within one and a half feet and no closer to move to another area, grassy areas surrounding the jail. And they moved to the area he directed them. There was a diagram drawn and as I recall on the record, there was no measurement in the record and there was simply a picture drawn on the blackboard and someone forgot to ask the question of how far away this was. There is nothing in this record. But I gather it's the grassy lawns on the sidewalk probably within a hundred feet; but I don't know, I can't point anyway.
Speaker: Well, do you know the distance? Do you know the distance that they were standing?
Richard Yale Feder: I -- I can't agree because I don't know, Mr. Justice Harlan.
Earl Warren: May I ask how large the area was, the open area around the jail?
Richard Yale Feder: I don't believe that's on the record either, Mr. Chief Justice, other than that there was two parking lots, sidewalks around, and lawn. What width and distance, there is nothing in this record to establish. What the record does establish, there were 200 petitioners and 40 policemen and highway patrolmen and deputy sheriffs around them. And there is no mention that this blocked the sidewalk or the street. So that I gather it was a fairly large area but the dimensions of which I cannot advise the court.
Potter Stewart: It's a city jail or a county jail or state prison or what?
Richard Yale Feder: This was a county jail.
Potter Stewart: County jail?
Richard Yale Feder: Yes, sir.
Potter Stewart: Does the record show what the population of the jail was?
Richard Yale Feder: No, it does not, sir. There was evidence in this record that not only did the presence of the petitioners and their fellow students not interfere with the jail guards but that business went on as usual on the jail, this was testified to both by the chief jailer and by Sheriff Joyce when he arrived. He was not on the scene when the petitioners first arrived. There was a delivery man who entered to, I believe test the vending machines on presumes of cigarettes of coffee and candy and the like. He was not prevented from entering. Meanwhile, back at the Circuit Courthouse, the sheriff, Sheriff Joyce was discussing with the Circuit judges a pending lawsuit - this is on the record - brought against him for contempt for his encouraging the private places of public accommodation in Tallahassee to discriminate against colleague. And he immediately know that this particular protest, the presence of these students at the jail, was the protest to the arrest a day before of their fellow students who tried to get an admittance to the all-white movie theater. And he rushed to the jail. He testified he arrived and immediately checked the jail. This was his prime question and found everything was working along smoothly and undisturbed in jail. He then watched the petitioners for a while, came out and then he directed the petitioners to move to another area. Again, no identification of what the area was, but an admission by the sheriff that upon his request, the petitioners and the fellow students moved to that area. After watching for about 10 minutes, he testified he approached two people whom he called the “leaders”; one of them is the petitioner, petitioner Blue, one of whom was not a defendant below and he's not a petitioner here. And it was these individuals “leader”, who was not a defendant, who allegedly refused to advice his fellow students to move. The sheriff then waited another eight or ten minutes in accordance with his testimony. And for the first time spoke to the entire group of 200 students and said, “You are trespassing. If you don't move, you will be under arrest for trespass. And if you resist arrest, you will be charged with the additional charge of resisting arrest.”
Speaker: Is this prosecution under a general trespass statute?
Richard Yale Feder: Mr. Justice Harlan, I believe it is. The statute in question says, “Every trespass upon a property of another with a malicious and mischievous intent is punished by a certain fine. That's what it said.
Speaker: Is there -- there's no state -- no municipal ordinance that deals with the jails --trespassed on jails property?
Richard Yale Feder: No, Mr. Justice Harlan, we are dealing with the general nonspecific statute.
William J. Brennan, Jr.: Upon the properly of another is that the way you --
Richard Yale Feder: Upon property without, Mr. Justice Brennan. There's no identification that it says, “state property” it's just property of another.
William J. Brennan, Jr.: Well, this was -- this is a public property.
Richard Yale Feder: This was public property.
William J. Brennan, Jr.: Not private property?
Richard Yale Feder: No, Your Honor.
William J. Brennan, Jr.: The interpretation you give me in the statute as “property of another” includes public property?
Richard Yale Feder: Justice Brennan that was the interpretation given by the Second Court which is the Appellate Court in this case.
Hugo L. Black: What was the property?
Richard Yale Feder: It was the grassy area and sidewalk outside and adjacent to the County jail.
Hugo L. Black: To whom that --
Richard Yale Feder: This is public --
Hugo L. Black: -- part of the jail property?
Richard Yale Feder: It either was part of the jail, the sidewalk within the part of the public sidewalk property of the county.
Hugo L. Black: But there was part of it as the jail property itself not the sidewalk, is that right?
Richard Yale Feder: I'm sorry, Mr. Justice Black, I heard anything?
Hugo L. Black: What part of the demonstration or whatever it was on the jail property as distinguished from the sidewalk?
Richard Yale Feder: I presume so from the testimony of this grassy area. But there's no identification to that. There was no protest other than the one they first marched up or walked up actually, on the jail itself. They never got closer than by one and a half feet from the bottom step --
Potter Stewart: Was there a driveway or something at this –-
Richard Yale Feder: There was a driveway on which some of the petitioners were standing yes, sir.
Hugo L. Black: Tell me where. In a few feet of the stairs?
Richard Yale Feder: When they first came in not when they were told that if they didn't move that they'll be charged of trespassing.
Potter Stewart: And where did they move to from the driveway?
Richard Yale Feder: From the -- there's a walk way up to the front step to a portion of the driveway leading to the parking lot and to this grassy area inside it.
Potter Stewart: This is where they moved to when requested by the deputy sheriff to move away from steps, is that it?
Richard Yale Feder: Yes, Mr. Justice.
Byron R. White: And so, the trial judges' instructions were that the state has prove to you beyond a reasonable doubt that the property involved was in possession of the Sheriff of Leon County, acting in his capacity on behalf of Leon County. So I take it the jury had to find that this property was in the -- that was in possession of sheriff on behalf of the county. I mean it was jail property.
Richard Yale Feder: Yes, sir.
Speaker: The record show what was the part (Inaudible)?
Richard Yale Feder: It does reveal that high. At this point, the sheriff then said after waiting eight of ten minutes, “Leave or be arrested”. He then watched a current of time which in his words amounted to either one minute or two minutes or three minutes. And I believe in one point, he even went as far as say four minutes. He then saw some of the group sit down. He saw some of the group right as they sit down. The testimony of one the petitioners was that she had a sweater. She had – on the ground, she went down to get her sweater and at the time she was up, there was a hand on her and saying, “You are under arrest. Come with me.” And she went quietly, nonviolent.
William J. Brennan, Jr.: Incidentally, is there any evidence that the general public was excluded from this area? Is there any evidence on that subject?
Richard Yale Feder: There is no evidence on this record of exclusion of anyone from this area. In fact, I believe there is evidence on the record that other people watching this group in this area and the sheriff said they were not connected with the demonstration, Mr. Justice Brennan?
Hugo L. Black: Was the sheriff custodian of the jail and carry on --
Richard Yale Feder: Yes, Mr. Justice Black.
Hugo L. Black: -- under the law? (Inaudible)
Richard Yale Feder: Yes, Mr. Justice Black.
Hugo L. Black: Is that one of those old-fashioned country jailhouses where they have kind of a little plate, grass around them and then the sidewalk?
Richard Yale Feder: Yes, Mr. Justice Black. Though I don't think the people of Tallahassee which is the capital of Florida (Voice Overlap) is so small country jail. But --
William J. Brennan, Jr.: Evidently, an old one.
Richard Yale Feder: Yes, sir. Mr. Justice Brennan, as far as the fact that it was being open and used by public, I believe the state in its answer in response admits that this was a general open area that as far as someone walking by would presume it's a public sidewalk we a right to walk on. There's no sign, no fence, no nothing.
Hugo L. Black: That's the sidewalk?
Richard Yale Feder: And the grassy area. There was no sign, “Keep off the grass” in this particular case. In Tallahassee, they walk on the grass, Mr. Justice Black.
Tom C. Clark: I'm not clear with -- anybody can come in and out?
Richard Yale Feder: The only -- no, in answer to your question, Mr. Justice Clark, the only testimony that by possibly be construed in this respect, we have clear evidence from the chief jailer that the entrances were not blocked. We have the testimony that this vending machine operator would drove up on his truck to fill cigarettes and coffee and candy, walked out to the front door as if to leave and stopped. Now the State likes to presume from that that he was prevented from leaving because they were blocking the driveway. However, on two occasions, the petitioners were asked to move and they moved on both occasions.
William J. Brennan, Jr.: Incidentally, these were all students further?
Richard Yale Feder: Yes, Mr. Justice Brennan.
Tom C. Clark: I thought the sheriff just decided they could not leave (Inaudible)?
Richard Yale Feder: The only testimony as far as I read the record was that, he came to the door and didn't. A question was asked: “Could he have?” It was objected to and never asked to refrain in the proper manner. So we don't know whether he stood to watch this protest as there were other people watching or whether he physically could not leave. There's nothing in this record to establish that the driver attempted to leave and couldn't or was prevented from leaving.
Speaker: (Inaudible)
Richard Yale Feder: There were, in the testimony of the chief there are about 200 or so -- 32 of them were the defendants and the petitioners herein.
Tom C. Clark: Did any other get on the ground and sit down in there?
Richard Yale Feder: There was testimony of the sheriff that there are some did sit down on the ground but there was no identification that it was any of the 32 petitioners.
Speaker: Does the record show why (Inaudible)?
Richard Yale Feder: The record shows that these 40 highway patrolmen, deputy sheriffs and policemen simply closed in on the part of the group and marched them right into the jail.
Potter Stewart: You mean right directly from the grassy (Inaudible)?
Richard Yale Feder: Yes, sir.
Speaker: All 200?
Richard Yale Feder: No, they picked out. I think the sheriff said that he thought they had a 109 and someone else he had saw standing on the steps counting only got 106 and someone else said there were a 108. I wonder whether there was some escaping that they were bringing and I don't know. You don't have an accurate count?
Byron R. White: And again the Court found a 107.
Potter Stewart: Well it would pay some evidence at least in the record that the purpose of -- some of this people coming down there was to get arrested, to get themselves arrested?
Richard Yale Feder: There was testimony from one of the deputy sheriffs that he heard someone saying without identification of who was the one saying it, that they had come down to be arrested. The State seems to infer from this that this means that this people came down and knowing they were breaking the law. However, this does not appear on the record rather it appears on the fact that they obeyed a request to move to an area twice, willingly and quickly. In fact, the chief jailer said they move as quickly as 200 people could possibly move. But it was rather a desire to protest the prior arrest of their friends who had been arrested the day before for picketing in theaters and that if protesting the prior arrest would mean, they would get arrested, they were willing to be arrested. There is nothing in this record to establish that this people came down to enter into the jail. In fact, when they got to one and a half feet away and told to stop they moved back.
William J. Brennan, Jr.: What about this at page 32, Mr. Feder wherein sheriff testified in page 32? At this time, he said that he instructed the officers to surround the group and take them in custody. At this time, there was a lot of noise started about, “We came here to be arrested. That's what we wanted.” And blue and white post to that, got up from the ground and stood up and said, “White”. No resistance, no violence of any kind will march in, when they pass immediately, we march them into the basement of the jail.
Richard Yale Feder: Again, Mr. Justice Brennan, what I --
William J. Brennan, Jr.: I mean, is that what you were referring to as the evidence which bears on whether or not they came in to be here?
Richard Yale Feder: There is that, there's a second reference later on in the record by another deputy sheriff that he overhead some of this people saying, “We came to be arrested”. This is what the record contains as arrest. It simply that they came here to protest and if arrest is what would be the final result they would be arrested. They did so quietly and marched even as the sheriff says, --
Speaker: (Inaudible)
Richard Yale Feder: I really don't recall, Mr. Justice Harlan. I think the State after spending the time in trying these 32 dropped the balance of the trial.
Speaker: And if I ask you to do that (Inaudible)
Richard Yale Feder: I believe they stayed in jail. The balance of the 70 individuals.
Earl Warren: But then I didn't get your answer.
Richard Yale Feder: I'm sorry sir.
Earl Warren: What about the other 70, what happened there?
Richard Yale Feder: As I recall, Mr. Chief Justice, they were incarcerated.
Earl Warren: Oh, they were?
Richard Yale Feder: And then released later on.
Potter Stewart: I don't see why l get this. A 107 or whatever that figure is, 106, 105. It's the number that was taken into the jail itself, is that right?
Richard Yale Feder: Yes, Mr. Justice Stewart.
Potter Stewart: And on that group, only 32 were actually prosecuted under the Statute, is that it?
Richard Yale Feder: As I recall, that is the factual statistic.
Potter Stewart: And the convictions under the test of statute we have here are those 32, is that it?
Richard Yale Feder: Yes, Mr. Justice Stewart.
Potter Stewart: Is there anything that distinguished their conduct from the other 70 other?
Richard Yale Feder: No, sir. None whatsoever.
Speaker: Is there any evidence on the record that on other occasions it demonstrates (Inaudible)?
Richard Yale Feder: No, Mr. Justice Harlan. Nor is there any indication that anyone of them had been arrested before for trespassing on public property.
Speaker: (Inaudible)
Richard Yale Feder: No. No, Mr. Justice Harlan. There was testimony, I believe, of marching and parades and Cox is not here. Though, I think Cox does apply since you have a general vague nonspecific statute, here was in Cox you had a specific statute prohibiting even the appearance on a state-owned property. Herein this is -- there is no such indication of this statute that every trespass upon the property of another has been a direct trespass. You have the complete openness of the area and you have the too express, direct request of the sheriff and the chief jailer to go to a particular area while they were protesting under a band of both of those directions to protest in the directed to area. The only purpose of this statute in this conviction was to prevent and proscribe and prohibit the peacefully expression of opinion contrary to that of the sheriff.
William J. Brennan, Jr.: Before we get into that, Mr. Feder, are you making any argument based on this wording, “property of another” “on property of another?” Are you making an argument based on that?
Richard Yale Feder: I'm making on -- if --
William J. Brennan, Jr.: The vagueness or any other kind of --
Richard Yale Feder: I am making argument as to vagueness Mr. Justice Brennan not as to vague on its face but they as applied to these facts, the state court has indicated that property of another does includes state property and we are not raising that that is an improper state rule.
William J. Brennan, Jr.: Well then what's the vagueness argument?
Richard Yale Feder: That an individual who sees this sidewalk and grass, we have no way of knowing that that statute is covering this area.
William J. Brennan, Jr.: Because it's public property?
Richard Yale Feder: Because it's open to the public and because he was directed to go there by a public official.
William J. Brennan, Jr.: That served as like Cox?
Richard Yale Feder: I think it's even more compelling in Cox. In Cox, you have the individual say, “Stop! Go no further”. Well here, you have an individual saying, “No, go to a different location”. And they go to that location.
Speaker: Well, (Inaudible)
Richard Yale Feder: Yes. No --
Speaker: And you identified yourself with the sheriff.
Richard Yale Feder: He'd never said, Mr. Justice Harlan, “Get off in ten minutes” --
Speaker: Well, (Inaudible)
Richard Yale Feder: Well, he never gave a time there. He merely said, “You're supposed to leave or be arrested for trespass and if you resist arrest, we deployed police around, you'll be charged with resisting arrest. He then said he watched. And when he saw someone sit down, he took that as an indication that everybody was going to sit down and said, “You're under arrest!” This was a matter of possibly a minute. And there is testimony on this record from two of the petitioners; one of them said that he just bend down to get a sweater, to obey the sheriff. But at the time she dusted it off from the leaves of the grass, there was a hand on her shoulder (Voice overlap).
Potter Stewart: She is one of the 32?
Richard Yale Feder: Yes, sir. There was another who said she has turned to leave and saw these policemen staring at her; she was afraid being faced with the alternative the sheriff gave them of being charged with resisting arrest if she attempts to go by. So, she just do. Highway patrolmen and deputy sheriffs moved them right into the basement of the jail.
Earl Warren: Had your courts determined before this event that this statute, this trespass statute should be interpreted as including public property as well as private property?
Richard Yale Feder: No, Mr. Chief Justice, they did not.
Earl Warren: It was in this case that they determined that?
Richard Yale Feder: Yes, Mr. Chief Justice.
William J. Brennan, Jr.: Well, the Bouie doesn't later --
Richard Yale Feder: I'm sorry, Mr. Justice Brennan?
William J. Brennan, Jr.: Under Bouie doesn't that raised a question of vagueness?
Richard Yale Feder: I thought that it made, Mr. Justice Brennan.
William J. Brennan, Jr.: You filed and thought in anther then another?
Richard Yale Feder: Yes, sir, Mr. Justice Brennan. Another, meaning an individual or not all of us including myself since I do have an interest in public property. But I think I do for Tallahassee.
Earl Warren: And there's nothing to indicate that there were any prohibitions against the public generally being on this property where these people were?
Richard Yale Feder: Absolutely none, Mr. Chief Justice. The State admits in its brief and it's in the record. No such implied or expressed indication to anyone walking down that he wouldn't have the right to be in Nashville.
Potter Stewart: You understand the record on the top of page 46 to indicate the -- that this people came down there to be arrested or that they came down there to go into the jail. They wanted to go to jail on a period to be directed in the remarks to their leader, group leader that they have come to the jail the night before and promised that they could go to jail and they were refused. And they have come back this morning, this particular morning, to go to jail and now there was demanding to go to jail. They wanted to go to jail. And they started through the entrance of the jail and myself and several officers stepped in and in between and blocked them and at that time one of the ministers, Reverend Evans came up and talked to group leaders and asked them to move back. Now, do you understand that they are saying that they wanted to just walk into the jail or that they came down to be arrested and be put in jail?
Richard Yale Feder: In answer specific to your question, they came down to protest and to take arrest at that time. Part of what you read, Your Honor, was asked what occurred the night before of someone --
Potter Stewart: Now, what did you hear? What I read was what he heard that morning and part of what he heard were references on our spokesman of the crowd to the night before.
Richard Yale Feder: I -- I can only say that the testimony of his both superiors, the chief jailer and the sheriff, was in conflict of this because they say there was no attempt to enter the jail. There was no attempt to go into the jail. The only one who said they came close was the– chief jailer who said they came within one and a half feet and move back and (Voice Overlap).
Potter Stewart: Well, that was my question and this is ambiguous. It could mean either that they wanted this storm the jail, I think that's exactly an exaggeration, or that they came down and wanted to be arrested and be put in jail. And I wanted how you understood it or how --
Richard Yale Feder: I understood it as a desire to be arrested if they came to that as a protest to the state enforced segregation or state encouraged segregation in Tallahassee. And that suddenly, the testimony of the others that they never attempted to go in the jail, both the sheriff and the chief jailer, and moved quietly and quickly which seem to refute an indication that this particular witness may have thought otherwise.
Potter Stewart: Is reportingly heard, wasn't it?
Earl Warren: Is there anything in the record to show that anyone of these 32 who were convicted were the ones who said they want to be arrested?
Richard Yale Feder: No, Mr. Chief Justice, other that the testimony of the sheriff that the police closed in and somewhere in these 107 was the people who had been talking.
Earl Warren: Somebody said that.
Richard Yale Feder: And in all fairness, Mr. Chief Justice, the sheriff did testify to, I believe Mr. Justice Brennan read earlier of one of the petitions of Mr. Blue, who said something. Not the same thing but there was that testimony. I shall like to reserve a few minutes I have left in my time. Thank you.
Abe Fortas: This was a masculine person.
Richard Yale Feder: Yes, Mr. Justice Fortas.
Abe Fortas: This was a crowd of all speaking together, was it? And they say the words in separate crowds of the different individuals here.
Richard Yale Feder: No, this was the 32 trial.
Abe Fortas: Is there any objection made by that?
Richard Yale Feder: I don't believe so, Mr. Justice Fortas. I know there were flying lawyers up from Miami to handle the defense of this.
Abe Fortas: Now this statute does have some element of the intent as the --
Richard Yale Feder: It's “malicious” and “mischievous” intent.
Abe Fortas: And was any point raised about the necessity of proof of the intent as to each of the individuals?
Richard Yale Feder: The motion as I recall made at the end of the state's case, at the end of the entire case and on the appeal was always or rather didn't go to any of them rather than specifically each; that there was no proof of the malicious and mischievous intent as to any of them.
Abe Fortas: Is there a question here as to whether intent has to be particularized as to the individual defendants that may explain what I have in mind and for mind by saying but suppose there was this group 150?
Richard Yale Feder: Two hundred.
Abe Fortas: Two hundred? And let's suppose that some of them had the intention of breaking into the jail in the morning. Is there a question as to whether that intent could be attributed to the entire group without proof of knowledge or whether proof of knowledge would be necessary, whether proof of the -- that the intent was the intent of each one of the defendants?
Richard Yale Feder: As I understand with the law, they will have to establish knowledge on the part of the law. That's why they kept saying (Voice overlap) overheard --
Abe Fortas: All or each?
Richard Yale Feder: Or any.
Abe Fortas: Now, knowledge that there was – that some of the individuals had that intent and then having made that raised any question as to whether mere knowledge would result in -- would support attribution of the intent necessary to statutory violation to the others?
Richard Yale Feder: I have not made such point. Nowhere was it read in the law, Mr. Justice Fortas if that was your question.
Abe Fortas: Yes, it is.
Richard Yale Feder: It was not read in the law.
Abe Fortas: Thank you.
Richard Yale Feder: You may have five minutes to conclude your argument.
Abe Fortas: Thank you, Mr. Chief Justice.
Richard Yale Feder: Mr. Roth.
William D. Roth: Mr. Chief Justice, may it please the Court. In response to one of the question that was asked petitioner, the records thus show that there were some 11 people in jail, I believe, that time. The jailer testified that there were four white women that went there for contempt and two other women that went there for contempt and then five Negro girls who were in there for contempt. No, no, excuse me four of the -- four of the white women were in there for being drunk, for deed of the act charges. So -- so these were separate charges. So, the record shows that there were about 11 people in the jail of this town.
Earl Warren: How big is the jail is it, Mr. Roth?
William D. Roth: I've been by there many times, Your Honor, I couldn't tell you certainly how large is the jail. It's simply is. Well, there's a juvenile home at hand and part of that is used by the jail at sometimes. Now, this particular time, if the county fairgrounds, most of the persons that had been arrested during the demonstrations had been taken out to the county fair ground to a new facility that had been out there because of the over crowded condition of the jail. So, at this time, the jail was not anywhere near full capacity this time. One other point that really on the record doesn't show and not having taken part in the trial below, I can't tell. I don't know what happened to the other 70 people out of the 32 who were prosecuted and the 170 or 74 that weren't prosecuted. The record isn't entirely clear on that. Petitioner --
Earl Warren: Could you tell us, Mr. Roth about how large the public area is around that jail?
William D. Roth: Yes, Your Honor. There is a one-way driveway that comes out in one of the streets which is perpendicular to the jail and I believe it's a gravel driveway. It's a one-way driveway. I would say it is probably wide enough for two and a half cars or may be more than that. There's a little -- in southern terms a (Inaudible) overhang right in front right over the stairs. And Sheriff Joyce testified that this was used primarily for maintenance men and also for bringing in prisoners, even bringing in or taking prisoners out of the jail. Sheriff Joyce also testified that Monday I believe with specially specific calls often times they had juveniles in there that had to be taken to the juvenile court or to the other courts in town. But in an answer to another question, there is no grassy part of against jail. In other words, there is the driveway and then the grassy part and then the sidewalk that I'm talking about. Unfortunately, this exhibit was not put into the record.
Earl Warren: But how large it is the grassy part?
William D. Roth: Well, I couldn't give you the measurement. There's a slope there and then in another level I would say 10 or 15 feet higher there is another parking lot there which I believe they used for the county health people. And the grassy – it's all from here to one of the columns I suppose. If that was, I would say the grassy area isn't that one. Now, this is where possibly we have a little disagreement with petitioner. Sheriff Joyce testified that his men encircled just the people that were on the area of the driveway and not people there were in the sidewalk or on the sidewalks or on the streets. Now, it is true that two of the petitioners who testified claim that they couldn't leave as they wanted to leave. So -- so the time sequence was important. Now, Sheriff Joyce arrived on the scene and supposedly he was there about 10 minutes. There is testimony, I believe the reason when -- because we're taking that he was spending the time seeing if the jail was secured. Then Sheriff Joyce came out and noticed two student leaders and the crowd judge let this in. Sheriff Joyce did recognize these student leaders, leaning up against one of the supports of the overhang that is over the entrance to the jail area, to side of the jail and one of these petitioners White or Blue, I believe Blue is one of these petitioners and then Mr. White was not.
Earl Warren: White and Blue?
William D. Roth: White and Blue, yes, sir. The sheriff spoke to these people about five to ten minutes and imploring them to please leave and get off this area of the jail. The students would not leave. And then, there was this testimony of the deputy sheriff also that the -- some other people said that we came to be arrested. Now, unfortunately, the record does not show which people said that. And, also it's our contention in this regard that certainly one person passing by wouldn't be a trespasser.
Earl Warren: Very well, we'll recess now.
William D. Roth: Mr. Chief Justice, may it please the Court. As I mentioned before the recess, unfortunately, the diagram that was introduced and that was used by the various, by the deputy sheriff and the sheriff at the trial was not introduced in the evidence and it was not part of this record. However, on page 27 --
Hugo L. Black: Would you mind speaking just a little louder?
William D. Roth: Excuse me, sir. The diagram which was used as a part of the description of the property that the trespass occurred on is not in this record. On page 27 of this record, it does show the fact that there was a driveway and then there was a parking area and then the grassy part that I mentioned and then an upper parking area.
Hugo L. Black: Now, was this parking lot -- was this parking lot used by whom? Was it a public parking lot?
William D. Roth: If someone want to park there, presume that they could on the upper part, before going to the health department to save up something.
Hugo L. Black: (Inaudible)
William D. Roth: On the other side of the jail, yes, sir, there is a juvenile home.
Hugo L. Black: (Inaudible)
William D. Roth: And I believe -- and there's a health building on the other side of the -- of parking lot number 2 which is on the upper area. Now, she--
Hugo L. Black: That's all then the proper area of the public jail?
William D. Roth: Well, it's not like a quadrangle in that sense but certainly it's public – I walked to there before many times and I'm sure many other citizens have. And that they're been stopped. Now, what we can't hint here, the question was, that this became a trespass when these petitioners were told to leave. Now, Sheriff Joyce also testified that there were three other adult women there. And he asked his deputies to ask this people if they were part of the demonstration or what. I think there were three older Negro women and the sheriff, the deputy sheriff asked these people and these people left. There were other people left. Now, Sheriff Joyce's testimony is replete, that no one was arrested except the group that was in the driveway and possibly and the people that were all in that group. Now, there is conflicting testimony from the petitioners. Now, there were three petitioners had testified. One of the petitioners testified that she was unable to leave; that there wasn't enough time involved because the sheriff only gave them from one to four minutes to leave after talking to the two student leaders about leaving. The petitioners have tried to base this case squarely on point with the Cox case or the Cox cases and the Edwards case. We contend that there are many or several differences in these cases that are distinguishable. First of all, in the Cox cases it was shown that there was a definite permission given to the demonstrators. From the very outset of the demonstration in Cox, it was shown that the state officials were trying to hinder them. Some 2,000 students congregated in the Cox case and were attempting to march up to a courthouse which also housed a jail to protest the arrest of some of their member and also to protest the conditions in that town in Louisiana. Now, it was shown from the beginning of the case that the authorities of that city first of all arrested that Mr. Moore, he was the group leader. The authorities then arrested the bus drivers that were to drive these students some four to five miles to where the protest was to take place. Mr. Cox then took over the march and upon arriving, arriving in an area near the courthouse, was accosted by two officers. Mr. Cox told these two officers his purpose. He said, “The purpose of the demonstration is to protest the conditions here in this City of Louisiana. We would like to have a short meeting across the street from the courthouse which housed the jail. We would like to sing the pledge or the National Anthem, say the Pledge of Allegiance and have a little speech.” The police officers then said, “We don't know, you can't do that.” Then one of the police officers contacted the chief of police and the chief of police met the demonstrators as they had gone another few blocks near the courthouse. And that time, the chief of police said, “Alright, you can have 15 minutes or you can have 20 minutes”. And after speaking for 15 to 20 minutes, then the police stepped in and broke up the demonstration with teargas and the next day arrested Mr. Cox for four violations, three of which he was convicted of the common law breach of the peace in Louisiana, obstructing a public sidewalk or thoroughfare and then picketing near the courthouse. Now, and there was a direct and tacit permission from the authorities of Baton Rouge or of the City in Louisiana. Now, in this case, the demonstrators started at Florida A&M which I supposed is about a mile from this area. There was one word said to these people a whole time. Sheriff Joyce was in a conference. Upon learning that the persons had approached the jailhouse, Sheriff Joyce came and spent five to ten minutes looking over the situation. Sheriff Joyce was satisfied that no one had tried to break in the jail. And I believe, Mr. Justice Fortas asked a question in that regard. It is not the states contention that any of the petitioners tried to break in the jail or tried to go up the stairs. As a matter of fact, the record shows that Deputy Sheriff Deckle, who was he jailer, met the petitioners as they came off of Godson Street into the one way gravel parking area and up to the porch or overhang of the jail. And when they came within two feet of this area, Sheriff Deckle asked them to stop and the students moved back. Now, petitioners contend that this was the permission given by the deputy sheriff saying, “You folks please move back so we can run this jail.” That the deputy sheriff and then the sheriff later gave this people permission as was the case in the Edwards case and the Cox cases.
Abe Fortas: Could I ask you just one question. Supposed 200 school children, let's say high school children, and this happen to congregate there, part for many question of purpose reason or whatnot, same place, in our opinion, would that have been a trespass?
William D. Roth: And they've been asked --
Abe Fortas: And no -- no particular -- no permission, expressed permission, they just come by. Would that have been a trespass under your statute?
William D. Roth: There are in the cases defining that but I would say, yes, sir it would be.
Abe Fortas: You think they would have been subject to prosecution?
William D. Roth: Yes, sir. I think they would be.
Abe Fortas: Now, this was a public place?
William D. Roth: Yes, sir. It was.
Abe Fortas: And the public was invited that was part of the public property?
William D. Roth: It was public property yes, sir, in the sense that the inside of the jail is not for sale but if you have business to walk inside the jail, that's public property.
Abe Fortas: Now the 200 high school children congregated in a park, that would not be a trespass when it is a public park.
William D. Roth: That's right. I would think it would not be.
Abe Fortas: And suppose 200 children gathered on the driveway on mister. I don't mean the driveway, I mean the parking area near the jail, would that have been a trespass? You see what I'm getting at is what this, this is public property and the public presumably is invited for some purposes. Now, what is it here that converts us into a trespass in your view of the case in that two elements of trespass under that statute aren't correct? What is going on the property without permission and they have the same sort of specific intent?
William D. Roth: Where with the malicious and mischievous intent, yes, sir.
Abe Fortas: That's right. Now what is it that converts the public utilization of the fact that this is a public property? What is it that converts such utilization into a trespass in your opinion?
William D. Roth: Well, Your Honor in my opinion, the very nature of what these people said or what petitioner said when they came to this area, the very area that they only use for that entrance to the jail or for the entrance way there is to bring in prisoners, ingress and egress of prisoners and for maintenance -- maintenance men to come. I would say that if I drove my car there and park it. I never did. Well unless if I've driven my car there and park it they could possibly remove my car.
Abe Fortas: So they couldn't charge you with trespass.
William D. Roth: No, so they couldn't charge me with trespass. What I'm getting at is that when all these people had gotten this area and announced that they wanted to be arrested, at least some of the, although there is a problem in the record of which one of these petitioners if any or which one said that. That this converted this into a trespass when the sheriff told them --
Abe Fortas: I beg your pardon. That's right for me; I must invite you to be very specific. It would become a trespass when these people said that they were there for the purpose of protest.
William D. Roth: Your Honor, it would have been if they have said that but that is not in the record; that this was ever said. This, if I may, this was a distinction also in the Cox cases and the Edwards cases which petitioners were allowing. There were no placards. In fact, the only testimony of the three petitioners who testified was really subjectively what is in their minds. Then if they knew and they said -- and the sheriff knew this because all these people were jailed there.
Abe Fortas: But if you assume which you may not, but if you do assume that it wasn't for mere presence of these people at this particular place should constitute a trespass. But if there was something else that converted their presence into a trespass on your statute, I'm inviting you to tell us precisely what it was that converted this presence of these people into a violation of law under your trespass statute.
William D. Roth: Your Honor, I would have to speculate on what we don't have in the decisions on that particular statute --
William O. Douglas: Oh, I thought your point was that there was that the thing that triggered the trespass was a lawful order of the sheriff that they had to disperse.
William D. Roth: This -- yes, this is --
William O. Douglas: Now, what I want to ask you is, that might depend upon the location of this group was with reference to the jail property if they were on the remote outskirts that might be said to be without the beyond the implied authority of the sheriff as custodian or that was right up near the jail and one might say that was certainly within the proper authority of the custodian. But the record is silent as to where all these happen. Now, is this exhibit that you say was marked for identification but not introduced, does that still extend?
William D. Roth: I don't know -- I didn't mean to mislead the court. I don't know whether if for sure it was marked for identification. It was a blackboard that was used and the record would show that the deputy juror –
William O. Douglas: Blackboard demonstration?
William D. Roth: A blackboard demonstration. So, I'm afraid that it wasn't used as an exhibit. I believe that Mr. Simon, representing petitioners or defendants below, agreed to stipulate but I don't think it was ever introduced in the record.
Potter Stewart: Mr. Roth, may I ask you? Do I understand in standpoint are you saying that you do not claim that the entry here was initially unlawful that it became such only after certiorari if this continue to leave when the sheriff requested them to? Is that your position?
William D. Roth: Yes, Your Honor.
Potter Stewart: Well now, your statute says in other words, your construing trespass as I understand it, that's the word of your statute isn't it? As a refusal belief even though the original entry was blocked, they refused all to leave after being requested to go, is that right?
William D. Roth: Yes, sir. And the--
Potter Stewart: Had that statute even been so construed by your courts before?
William D. Roth: No, sir. It's never been construed either way. In fact, this statute has never been construed in this regard. This statute was passed in 1860 or 1870 something.
Potter Stewart: Well ordinarily, didn't trespass done contemplate in initial unlawful entry on the property of another?
William D. Roth: Your Honor, it would say to me that it could be either way that the initial entry could be lawful --
Byron R. White: Are you familiar with the Bouie decision?
William D. Roth: Yes, sir.
Potter Stewart: Well, I thought we dealt with the statute like this which I would call it in terms of -- as I read that opinion even when I wrote it. My recollection is that the statue there also said trespass. And then late in the day, the Supreme Court at South Carolina interpreted trespass to include, even though there was an initial lawful entry, a refusal to leave upon request to go and we said that in that context, that was too vague, this part of criminal statute. No eyes onto your statute.
William D. Roth: No, sir. I don't it is because the statute also puts the intent in their. Maybe I suppose -- maybe I'm speaking of the separate aspect.
Potter Stewart: Well, I can understand that but even so, if trespass means ordinarily, and I think you can -- you just told me you believed that the initial entry on this property was not unlawful; initially. It became unlawful only after they refused to go when the sheriff requested them to go, is that what you are telling me? Well then if the initial -- how are we to suppose trespass here except for the decision in this case under your state law includes the refusal to go after the initial offer?
William D. Roth: Your Honor, I don't have it my fingertips in the other Florida statute exactly on this. Now we have another trespass statute going in state land and taking Cox but I don't know that would the --
Potter Stewart: The prosecution wasn't under that?
William D. Roth: No, sir. You're right. No, sir, it was not.
Potter Stewart: Well, I'm just wondering here. Don't you think our Bouie decision has real relevance to the decision of this case?
William D. Roth: Your Honor, I'm unsure.
Earl Warren: What was the punishment that was inflicted?
William D. Roth: The -- its a miss to me. I think it's up to two months or one $100.00. Now, I think in this case it was either $25.00 or $50.00, the punishment that was inflicted.
Hugo L. Black: All of them were fined?
William D. Roth: Yes, I think he was fined it could be no more than $100.00.
Hugo L. Black: No jail?
William D. Roth: Sir?
Hugo L. Black: No jail?
William D. Roth: I don't think there was a jail, sir.
Earl Warren: Mr. Roth, as I understand it that this block or square where these people were was a public block or square on which were buildings of several departments of the county government, there was a jail and I thought you told us also that there was a probation department and I thought also you said there was a health department and some parking facilities for those who were doing business with those agencies of the government and then some general parking space around there and lawn. That -- is that all about it?
William D. Roth: Well, with this exception, Your Honor, that they want the public health building was on the four side of the jailhouse.
Earl Warren: Yes.
William D. Roth: The -- the lower parking area which was adjacent to the gravel area which petitioners were arrested on was actually -- was considered the parking lot of the jail. I would say Sheriff Joyce testified that he came in and parked in the first two areas in the wide strip. One way strip it goes by the one of the side of the jail. Then there was a grassy strip. Then there was the upper parking area and the other building that I mentioned was on the other side of that. So, it wasn't contiguous in the sense that all the buildings were just lined up in the sense semi-circle (Voice Overlap).
Earl Warren: That was there any -- was there any division of responsibility for these properties as much as you say well this much is for the – under the jurisdiction of the probation department, this is under the health department, this is under the sheriff?
William D. Roth: Your Honor, as the record is silent as to any other division as to the upper parking lot. Now Sheriff Joyce did testify that this area of the lower parking area and the entrance way and there was under his custody. But as far as stipulation on the record of lot numbers or which was which know this, the record is silent on this. And the -- another distinction that was made of the petitioner attempts to make in the Cox cases or rather to show that they are similar, is the fact that there was a jail involved here. There was a jail involved in the Cox case with a jail inside of the courthouse. But again, we would like to point out that specific permission was given in both the Cox cases and the Edwards case which petitioner said is in direct conflict. And that in this case, there was no permission given. The deputy sheriff walked out of the -- down the entrance way and saw these people to see me. He said, “Please move back two feet.” He immediately called the sheriff. The sheriff --
Abe Fortas: And did they move back two feet?
William D. Roth: Yes, it's on the record. And, petitioner says that this was analogous to the situation in Cox in which the Mayor said, “You have 15 minutes” but let's break it about to that. Although in Cox, the reason that the authority grabbed it up is because they considered certain aspect of Mr. Cox's colloquy there or his speech there as in citing a riot or something like that when he said, “rolled out sit in these various areas.” But in the present case, there is no showing that anything will see it. He just said that Sheriff Joyce surely knew why these people were here.
Abe Fortas: Does that mean or worse for the petitioners in your view of the case here. That is same Cox was -- what will I say, “Carrying on” these orders in approaching this order.
William D. Roth: Well --
Abe Fortas: What was it, I take it?
William D. Roth: From -- from the stand, I think it makes it worse for the petitioners in this case because in the Cox case, it was stated time and time again, and with majority opinion that these people, that the authorities knew what it was and given them permission to do it for a certain length of time that the statute was vague because they have the permission to step in anytime they would revoke it. In this permission, it just showed that Sheriff Joyce, upon coming on the jail, suddenly confronted, its custodian of the jail was suddenly confronted with having about 200 to 300 individuals right here in the driveway area on the side of the jail and this other area that he asked these people to leave, that the people hadn't say a word with placard or what were doing or anything and the people -- some of the people said, “We came to be arrested.” Upon telling the group itself to leave, some more of the group sat down and didn't leave. Now, the only question in this regard about the true identity of these people and it was raised by petitioner is, that since each one of these petitioners weren't specifically and individually pointed out that they should void the whole way. I have three of those aspects in my brief. Sheriff Joyce did give sworn assurances that the only arrested were the people right in the group there; that no one was arrested in the upper parking lot. Again, this goes to your question of various jurisdictions, Your Honor, of the various dealings which is unfortunately not on the record, that no one was arrested on the public sidewalk of the jail, that no one was arrested on the street. And it was our contention that this was – that the sheriff did this as custodian and that he had the legal right to do this and if no matter which group they did it, now or later. One other point that petitioners had raised is the fact of abatement, which is also true to both of our briefs. Petitioners says that under the period of abatement, the passages in 1964 Civil Rights Act, under the case of Heart of Atlanta Motel and Katzenbach versus McClung that this should be applicable in this case which say that it isn't because this jail was not a place for public accommodation. Now, petitioners responded that by saying, “Well, that was all part and parcel of the same thing”. Now, we contend that this is just not so that if the custodian of that area, of the jail, is powerless to regulate that particular area no matter who comes there and blocking this area that it would make the running of the jail or any other facility for that matter very hard. Now, the State of Florida has recognized, as a footnote and being honest to the Court, the State of Florida has recognized the difficulty of proving who was there in an area like this. And in that Fort Lauderdale the prosecutor was in touch of the office not long ago. And in pop in the beach when there was some trouble down there and all of the petitioners were -- where some petitioners were let go because they couldn't -- they didn't have specific identification. Now, there's no report of cases where it's done. And the procedure now is, is the use of moving pictures a possible and other type of pictures as was done by the newspaper people or the television people in the Cox case. Well, unfortunately, we don't have this in the present case. Petitioner also says that there is a lack of relevant evidence in this case. We contend there's a conflict in the evidence as to what Sheriff Joyce said and as to what the three petitioners had testified said but certainly, there is no lack of relevant evidence in this case. It was shown that the petitioners went to the spot. It was shown that the petitioners were asked to leave. It was shown that some of the petitioners or some of the people or the 250 that were there did leave. It was later shown that the petitioners made no showing of why they were there or what they were protesting or anything of this nature. And that the petitioners even or some of them anyway, even evidence had attempted to be arrested. Now, the state would cheerfully admit that just because someone wants to be arrested, doesn't give the place the right to arrest there. Now just because I walked at the place on the streets and “Hey, arrest me here, I'm protesting”. Or something this, if I haven't broken any law, this is no reason. But I only mentioned this to show as a part of the intent in the statute when it says with a mischievous and malicious intent and would contend that that is what this goes to. The other point, which is the lack of relevant evidence, I think that it was treated the point before. And also, the petitioners have said that this was the use of “a petty criminal statute” to prohibit or to hinder people in exercising their rights. One of these statutes was not passed during any -- this statue has been on the books for a long time. In fact, Florida has not passed, to my knowledge except for the schools which of course were unconstitutional has not passed any laws about or any additional laws in the last 10 years, making it unlawful to stand in a public building after being ordered to leave or making unlawful to go in sidewalks or anything else. So certainly, by the very fact that this statute is an old statute, and I'm not contending this because it's old it's good but it hasn't been tested in that regard. And certainly, this was not attempt on the part of Florida to use a petty criminal statute, just to prosecute this people. Now, if of course the statute is no good, maybe we should have passed some of the statute. But we contend this was under the circumstance, the only statute that could have been used under our statutory law and may be this is a failure of the legislature not to pass that statute in this regard. But the State of Florida has been fairly fortunate in this area and is not deemed it necessary to pass to allow the statutes which by the way, have most been thrown anyway by this Court. So, it would really have been unused just to pass it and we're proud we didn't have it.
Earl Warren: Mr. Roth, may I ask you just one more question. Your statute provides that it is unlawful to trespass upon the property of another committed with a malicious and mischievous intent. Now, could you just detail in a moment what evidence there was to show a malicious and mischievous intent?
William D. Roth: To prove that isn't the conduct, yes, sir. Well, by the -- I think that both words can be or this can be shown that -- the part of malicious and mischievous can be shown in the fact that petitioner, upon arriving in this spot, showed that they wanted to be arrested.
Earl Warren: I thought you said that can be --
William D. Roth: Well, I said -- I said that in --
Earl Warren: -- any difference unless you --
William D. Roth: Well that is in --
Earl Warren: -- it was specific violation that that would amount to anything?
William D. Roth: I said that that's specifically, I didn't think would allow someone be arrested just because I showed that this is part and partial. First of all that. Second of all, the collectively it was -- that was had between the sheriff and the two student leaders, asking them to leave and the student leaders just responding by sitting down on the ground, most of them. And thirdly, by the sheriff then asking everyone to please leave that this was a trespass and if you don't leave, you're going to be arrested for it. Now, we certainly contend that the State of Florida has a power to do this. This -- this Court may say the statute is not good and you will have to pass one but certainly, we have this power. The problem just may be that this is not the statute to do it but certainly, we contend that Florida has this power to do this or a county has a power to do this in the orderly paneling of the day to day facilities of the jail. So we contend, Your Honor, that this combination of those three things. What the sheriff said to the petitioners talking to them, the evidence contend from some other of the petitioners or from the group there saying that, “We came to be arrested”, and “Why didn't they arrest us last night” or something to that effect and then the fact that petitioners made no effort to leave but in fact, when asked to leave, sat down.
Earl Warren: May I ask you that there is anything in the evidence to show that anyone of these petitioners in this case were the ones who said, “We came to get arrested.”
William D. Roth: Your Honor, I don't think there is. I don't think that Mr. White said or Mr. Blue said that.
Earl Warren: Is there anything in the record to show that they sat down, these two or anyone from this group?
William D. Roth: Well, the record showed, I think that one of the men, Mr. Blue was sitting down at the time that he was talking to. But as far as specifically, these 32 petitioners, no there is none.
Earl Warren: Yes, (Inaudible). Now, would you tell me this, you arrested originally a 106 or 105 whatever the number was, they were all incarcerated.
William D. Roth: Yes.
Earl Warren: They are all taken in a jail. Now, by what process that they call out of 32 of these people and say, “These we will prosecute; the other 70 we will let go.”
William D. Roth: Your Honor, the record is silent as to that and I didn't take any part in the prosecution and I don't know --
Earl Warren: Is there anything in the record that Mr. Roth that would show that these people did anymore than the other 70 whom they turned loose.
William D. Roth: No, sir. The only thing in that regard is one of the deputy sheriffs said that through pictures and fingerprints, these 32 were identified. This I -- it is unclear to me exactly what is that mean but that's in the record.
Earl Warren: Very well.
William D. Roth: Thank you, Mr. Chief Justice.
Earl Warren: Mr. Feder, you have few moments or five minutes, I think.
Richard Yale Feder: Mr. Chief Justice, may it please the Court --
Potter Stewart: Mr. Feder, before you begin.
Richard Yale Feder: Yes.
Potter Stewart: What were the sentences imposed in this case? I can't find in the record or anywhere.
Richard Yale Feder: It doesn't appear on the record. Other than that, there was a sentence.
Potter Stewart: Do you have any -- you know? Is he your client?
Richard Yale Feder: I do not know in my own personal knowledge. I was not at the original criminal proceedings. I'm given the case to --
Hugo L. Black: Can you get some for us?
Richard Yale Feder: I presume I could Justice Black. All I know, I believe it's the opening statement of the second court says, “This is an appeal from the sentence.”
Potter Stewart: Yes, I saw that but I couldn't find any --
Richard Yale Feder: That's all there is in the record, Mr. Justice Stewart. And I don't have any personal knowledge to enlighten the Court. I was questioning counsel's comment about the difference between Cox and Edwards and the case at bar in the absence of permission. In the first place as I recall in Edwards, there was no specific permission given in the Edwards case. And in the case at bar, he admits that at the time petitioners came on the property, they needed no permission.
William J. Brennan, Jr.: Except that I know, this is not the point you are addressing, Mr. Feder. Looking at your brief again, I don't see or is there any place where you raised Bouie vagueness point on the statute.
Richard Yale Feder: No, I did not, Justice Brennan. I believe, as I --
William J. Brennan, Jr.: You did not?
Richard Yale Feder: -- as I answered you previously, we did not raise the Bouie case.
William J. Brennan, Jr.: And you don't raise it now?
Richard Yale Feder: We raised it only as used in the Garner case and I believe in the Peterson, the Lombard and the Shuttlesworth cases.
William J. Brennan, Jr.: Well, Bouie followed all of them.
Richard Yale Feder: We did not raise that, Your Honor. If the petitioners have the right to be where they were, and this was not a trespass as the state admits then no permission was necessary --
Hugo L. Black: You mean at that time they were arrested?
Richard Yale Feder: I'm talking now of their original walking upon the grounds. The State has said that that was not a trespass. As I understand, the State --
William J. Brennan, Jr.: That's my point, you see. If this statute breach is only a trespass in the sense that it has been unlawful entry in the first Instance, then whatever conduct they might have been guilty of that's all the statute mean. They could have been guilty of violating the statute, as I understand, the states possession. But you are not urging that for.
Richard Yale Feder: I believe I am, Mr. Justice Brennan.
William J. Brennan, Jr.: Well, not in the context, the vagueness of the -- they had no notice that the statute would embrace. They refused all to leave after a lawful entry.
Richard Yale Feder: Yes, I am raising that, Mr. Justice Brennan. I believe we've raised that in our brief in the --
William J. Brennan, Jr.: I wish -- I don't want to take up your time but I can't find it in the brief. You don't cite Bouie.
Richard Yale Feder: No, we raised it, as I say after Edwards and Cox but did not cite the Bouie case, Mr. Justice Brennan.
Speaker: Before you can state (Inaudible)?
Richard Yale Feder: That's correct, Mr. Justice. Our point is, that the use of the statute which on its face to anyone reading it in an area which is open to the public, there be no way of their knowing in advance that what they were doing was improper until the sheriff or anyone else should pick a moment to say, “This is trespass. You must leave or be arrested.”
Hugo L. Black: Well, that's the whole Bouie file.
Richard Yale Feder: I'm sorry, I apologize --
Hugo L. Black: I have not understood the state brief, It would not be a trespass by 200 people to go open in the private driveway of the jail up next to the door but they have to tell them to get back. I have not understood them to agree that that would not be a trespass.
Richard Yale Feder: Mr. Justice Black, I may have --
Hugo L. Black: You made it but I would still be bothered by that.
Richard Yale Feder: I may have misunderstood, counsel, but I forthwith stated since as a matter of fact, these 200 people did walk up to within two feet of the jail. And I believe the State stated at that point there was no trespass.
Potter Stewart: I thought that's what Mr. Roth answered me when I asked that very question.
Richard Yale Feder: I agree, Mr. Stewart so I thought it was --
Byron R. White: Would you agree that there would have been, let's say all 200 that had gotten the jail?
Richard Yale Feder: I believe that could have been.
Byron R. White: Well, I do.
Richard Yale Feder: I think once you go into jail if there's a disturbance. I think a sheriff would have a right.
Byron R. White: It did not but they just went in, they did put all 200 of them.
Richard Yale Feder: Standing alone? No, I believe that private citizen has a right to walk into a public building.
Byron R. White: 200 have the right to go in together?
Richard Yale Feder: Depend on the size of the jail?
Byron R. White: Well, how about this one?
Richard Yale Feder: I've never seen this one and I hope I don't, but the only other comment, I noticed my time, is just to say that this statute, as counsel says, was on the books since 1880 has never been used before. It has never used since other than prevent these 32 Florida A&M students from protesting the segregated facilities of the county jail and the enforcement of private discrimination in a movie theater in Tallahassee. Thank you.
Potter Stewart: Mr. Feder, you are going get and let us have the punishments imposed in this case?
Richard Yale Feder: I agree, Mr. Justice Stewart.
Potter Stewart: Are you going to supply --
Richard Yale Feder: Yes, I would.
Potter Stewart: -- the information as to punishment?
Richard Yale Feder: Yes, I will, Mr. Justice Stewart. I will.