Griffin v. Maryland – Oral Reargument – October 14, 1963

Media for Griffin v. Maryland

Audio Transcription for Oral Argument – November 05, 1962 in Griffin v. Maryland

Audio Transcription for Oral Reargument – October 14, 1963 in Griffin v. Maryland

Earl Warren:

William L. Griffin et al., Petitioners, versus Maryland.

Mr. Rauh, you may proceed with your argument.

Joseph L. Rauh, Jr.:

May it please the Court.

This case is here on re-argument.

Though the legal issues are of moment and importance, the facts are simple and largely undisputed.

On January 30, 1960, a number of persons, Negro and White, including the five petitioners here, gathered outside of Glen Echo Amusement Park, the major amusement park serving the District of Columbia.

It is in Maryland.

A picket line protesting the assumed position of the park of segregation was setup, and shortly thereafter, about 8:15 in the evening, the five petitioners, young Negroes, went into the park.

There was no obstruction as there are no tickets or other entry required for gaining admission to the park.

Arthur J. Goldberg:

And they have previously parked the picket line?

Joseph L. Rauh, Jr.:

Yes, Your Honor.

They went on to the carousel and took their places on the horses and other animals there.

Potter Stewart:

They needed tickets for that, didn’t they?

Joseph L. Rauh, Jr.:

Yes, Your Honor and they —

Potter Stewart:

They had them.

Joseph L. Rauh, Jr.:

— had tickets purchased by a White friend and it is not contested that the tickets were freely transferable.

So, on the carousel, the five Negroes had the tickets that were required and waited to ride but they didn’t ride.

The carousel didn’t move and a man named Francis J. Collins walked up to them.

He had on the uniform of the National Detective Agency, a private detective agency, and he was employed by the park through a contract with the National Detective Agency.

He had on the badge of Deputy Sheriff of the State of Maryland, and he said to these five petitioners “We do not permit Negroes on the property here or on the rides.

I will give you five minutes to leave the property.”

In an orderly fashion, there is no question about this, they sat quietly on the carousel.

Approximately five minutes thereafter, he arrested them.

He took them to the Bethesda police station and, there, he swore out a warrant.

He filed an application for a warrant and the Justice of the Peace issued the warrant and charged them under 27 Maryland Code, Section 577, for wanton trespass.

Wasn’t there an intervening episode? Before he arrested them, he consulted with the park owners —

Joseph L. Rauh, Jr.:

Yes, Your Honor.

Hugo L. Black:

— on the warrant of arrest?

Joseph L. Rauh, Jr.:

Yes, Your Honor, that’s correct.

Now, at — and I was just exactly at that point.

Joseph L. Rauh, Jr.:

At the trial, there was testimony of all three, of Lieutenant Collins that he had instructions from the first to arrest if Negroes came on for trespass, that he had instructions, that those instructions came from the owner, Mr. Baker, that he also had the same instructions from the manager, but it is correct that he went to the manager and said “these five Negroes are on there.

What shall I do?”

And, he said “arrest them.”

That is correct, but all three – Collins, Baker, and Warren Hoff, the manager, testified it was the policy to keep them off solely because they were Negroes and the arrest was to be made by Lieutenant Collins solely where it — because they were Negroes and Lieutenant Collins made the arrest solely because —

Potter Stewart:

You call him Lieutenant Collins.

What was he a lieutenant in?

Joseph L. Rauh, Jr.:

He was — that was the title assigned to him as head of the police force of the Glen Echo Park.

I think it’s someone like a Kentucky Colonel, sir.

Earl Warren:

Mr. Rauh, do you consider any significance that when he swore to the complaint, he swore to it as a deputy sheriff or —

Joseph L. Rauh, Jr.:

I think it evidences the whole picture.

He wore the badge of the deputy sheriff.

He went to the police station and made an application as a deputy sheriff.

And then the warrant itself says that it was sworn out by the deputy sheriff.

In other words, there was a continuous — as I will come to in my argument, there is a continuous confluence of private and public authority in this case.

The —

Tom C. Clark:

You concede though that he was acting out instructions of the management.

Joseph L. Rauh, Jr.:

Yes, Your Honor.

Now, at the trial, as I say, the — it was very simple and the federal points were all raised.

There’s no question about that.

The five young Negroes were convicted and fined of trespass.

The Court of Appeals of Maryland upheld the convictions on the ground that the discrimination by the state, if such there was, was one step removed, that the action here was one step removed from state enforcement of a policy of segregation.

Now, if Your Honors please, we have two separate arguments which we make in support of our position that these convictions must be reversed under the Fourteenth Amendment.

First, there was active state support of private discrimination forbidden by this Court.

And, second, and the other half, the first argument assumes a private right to discriminate but we say, under the first argument, private right to discriminate, though there maybe, the state may not give its active support to that private right to discriminate.

And, secondly —

Arthur J. Goldberg:

Mr. Rauh, though there maybe or though there is.

Joseph L. Rauh, Jr.:

My secondly was going to answer that, if Your Honor please.

And, secondly, though there is no private right to discriminate, in other words, we contend, Your Honor, so that obviously my first answer is “though there maybe” would have been a better way to say the first point.

We say that though there may be a private right to discriminate, there is no right in the state to give active support to that discrimination.

But, second, we challenge under the rule of law in this country, under the Fourteenth Amendment, that a state can create or recognize a private right of discrimination.

Joseph L. Rauh, Jr.:

It will not be necessary, in my judgment, for the Court to reach the second point, because I believe and submit that the first point, which I’d like to develop now, is so complete and total and clear under the precedents of this Court.

Nevertheless —

Potter Stewart:

Just so I can get your second point.

When you talk about discrimination, are you limiting it to racial discrimination?

Joseph L. Rauh, Jr.:

Yes, Your Honor.

I should have made that clear.

I —

Potter Stewart:

You’re not talking about a person’s right to be discriminating.

Joseph L. Rauh, Jr.:

No, I am saying that, under the Fourteenth Amendment, no state may create or recognize, this is the second point we — I — as I say again I want to be clear that I don’t think this Court will ever reach this point —

Potter Stewart:

I understand.

Joseph L. Rauh, Jr.:

— in this case, but that I believe, and I think it illuminates the first point and shows its simplicity that no state may create or recognize a private right of racial discrimination.

Potter Stewart:

Racial discrimination.

William J. Brennan, Jr.:

Mr. Rauh, are you going to suggest any view of the Solicitor General’s approach to this thing?

Joseph L. Rauh, Jr.:

If —

William J. Brennan, Jr.:

Are you going to suggest any view on your part of the Solicitor General’s approach to this case?

Joseph L. Rauh, Jr.:

It seems to me that the Solicitor General has argued the vagueness point in great depth.

I think it would be correct except for one thing.

It was not raised by us below and I feel the most I could do is refer to it as background in a footnote, which we do on page 27 of our brief, that I do, in all canter, have to report to the Court this matter was not raised below.

Arthur J. Goldberg:

The part of your argument, part of your brief, the second page of your argument in which it overrules the rights maybe.

Joseph L. Rauh, Jr.:

I don’t believe that will be necessary, if Your Honor please, but if that — if the Court determined that were necessary, I think the Court made an assumption in the civil rights cases, which I’ll come to, which require — which do not require its overruling but, as I say, I don’t think we’re going to get there because I think I can persuade Your Honors, if I maybe so immodest, Mr. Justice that the first point is clear and, as I might say, rather an a fortiori case under the previous decision.

Now, look at this situation —

Arthur J. Goldberg:

Hold on.

Before you do that, on either point that were mentioned, you refer both on reporting to them.

Are we, therefore, to distinguish a fortiori in the Thirteenth Amendment of the indictment?

Joseph L. Rauh, Jr.:

I could have, Your Honor, but it seemed to me that the same considerations that the Fifteenth Amendment would bring are fully encompassed.

The badge of humiliation, discrimination in a public accommodation is a badge of humiliation and inferiority.

Clearly, as such, it’s a leftover part of slavery and clearly, as such, I could have raised it under the Thirteenth Amendment.

I think that badge of inferiority and humiliation, which this discrimination refers, is also invalidated by the Fourteenth Amendment.

Now, if Your Honors please, this is a simple case under the decided precedents of this Court.

No more, we say, may the State of Maryland bring a judicial trespass action against one who seeks service at a public accommodation than the State of Missouri in Shelley and Kraemer could bring a judicial ejectment action to remove the Negro from the land.

Joseph L. Rauh, Jr.:

We suggest that this is a far stronger case than Shelley against Kraemer, for here, the criminal law of the state is being brought down upon a man seeking service and, here, it is not as in Shelley and Kraemer where the court simply were open to the man.

Furthermore, the right in Shelley and Kraemer was a higher right than the right here.

The right in Shelley and Kraemer, which this Court overruled, which this Court refused to honor, was the right — the contract right of a man to choose his neighbors.

And, I most respectfully suggest that the overwriting of that contractual property right to choose one’s neighbor in Shelley and Kraemer makes it easy and simple and less far-out-too-over to say that an owner of a store may not refuse a sandwich to a person.

I suggest to Your Honors that there is a great deal or higher right in the covenant that was overruled and invalidated in Shelley and Kraemer that could not be enforced in Shelley and Kraemer than the right we have here.

Potter Stewart:

Mr. Rauh, isn’t it accurate to say that what was vindicated in Shelley against Kraemer was the right of the owner of property to alienate it, deal with it as he wished in defiance of a racially restrictive covenant and what is involved here on the part of your opponent, as it is asserted, is the right of the owner of property to deal with it if he wishes?

Joseph L. Rauh, Jr.:

I think that is a correct statement, Your Honor, but it just needs to go one step further and look at the right of the man who had a contract right not to have a Negro next to him.

That contract right not to have the neighbor was said by this Court to be unenforceable, and I certainly would suggest to Your Honor that it is a greater right to have your neighbors those you want and to have your customers those you want, because they’re saying to the public “thousands of you people come to Glen Echo and ri– and take part in our rides but no Negroes.”

And, I would respectfully suggest that Mr. Baker, the owner who makes this decision, to him, I can’t believe who rides on his merry-go-round to be as high a right as to Mr. Baker’s neighbors.

And as Your Honor said you could not enforce Mr. Baker’s property right to his neighbors and I suggest you — that the same point, and only more so, as you cannot enforce a property right, if there is one because this is my first half of the argument and I’m assuming that you’re right, if there is one, it cannot be enforced here.

Potter Stewart:

Who were the — who were the parties in Shelley against Kraemer?

Who was Shelley and who were — who was Kraemer?

Joseph L. Rauh, Jr.:

Well, the ejector was the neighbor who had a contractual covenant with the man who sold the property to the Negro that the man wouldn’t sell it.

He had a perfectly good covenant wer — writing with the land, a perfectly good contract property interest, which this Court said may not be enforced because the Fourteenth Amendment won’t allow the courts to do this and, by the same token, the Fourteenth Amendment will no more allow the criminal trespass action than a criminal ejectment action.

Potter Stewart:

The — but the Negro buyer was not a party in Shelley against Kraemer, was he?

Joseph L. Rauh, Jr.:

Yes, he was the defendant.

He —

Potter Stewart:

Was the seller?

Joseph L. Rauh, Jr.:

He was the petitioner.

He was the buyer, the Negro buyer.

Potter Stewart:

And was the seller a party, the landowner?

Joseph L. Rauh, Jr.:

No, the cov– the ejectment action is brought by the neighbor who wants to get rid of the Negroes on the land.

Potter Stewart:

Against the buyer.

Joseph L. Rauh, Jr.:

Now, that would be clear just from the conviction.

But, here, you have more.

Here, you have, from the minute this thing starts to the end, a– just a confluence of public and private authority.

This sheriff was the day-to-day discriminator.

The sheriff was on the land.

He had the job of controlling the discrimination.

There never would have been a crime if it wasn’t for this sheriff.

Joseph L. Rauh, Jr.:

This sheriff said “get off the land.”

It was only a crime after the sheriff had told them to get off the land.

It wasn’t a crime before.

There is no suggestion it was a crime walking on.

The suggestion and the ruling of the Court of Appeals of Maryland is it’s a crime not to get off and, when they don’t– and who made that crime?

The orders came from a sheriff of the State of Maryland.

Then, he goes, as I was questioned on this, then he goes to the police station.

He applies as a police officer, then, the warrant comes on application of a police officer.

Arthur J. Goldberg:

But it was amended.

The warrant was subsequently amended.

Joseph L. Rauh, Jr.:

Oh, it was amended on the question of whether he was the agent of the owner.

They didn’t have a crime the way they did it first because they said that he was sworn out by the deputy sheriff and then they had to say he was sworn out by the agent.

Arthur J. Goldberg:

That conforms to the language in effect.

Joseph L. Rauh, Jr.:

Nothing could show, if Your Honor please, the mixture.

They had mixture of public and private authority better than they had to fix up their warrant to show he was the– that the sheriff was an agent of the private authority here to do it.

Arthur J. Goldberg:

Well, that’s what he was.

Joseph L. Rauh, Jr.:

He were — if I may, if you’ll excuse the expression, I think M– Lieutenant Collins was a double agent.

He was an agent of the state as a sheriff and he was an agent of the private person to handle their discrimination.

It just seems to me that this case is clear on Shelley but it’s clear on two other cases of this Court.

It’s clear on Burton.

I don’t think the State of Maryland can lease its badge anymore than the State of Delaware could lease its property for discriminatory purposes.

William J. Brennan, Jr.:

Do you have a right under Maryland law that you have to carry the badge, the sheriff badge, to make this arrest.

Joseph L. Rauh, Jr.:

The Court of Appeals of Maryland said so and —

Potter Stewart:

But you have to have that into Maryland.

Joseph L. Rauh, Jr.:

I would think so, Your Honor.

But it’s not only Burton.

It’s Lombard, even as late as this very year.

Lombard, the police said “we promise to deal with the sit-iners.”

Well, here, there wasn’t even a promise.

There was actual police dealing with the sit-iners.

Joseph L. Rauh, Jr.:

So, just to conclude this point, it does seem to me that it’s, as Justice Douglas put it that you couldn’t license a man to serve Whites only.

Well, that’s what the State of Maryland, in effect, is doing.

They’re licensing and then they’re making it possible through convictions, through sheriffs, to serve Whites only.

The obvious fact that you couldn’t license a man to serve Whites only is really applicable here when, in fact, you license the man to serve the public and then you make it possible for him to serve Whites only.

Well, I– as I say, I don’t think we’d come to the second point but I do think it illuminates the problem and it is because of its illumination that I would so much like to dwell on it before–

Arthur J. Goldberg:

Now, before you leave assuming Shelley v. Kraemer is fairly different when, in Shelley v. Kraemer, the man who owned the property was (Inaudible) and, therefore, he has the right to make the decision to be engaged in a business deal of this kind, not enforcing the covenant which has been given to them?

They’re very different.

Joseph L. Rauh, Jr.:

There’s —

Arthur J. Goldberg:

It doesn’t (Inaudible) automatically goes and decide this case.

Joseph L. Rauh, Jr.:

There is a difference, Your Honor, but I respectfully suggest the difference is in my favor, because, as you put it, you overlook or — I don’t mean you overlooked, and in that sense, I meant that it excludes the important fact in Shelley and Kraemer of the property right, which has always been enforced.

There’s no question that if this property right were in any other fashion, it would be enforced.

I don’t see what the willing buyer and the willing seller make any difference when you got an unwilling man with a property right that would always be enforced in our country that’s never been challenged.

It can only be challenged under the Fourteenth Amendment and you overruled that property right not to have your neighbor.

And I respectfully suggest that it’s a lot less to override the property right not to have customers than to override the property right not to have neighbors.

Now, if you want to say to me it’s different, I would concede it was different.

Only, I would only contest that it’s different in my favor, and I would respectfully suggest that there has been a lot of talk in the articles and so forth that there’s something– that there is some question about Shelley and Kraemer.

Well, as far as I know, and I think I have read all the relevant decisions of this Court, every time Shelley and Kraemer has been mentioned, it has been mentioned with a probation in the decisions of this Court, and there is no way to reach a result different than a reversal here without, in fact, questioning the result in Shelley and Kraemer.

Now, if Your Honors please, I would like to come to the second point. I do most seriously challenge that there is any private right to discriminate at a place of public accommodation.

Arthur J. Goldberg:

And now you talk about this issue before you said there is no private right to discriminate at a place of public accommodation.

Joseph L. Rauh, Jr.:

If Your Honor please, and I was trying, without wasting time, to exclude the home problem, which seems to me, to raise contrary constitutional and policy questions and I —

Arthur J. Goldberg:

(Inaudible) will you reach it though?

Joseph L. Rauh, Jr.:

Yes, I would exclude any place where the — there was no invitation open to the public.

If, however, I invited all republicans into my home, I don’t think — I think I’d be waving my rights of privacy and so that —

Arthur J. Goldberg:

Are you (Inaudible)?

Joseph L. Rauh, Jr.:

I don’t believe so, Your Honor.

It seems to me that– but I don’t– luckily for me, I’m– I was– the formula I gave covered the case involved which is that I challenge that there is any private right of racial discrimination in a place of public accommodation, and for this reason– and, it seems to me, it’s quite–

Hugo L. Black:

What constitutional provision do you rest on to draw that distinction?

Joseph L. Rauh, Jr.:

The Fourteenth Amendment is con–

Hugo L. Black:

What part of it?

Joseph L. Rauh, Jr.:

The Equal Protection Clause.

Joseph L. Rauh, Jr.:

I respectfully suggest that the Equal Protection Clause prevents a state from creating or recognizing a private right to discriminate.

Now, law doesn’t come from the heavens or the–

Hugo L. Black:

How about the church?

What about a church?

Joseph L. Rauh, Jr.:

I– again, I say that these borderline case — but I don’t believe the church has that right.

I don’t believe the church has that right.

I think it can have only Catholics.

Hugo L. Black:

Does the constitution forbid the church–

Joseph L. Rauh, Jr.:

I think–

Hugo L. Black:

— to choose who will belong to it and who it won’t?

Joseph L. Rauh, Jr.:

On racial grounds, Your Honor.

This Court has made one thing clear, it seems to me, beyond peradventure of doubt and that racial discrim– racial distinctions are the one type of distinction that you will not honor under any certainty, that race is the one–

Hugo L. Black:

If by a state.

Joseph L. Rauh, Jr.:

By a state, and I shall respect–

Hugo L. Black:

You extend it, however, to pri– to property owned by people, either an association or an individual.

Joseph L. Rauh, Jr.:

Yes, Your Honor.

On this ground, the law doesn’t come from the heavens or out of the earth.

The law is created by the state.

Hugo L. Black:

That’s the reason I asked you upon what specific constitutional provision–

Joseph L. Rauh, Jr.:

The Fourteenth–

Hugo L. Black:

— you rested for those distinctions.

Only, they did not come from the heavens but from the constitution.

Joseph L. Rauh, Jr.:

The Fourteenth Amendment, but the law of the state cannot, under the Fourteenth Amendment, create or recognize a right of discrimination — of racial discrimination, because it is the state then that is setting up this property right.

That’s the state action as the state, whether it’s by common law or statutory law, the state is creating and recognizing a right of discrimination and it’s– if the– it seems to me that the words “may not deny protection, equal protection,” that the states may not deny it, by such, they may not create a property right to discriminate against Negroes.

Now, if I would– I want to bring this back to Shelley and Kraemer.

If Shelley and Kraemer is correct both on its reasoning and its result, our case must be reversed on both.

In other words, if Shelley and Kraemer– where that was an assumed private right to discriminate which could not be enforced in the courts, then you can assume a private right to discriminate here which cannot be enforced in the court.

But, I respectfully suggest there’s a better view of Shelley and Kraemer.

There is a view of Shelley and Kraemer that there was no private right to discriminate, that the state had no right to create or recognize a restrictive covenant against allowing Negroes into the neighborhood.

In other words, that some of the criticism of Shelley and Kraemer, namely that that created a right, that there was a private right which couldn’t be enforced, I most respectfully suggest that a better rationalization of Shelley and Kraemer might now be that the state couldn’t create or recognize a restrictive covenant.

William J. Brennan, Jr.:

Well, it didn’t– the state didn’t create the covenant.

The parties did.

Joseph L. Rauh, Jr.:

But the state created the substantive– the common or statutory law which made that a right, and I’m respectfully suggesting that state action– that it is state action when the state, either by its common law or its statutory law, either creates or recognizes the validity of that restrictive covenant.

And I am suggesting that whichever way you now look at Shelley and Kraemer, unless you’re prepared to overrule Shelley and Kraemer, today, you want to look at it that its reasoning was correct that there was a right of discrimination but it couldn’t be enforced, this applies here.

But, I am suggesting that there is a better part, that there is another and likely better view of Shelley and Kraemer that there wasn’t any right in the first place, because the Fourteenth Amendment forbids the state in its action to create or recognize that restrictive covenant as valid even between the parties.

Earl Warren:

Your argument would mean that, assuming that there — assuming that there is a private right of discrimination virtually–

Joseph L. Rauh, Jr.:

Yes, Your Honor.

Earl Warren:

There would be a right of self-power to enforce that right.

The constitution permits– forbids the creation of judicial remedy and plays itself out.

Joseph L. Rauh, Jr.:

That’s what Shelley and Kraemer has generally been interpreted to do, and that’s the– that is the hornbook interpretation of Shelley and Kraemer.

I was suggesting another interpretation of Shelley and Kraemer.

Earl Warren:

I take it, the hornbook interpretation.

Joseph L. Rauh, Jr.:

Yes, Your Honor.

And, that is, I take it, the interpretation that has been given to Shelley and Kraemer is that there was a right to discriminate but that the state couldn’t assist that and I’m suggesting–

Byron R. White:

Well, now, even under your second argument, you didn’t suggest that the property owner couldn’t put people off the property.

Joseph L. Rauh, Jr.:

Yes, I do, under the second argument of the–

Byron R. White:

You say that he fre– someone a– then, you are suggesting that other people have the right and privilege of entering the property and, if they’re prevented from doing it, then they have a cause of action against the property owner.

Joseph L. Rauh, Jr.:

Yes, Your Honor. I suggest that the right there that the state cannot recognize is the right to refuse to deal with people solely because of their color.

And I’m suggesting that the state may not either create or recognize that right and that, basically, Shelley and Kraemer makes more logic under such an interpretation than it does under the more customary interpretation.

Nevertheless–

Potter Stewart:

It would follow under your second argument then, Mr. Rauh, would it not, that if there’s no right on the part of the owner of Glen Echo to discriminate, then there is a correlative privilege on the part of anybody who wants to enter to get state enforcement of his right to enter?

Joseph L. Rauh, Jr.:

Not anybody who wants to enter.

Anybody who wants to enter and solely–

Potter Stewart:

Who was discriminated against because of his race?

Joseph L. Rauh, Jr.:

— kept out because of his race–

Potter Stewart:

Not for a–

Joseph L. Rauh, Jr.:

The man has every right in this world, every right to make his choice on bowties or anything or regular ties or he can choose the ma– his customers anyway he wants but there is one thing, and this eloquent language of this Court in Strauder makes it so clear, there is just one thing this Court will not recognize which are rights of discrimination because of race.

Potter Stewart:

So it would have followed that these petitioners could have gone, and probably should have gone, to the Maryland courts and brought an injunction action against Maryland.

Joseph L. Rauh, Jr.:

We did go, Your Honor.

We did go to the Maryland courts and that case was finally thrown out we– after the place opened up sometime later, but I believe there is such a right and maybe I’ll be– I want to make one thing clear.

Joseph L. Rauh, Jr.:

Maybe I’ll be back with some of these horrendous cases that have been suggested here, but I don’t have them today.

Potter Stewart:

Well, you do have that under your second argument.

Joseph L. Rauh, Jr.:

Under the second argument–

Potter Stewart:

Yes.

Joseph L. Rauh, Jr.:

You have some of these points, but I don’t have the church today.

I don’t have the home.

I have the biggest place of public accommodation probably in this whole big metropolitan area where thousands of people are attracted daily and, of course, that supports the size and the place and the licensing and the regulation and the support of this place by the Government all adds to it and, as Mr. Justice Douglas made clear his position on a restaurant in a concurring opinion, that are licensed restaurant, here, you have 1,000 times licensed place.

It’s licensed in every respect, regulated in every respect, supported in many respects.

In other words, their state involvement here, in addition to recognizing and creating this right– this alleged right of discrimination, I see my light is on.

William J. Brennan, Jr.:

Supposing the Glen Echo owner then so prosodically said “I’m going to exclude all people with red hair.”

Would he have the constitutional right to do that?

Joseph L. Rauh, Jr.:

Again, I’m fortunate that I haven’t brought– I’m not here with that case, but the logic, I would say– I would say that there is no necessary reason for saying that that is the same case as raised, because the point I would like to make clear is this Court’s nontolerance of any racial classification.

This Court has upheld classification after classification, but there has just been one classification that’s been inept to this Court and, as the Strauder case has said it more eloquently than I can, there, the situation simply was we will not recognize classifications based on color.

But only so far at least in the realm of state action.

Joseph L. Rauh, Jr.:

Well, as I was trying to suggest, Your Honor, I think I’m loaded with state action when you take the criminal conviction of the policeman and– but even here where you have a right of discrimination, if there is a right of discrimination in the private party, it didn’t come out of the air.

As this Court made clear in Erie and– against Tompkins, law doesn’t come out of the air.

It came from the state by either its adoption of the common law or its adoption of the statute and–

That’s just a roundabout way of saying that the state action isn’t required.

Joseph L. Rauh, Jr.:

If Your Honor– I most respectfully suggest, I find state action in creating law which recognizes discrimination as much as any other type of state action.

I didn’t– I was not trying to make a roundabout way of saying state action isn’t required because this — the Fourteenth Amendment does say “no state shall” and I wouldn’t want to be put in a position of say– of trying to say those words were in there.

What I do say is that state action can be found in the creation or recognition of a private right of discrimin– of racial discrimination because that right would not exist but for the action of the state in the adoption of its common law or statutory law.

Potter Stewart:

Mr. Rauh, just please sit down and, confining ourselves to your– this– your second argument.

I am correct, am I not, in my understanding that great many states have statutes forbidding racial discrimination in places such as Glen Echo?

Joseph L. Rauh, Jr.:

30, Your Honor.

Potter Stewart:

30.

Now, under your second argument, all those statutes are entirely redundant, aren’t they?

Joseph L. Rauh, Jr.:

No, Your Honor.

That– it wouldn’t quite be true.

Statutes do more than recognized rights.

They carry– they have methods of implementation.

Joseph L. Rauh, Jr.:

For example, most of these statutes you can get damages under, they’re in– provide for injunctions by the attorney general of the state.

You might’ve asked me whether I thought the same.

It was unnecessary to pass upon the accommodation statute in Congress today because the same question would arise.

My answer is it wouldn’t be necessary to declare the right because the right would be there but, certainly, the administration of that right, it would be well to have it spelled out, how you administer it, who’s going to bring the suits, whether it’s for damages, whether it’s criminal, all of these other things can be spelled out by statute.

I’d say those statutes are all quite necessary even if this Court were to adopt the second climb of argument which, I have tried to make it clear, is not necessary because there is so much state action in the first line.

Arthur J. Goldberg:

Mr. Rauh, it would not be hard under state action concept, I believe it is a Thirteenth Amendment issue because there is quite a difference between the (Inaudible).

Joseph L. Rauh, Jr.:

No, Your Honor.

It’s an abolition of slavery and– but I guess I thought I had gone far out enough with my suggestion but I do feel that I could but– I would have done well to buttress with the argument you suggest.

Arthur J. Goldberg:

To go farther out in the argument on the Fourteenth, as you’ve recommend, the Fourteenth was then basically (Inaudible), and therefore, I would as say that chapters Thirteenth and Fourteenth both seem to pick the same thing that the (Inaudible).

Joseph L. Rauh, Jr.:

If Your Honor please, I would’ve utilized that argument if I had thought of it.

Arthur J. Goldberg:

May I ask you one question about Maryland law.

May I ask you one question about Maryland law?

Most of the states provide that when a trespasser is on a man’s property, the owner of the property can use such force as maybe necessary to eject him.

Is that the law of Maryland?

Joseph L. Rauh, Jr.:

I believe so, Your Honor.

Hugo L. Black:

And suppose that the owner had ordered these people off and he had said if — he assaulted them and maybe done something pretty bad.

In many cases, most of us are familiar with, assault has been pretty serious.

The defense has been “well, he was on my property and wouldn’t get off.”

Could that Maryland law be unconstitutional in this case, if the owner had assaulted him and been tried for the assault or could the court have charged the jury, he had a right to use such force as necessary even to put him up– putting him off by taking his life, if necessary to protect his property?

Would that be unconstitutional under your argument?

Joseph L. Rauh, Jr.:

Yes, Your Honor, and I think, even under the first argument, the courts may not recognize the right of — the private right of discrimination, as in Shelley and Kraemer, the Court was not allowed to recognize the private right of discrimination.

And, under Barrows, your case is really closer, if I may suggest, to Barrows than it is to Shelley against Kramer because, in Barrows, they said that — this Court said that the courts of the state could not give damages, couldn’t recognize this right to discriminate for damages that I am suggesting, they couldn’t recognize it as a defense to a suit for assault and battery.

But, I would like to make this one other point about the self-help, if I might, Mr. Justice Black, and that’s that there hasn’t been self-help.

What has kept segregation alive in America today has been the state enforcement of private discrimination.

Hugo L. Black:

And we’ve held that unconstitutional, haven’t we?

Joseph L. Rauh, Jr.:

But it’s going on everyday and–

Hugo L. Black:

I am — but we’ve held that —

Joseph L. Rauh, Jr.:

Yes, Your Honor.

Hugo L. Black:

— unconstitutional.

Joseph L. Rauh, Jr.:

And I’m only suggesting that once this Court makes clear that there’ll be no police support to a refusal to serve, there’ll be no dirty business of self-help.

Joseph L. Rauh, Jr.:

That the proprietors do not engage in this dirty business of–

Hugo L. Black:

But you were wrong about the– but you were wrong about the constitutional distinction between the home and place of business or church and so forth.

You happen to be wrong about that.

What help would a man who had a home have could he get from the government to eject somebody that was in his house he didn’t want?

Joseph L. Rauh, Jr.:

I believe, if Your Honor please, that a home has other constitutional guarantees which conflict with the Fourteenth Amendment.

Hugo L. Black:

Which ones?

Joseph L. Rauh, Jr.:

The right of a homeowner which, I take it, goes back to English common law–

Hugo L. Black:

But the constitution–

Joseph L. Rauh, Jr.:

— that a homeowner’s–

Hugo L. Black:

The constitution — wrote a law for this country not based on the common law.

Joseph L. Rauh, Jr.:

Well, the Fourth, the Second and Fourth Amendments certainly indicate that the whole doctrine that the right of a– that the right of a man to treat his home as his castle is a right which is protected by our constitution against search and seizure and other — for other infringements, and I would suggest that–

Hugo L. Black:

But you can’t find anything in the Fourth Amendment, can you, to support your position you’re taking here?

Joseph L. Rauh, Jr.:

I am suggesting that a– that there is a homeowner’s right of privacy, which comes down through the British common law which has never been challenged in the United States and that the mistake that has been made in this case was eloquently made by the trial court, on page 74 of the record, when he said “this Court will follow the law that has already been adopted by it that a man’s property is his castle.”

I respectfully suggest that there couldn’t have been a more eloquent mistake than that.

It is not a man’s property that’s his castle.

It’s a man’s home.

And, when you go beyond his home, into a place of public accommodation, all reasons for treating one’s home as a castle are gone, namely, your right of privacy in your own dwellings and I–

Hugo L. Black:

The Fourth Amendment draws that distinction, doesn’t it?

Joseph L. Rauh, Jr.:

I’d say that it is implicit in the Fourth Amendment but, to my mind, the right of a–

Hugo L. Black:

But it protects– protects the home from unreasonable search and seizure–

Joseph L. Rauh, Jr.:

Yes.

Hugo L. Black:

— but does not protect the place of business?

Joseph L. Rauh, Jr.:

No, but there are different– it protects everything against unreasonable search and seizure but there are differences in the way the legal system treats a home from the way it treats–

Hugo L. Black:

The legal system–

Joseph L. Rauh, Jr.:

— other things.

Hugo L. Black:

The courts have to treat it according to the proper interpretation of the Constitution, do they not?

Joseph L. Rauh, Jr.:

I believe so, Your Honor.

And, it seems to me–

Hugo L. Black:

May I ask you if you see no difference between a– you’ve said several times, about Shelley and Kraemer, that this– I don’t think this point has been discussed.

Do you see no difference between allowing a man to make a contract which, in perpetuity, ties up the property of everybody so that those who buy it and pay for it cannot sell it and the right of a man to exercise ownership over his home or his property at an exact time when he’s claiming to a right that’s being invaded?

Joseph L. Rauh, Jr.:

I see– make two suggestions to Your Honor.

In first place, Shelley and Kraemer is not a perpetuity right.

I think it’s a very limited number of years–

Hugo L. Black:

— that was going 50 years old.

Joseph L. Rauh, Jr.:

For which they– they limit the property, but secondly, I would say that the law has always recognized that property right of the man to join with his neighbors, not to allow people to come in he didn’t like, and that right was only thrown out for one reason, the Fourteenth Amendment said that the states cannot enforce that right.

And, I’m suggesting here in the second point that not– that a better way to say it than that the states can’t enforce an existing right is that the states can’t create or recognize that right.

But, whichever way you put it, it seems to me, to distinguish Shelley and Kraemer from the sit-in cases is, in effect, to say that Shelley and Kraemer no longer exists beyond the–

Hugo L. Black:

Well, there the facts of your argument has to be, hasn’t it?

And I’m not saying it’s not right, but your argument has to be the owner of a place of business that you would say, as distinguished from the owner of a home or the owner of some other unknown things like churches and things like that–

Joseph L. Rauh, Jr.:

Private clubs, Your Honor.

Hugo L. Black:

The private clubs, you draw distinction and–

Joseph L. Rauh, Jr.:

Carpool in every–

Hugo L. Black:

Your argument gets down to this that the constitution forbids the owner of this property in this country to exercise the power of saying “I don’t want certain people on it because of their color.”

That’s where it finally gets to, doesn’t it?

Joseph L. Rauh, Jr.:

If he opens it to all of the public, I’d say, he may not exclude that part of the color– of the public which is colored, yes, Your Honor, and I believe that’s exactly the intention of–

Hugo L. Black:

That’s the basic issue, isn’t it?

Joseph L. Rauh, Jr.:

Yes, Your Honor, I believe that’s exactly the intention of the Fourteenth Amendment of the United States.

Potter Stewart:

Well, that’s the basic question.

Here, he didn’t open it to all the public. He opened it to all the public except Negroes.

Joseph L. Rauh, Jr.:

That is the one thing he may not do.

He may not open it to the public except Negroes.

That seems to me– that one distinction, he may open it to Catholics if he just– if it’s a church.

He may– you may in your own– in all– there may be all sorts of reasonable distinctions, but the one thing this Court has made clear over and over again, there’s one unreasonable distinction per se, race.

Arthur J. Goldberg:

Well, according to the (Inaudible) the adoption of the Fourteenth Amendment as a rational basis of discrimination–

Joseph L. Rauh, Jr.:

The court– yes, Your Honor, I– precisely.

But the Court has never announced any such broad suite of doctrine that you’re suggesting, that irrespective of state action, race is the one thing that’s taboo.

We’ve never said anything like that or ever approaching it.

Joseph L. Rauh, Jr.:

If Your Honor please, I tried to be very careful never to use the words “irrespective of state action.”

Well, then–

Joseph L. Rauh, Jr.:

I have found the state action.

Joseph L. Rauh, Jr.:

It may not be– I had thought it would be adequate but I am not suggesting anything irrespective of state action.

My point is that the private right of discrimination, if there is such, must come from the statutory or common law of a state, and that is your state action.

Am I right in thinking that, since this conviction took place, the owner has changed his policy and now the facilities– the park is desegregated?

Joseph L. Rauh, Jr.:

Yes, but our conviction, I still think–

I understand that.

Joseph L. Rauh, Jr.:

Yes.

You’re correct, Your Honor, and without any difficulty.

Yes, or without any compulsion either.

Joseph L. Rauh, Jr.:

Well, there was the compulsion of a– of the picket line, Your Honor.

Well, I understand that, without any legal compulsion.

Joseph L. Rauh, Jr.:

Yes, they desegregated before there was a legal compulsion but the legal compulsion now exists.

There is a Montgomery County–

Arthur J. Goldberg:

Persuasive or compulsive?

Joseph L. Rauh, Jr.:

Well, persuasive, Your Honor, as the– as an old picket line fellow myself.

Thank you. [Laughter]

Earl Warren:

Mr. Murphy.

Robert C. Murphy:

May it please the Court.

The trespass convictions in this case are firmly anchored to the proposition of a private business which operates in a facility which is purely private, such as the amusement park we have in this case, may, notwithstanding the fact that it requires a license from the state in order to operate, may nevertheless exclude arbitrarily from the premises such– its customers or invitees, that– and they do so, if it chooses, on no more rational or concrete basis than race, which was done in this case.

We certainly concede that the petitioners in this case were excluded from Glen Echo Park at that time because they were Negroes.

We believe, Your Honors, that the cases in both the state and the lower federal courts uniformly, without exception, support the proposition to which I have just referred here.

And we would submit that this Court has recognized and perhaps implicitly, if not expressly, recognized the validity of the proposition in such cases as Terminal Taxicab, Boynton versus Virginia, and Wilmington Parking Authority, all, of course cited in the State’s brief.

And, to argue, as petitioners do hear this morning, that the Fourteenth Amendment requires the state affirmatively to prevent such discrimination, as was present in this case, is really to ignore approximately 100 years of consistent constitutional interpretation of the amendment as being solely prohibitive in character upon the states.

Arthur J. Goldberg:

So, you don’t say that all that this Court has acquired is some affirmative action in order to show a state action, do you?

Couldn’t the state action (Inaudible) —

Robert C. Murphy:

The state, inaction — State inaction, perhaps in the reapportionment cases.

Arthur J. Goldberg:

And what of state (Inaudible) suppose the sheriff would stand by (Inaudible).

Robert C. Murphy:

Under the– under I– are you thinking of Screws, Your Honor?

Arthur J. Goldberg:

Yes.

Robert C. Murphy:

That was state in action but, there you were dealing with a statute which invested the person discriminated against with a civil right to sue in damages.

Arthur J. Goldberg:

For state action?

Robert C. Murphy:

For state action or something under color of state action which was present in that case.

Arthur J. Goldberg:

That failure to do something plainly called for (Inaudible) the right for inaction.

Robert C. Murphy:

Yes, sir.

Arthur J. Goldberg:

Nevertheless, do you view the form (Inaudible)?

Robert C. Murphy:

I think, basically, it is correct, but the principle or the proposition has never been applied in cases in the area in which we are now dealing, state inaction.

Arthur J. Goldberg:

(Inaudible)

Robert C. Murphy:

Well, basically, when you–

Arthur J. Goldberg:

(Inaudible)

Robert C. Murphy:

Basically, you deny someone something by affirmatively moving toward that end.

I’d say this, certainly, that the waters have been considerably muddy since the reapportionment cases.

There, we are dealing with state inaction, but in this particular field, they–

Potter Stewart:

What have they got to do with this case since they’re complicated enough on their own? [Laughter]

I don’t– I honestly don’t understand what (Inaudible) —

Robert C. Murphy:

Well, state inaction on the part of a legislature which denies individuals or dilutes their votes.

They’re failing to reapportion themselves as being–

Potter Stewart:

Those were equal protection cases.

Robert C. Murphy:

Denial of the process.

Potter Stewart:

Those cases arose under the Equal Protection Clause.

Robert C. Murphy:

Under the Fourteenth Amendment?

Potter Stewart:

Yes.

Robert C. Murphy:

Yes, sir.

Hugo L. Black:

As did these two.

Robert C. Murphy:

As these did.

Hugo L. Black:

What was the state action in Marsh against Alabama?

Robert C. Murphy:

In Marsh against Alabama, the state action, there, you– as Your Honor knows, having been the author of the opinion, they were dealing with a municipality and the state action in that case was in totally circumscribing First Amendment rights, not attempting to control them but just saying “no one can speak on my property under the guides of it being personal or private property,” of course, it was not.

It was a wholly-owned town of a — of a private corporation but, because of its features of course, was treated as any other municipality.

Hugo L. Black:

You mean that the state had permitted a group there to run the state as part of the common public affairs of the state.

That simply permitted it.

Had they taken any direct positive action in that case?

Robert C. Murphy:

Well, as I recall, they totally circumscribed the right of anyone to distribute the religious literature in that town of those particular petitioners in that case.

Robert C. Murphy:

They said “you cannot do it.”

Hugo L. Black:

The owners of the property did that, didn’t they?

Robert C. Murphy:

Yes, sir.

But this Court analogized the– that property as being public property because it was, in essence, a municipality or– being privately owned.

It was a municipality.

It took on all the public features of any other municipality.

Hugo L. Black:

It would be hard to find any– that what you usually think of is direct, own, frank public action on the part of the state, which barred these individuals to admit, except the enforcement– enforcing the law.

Robert C. Murphy:

Well, I think the application of the trespass statute in that case, coupled with the total proscription against the distribution of the legislature, was enough.

Hugo L. Black:

Total proscription by the company?

Robert C. Murphy:

Yes, sir.

It was totally arbitrary but, here, the company was acting not in its classic private sense but it, because of the nature of the town, in effect, exercising public power.

Arthur J. Goldberg:

Well, do you regard to read that what you were quoting from the State of Maryland with regard to recreational facilities for the city?

Robert C. Murphy:

In a limited degree, yes, Your Honor.

Arthur J. Goldberg:

Well, do you have anything in Maryland like the Ferris wheel of the (Inaudible)?

Robert C. Murphy:

Well, in Baltimore City, we have a major park, Druid Hill Park, which has, I believe, a carousel.

I could be wrong but it certainly did at one time.

Arthur J. Goldberg:

Have you believed it to be a comparable public park?

Robert C. Murphy:

Yes, sir.

Arthur J. Goldberg:

Even running an amusement park, just about anybody said, that when a park is given to (Inaudible) on a purely private function, can it?

Robert C. Murphy:

Well, I think it can.

I think it has to, Your Honor.

I think that the state and the– and its citizens can both engage in the same type of business at the same time if they choose to do so.

Arthur J. Goldberg:

I don’t doubt that, but that doesn’t mean that (Inaudible) as a smack of some public character where state says they can do it with the public.

Robert C. Murphy:

Well, every private function smacks of some public character.

This Court said that in the Terminal Taxicab, as I recall, that everything we do has some public aspect to it.

Arthur J. Goldberg:

That is (Inaudible).

Robert C. Murphy:

Of degree.

Arthur J. Goldberg:

Well, the question to decide would only be that (Inaudible) distribution process, is it (Inaudible)?

Robert C. Murphy:

No, sir, not the only one.

Certainly, I think that Glen Echo Park was probably near or around an urban renewal development.

Robert C. Murphy:

Certainly, you have highways leading into it but– and, up to this point, no court has ever taken those particular incidents and said that this made a private business or transform a private business into a– into a public function.

It’s all a matter of degree.

Arthur J. Goldberg:

It could be that the law on the public (Inaudible).

Robert C. Murphy:

Certainly, but not a whole lot more than a restaurant or a hotel, I wouldn’t think.

Arthur J. Goldberg:

But it may be that, in those instances, there’s also the public involvement, wouldn’t you say?

Robert C. Murphy:

Yes, sir, definitely.

There is public involvement in just about everything we do.

Earl Warren:

Mr. Murphy, in advertising for people to use this facility, did the company advertise generally to the public and invite everybody to the public or did it, in its advertisements, say “for Whites only”?

Robert C. Murphy:

No, sir.

Your Honor, it advertised generally for the public and not–

Earl Warren:

Generally for the public?

Robert C. Murphy:

It did not delineate Negroes from Whites.

It advertised generally.

All were apparently welcome.

Earl Warren:

Did it have any signs on its property, posted on its property, to prevent Negroes from–

Robert C. Murphy:

Your Honor, on page 11 of the record, something rather peculiar, the counsel for the state undertook to prove there was eight signs on the property.

If you’ll– but, he never quite got around in proving it.

He said if you look at that, Your Honor, for–

Earl Warren:

Could it be because they weren’t there?

Robert C. Murphy:

Well, I don’t.

I think they were there. [Laughter]

I think they were there but certainly, at this juncture, we would have to say that there were no signs on the property because the evidence does not show that there were.

Earl Warren:

Were there any fences or anything to prevent the public generally from coming into the–

Robert C. Murphy:

No, sir.

Earl Warren:

— into the place?

Robert C. Murphy:

No, sir.

Earl Warren:

And there was no limitation then on who could come in there until they got to one of the– one of the facilities.

Robert C. Murphy:

Well, Your Honor, there’s a statement in the record, which is not in my favor, which suggests that the policy of the park was to have its police force at the gates and to prevent Negroes from coming in.

Earl Warren:

I understood there were no gates.

Robert C. Murphy:

Well, I think there is a — gate in a sense of the– of a main entrance, but I don’t think it is fenced.

Robert C. Murphy:

There’s a gate in the sense of a main entrance where people would go in, but it’s not fenced.

But, in this particular incident on this particular night, they did not accost the petitioners until they were on the carousel and, I might add, a very appealing place for being arrested.

I don’t know whether that answers your question or not, Mr. Chief Justice.

Earl Warren:

Well, I think– I think I understand what your situation is.

Robert C. Murphy:

We would emphasize Your Honors that this Court has always interpreted the amendment, I say “always” now somewhat qualified, as being a limitation upon the exercise of power by a state at the risk of being somewhat trite.

I’d like to repeat very briefly some of the Court’s own statements construing the amendment as “directing no shield against merely private conduct, however discriminatory or wrongful.

The amendment is not a guarantee against the commission of individual offenses.

It does not add anything to the rights of one citizen as against another.

That individual invasion of individual rights is not the subject matter of the amendment.”

In short, this Court has said, and I think very recently, in either Peterson or Greenville, restated the fact that the action inhibited by the amendment was only such action as made fairly be said to be that of the states.

We do not believe that the–

Arthur J. Goldberg:

(Inaudible)

Robert C. Murphy:

Yes, sir.

Arthur J. Goldberg:

In any of the–

Robert C. Murphy:

In any of its manifestations, if it’s some– in some significant way involved in this case, these convictions would have to fall if you find that true.

Arthur J. Goldberg:

One of the reasons why (Inaudible).

Robert C. Murphy:

Your Honor, I am stuck with the sheriff’s– with the deputy sheriff in this case, and I’ll get to him in due time, I suppose, but–

Well, there’s really no difference between you and Mr. Rauh on the premise of would this case must be argued —

Robert C. Murphy:

State action.

— state action.

Robert C. Murphy:

Yes, sir.

So, he doesn’t argue with that.

Robert C. Murphy:

Well, he argues Shelley versus Kraemer as being a cure to all his problems.

Now, that doesn’t involve state action.

Robert C. Murphy:

I think this is a state action case.

Potter Stewart:

With all respect to my colloquy, a state action, that’s not the point.

Obviously, this is a state action.

This was a state conviction.

It’s not state action that decides whether or not this is under the Fourteenth Amendment or whether or not there was state discrimination.

Robert C. Murphy:

Well, it’s — a state action of a particular type that was–

Potter Stewart:

Exactly.

Robert C. Murphy:

— discriminatory or–

Potter Stewart:

It’s always state action every time there is a conviction in a state court.

Robert C. Murphy:

I think significant state involvement or significant state action–

Potter Stewart:

Well, the state denial of rights under this.

Robert C. Murphy:

We’ve attempted to distinguish Shelley versus Kraemer on the ground that, in Shelley, we’re dealing with constitutionally protected rights, and in the present case, you’re not.

There is no constitutionally protected right to enter property of– a private property of another contrary to the will of that owner.

Now, that perhaps is the most basic distinction we can find.

I believe there are others.

Alienation on the– on a fee would be one, as been mentioned here by the Court.

There are others, but in the factual situation that we have, this appears to me to be most direct and a basis upon which Shelley could be distinguished from the factual situation in the present case.

I might also add that in for– in enforcing the– a non-discriminatory type of trespass statute as was done in the instant case, that the state is simply recognizing the need in an ordered society that private choice, if it’s to exist, depends upon the support of sovereign sanctions.

This is a neutral enforcement.

It doesn’t induce others to discriminate.

It also I would feel affords the possibility.

And, I say possibility rather than likely fact of force and violence initiated by the owner.

Hugo L. Black:

Are you going to answer the argument to the effect that your statute neither made crime nor did you charge the crime to be that this person stayed on the premises of another after he was ordered to get away?

Robert C. Murphy:

Mr. Justice Black, we’ve reserved 15 minutes to answer the Solicitor General on that point.

Getting to the crux of the problem, as it has been pointed out, is simply to ascertain whether there has been state action of a particular character which is– involves the state with the discriminatory policy of the park.

In this connection, we would point out that the– I don’t think it’s seriously contended or argued that the discrimination in the park or by the park was either caused or induced or dictated or in any way mandated by any state law, any local law, any local policy, any custom, or any executive proclamation, such as we had in Lombard.

There is no state property and there is no state funds involved in the operation of the amusement park.

It had no interest in, absolutely no control over the park management, no interest or no control over the management of the private detective agency, by which Officer Collins was employed.

I think the only possible state involvement in the discriminatory policy of the court is to be found in the engagement of Collins.

He was somewhat of a unique individual occupying two roles.

Certainly, we must concede that he was a special deputy sheriff appointed under the statute that is peculiar to Montgomery County, cited in our brief.

We also must concede that he was wearing his special deputy sheriff’s badge at the time of the– of the taking into custody of the petitioners in this case, and that he also completed an application for a warrant which indicated that he was supplying, therefore, in an official capacity.

Arthur J. Goldberg:

The state, first of all, pleaded and then the court adjourned.

Robert C. Murphy:

Yes.

Arthur J. Goldberg:

(Inaudible) would concede the colloquy to be a very visual statement that the (Inaudible).

Robert C. Murphy:

Well, our constitution recognizes corporations in a manner of creating them.

Robert C. Murphy:

It doesn’t allow for special corporations.

Arthur J. Goldberg:

(Inaudible)

Robert C. Murphy:

He would not.

Arthur J. Goldberg:

On an additional ground, and I assume, we have (Inaudible) condition that it has to consist with the (Inaudible).

Robert C. Murphy:

Yes, sir, we have that right.

Montgomery County local laws are very heavily slated toward assuring itself of safety because, in an amusement park, you have many safety possibilities.

Arthur J. Goldberg:

(Inaudible) he brought the petitioner out there and he accused a man of violence and (Inaudible).

Robert C. Murphy:

Do you mean outside of the park, Your Honor?

Arthur J. Goldberg:

Yes.

As the records supply (Inaudible).

Robert C. Murphy:

Well, I’m not familiar with that.

Arthur J. Goldberg:

(Inaudible)

Robert C. Murphy:

This is a–

Arthur J. Goldberg:

They’re very well seen in the record where the road goes.

Does the record touch upon (Inaudible)?

Robert C. Murphy:

I’m not familiar, Your Honor, with the park but I would assume the roads do lead to it.

It’s a very popular place.

Tom C. Clark:

They just go to the parking area, do they not?

Robert C. Murphy:

I’m sorry, Mr. —

Tom C. Clark:

As I remember, I took my grandchildren out there several times.

The roads do go to a parking area where you park your car and then you walk from there to the park.

Robert C. Murphy:

We would point out, if Your Honors please, in addition to the factors which I just pointed out concerning Mr. Collins, that Mr. Collins was not paid by the State of Maryland.

He wasn’t even paid by the park.

He was par– he was paid by the detective agency which, of course, is an independent contractor.

There might be a point of distinction here also of some significance in the usual situation such as you have before the Court in the National Labor Relations Board versus Jones and Laughlin Steel Company.

When a large corporation has police officers on its payroll, it generally gets a commission directly from the state.

Private detective agencies, being independent contractors, under our law, cannot enjoy a commission directed from the state.

These people, particularly Collins in this case, did enjoy his special deputy sheriff’s commission by virtue of the statute.

Earl Warren:

Are all the policemen of this agency deputized?

Robert C. Murphy:

I’d– the record is not clear on that point.

Robert C. Murphy:

There was one other officer of that agency who was a special deputy sheriff, according to the record.

Earl Warren:

Who was?

Robert C. Murphy:

One other, yes, sir.

Earl Warren:

That’s on this property?

Robert C. Murphy:

Yes, sir.

But neither of them wore a state uniform.

Supposing the owner, in this particular instance, say “(Inaudible) here to my segregation policy, but I like to go and see this go on.

I don’t want you to arrest them.”

Would the officer have been obligated notwithstanding that–

Robert C. Murphy:

Well, I think Your Honor–

— to arrest them?

Robert C. Murphy:

That the– no, sir.

I do not think so.

The primary loyalty of this individual was to his employer, the detective agency.

The record does not suggest that Collins was a mere robot, that Collins was not a thinking man, that there– I think the Government suggests that he was under the pay and control directly of the park.

The park paid him.

The park told him what to do.

But, we would make the argument that his primary loyalty was to his own agency and he’s not going to do precisely what the employer or the park would have him do in this case.

If he did something wrong, his own agency would have to answer for it.

Now, we would say that the primary loyalty is not to the park.

The park didn’t pay him.

The agency paid him.

Earl Warren:

Well, then if his primary loyalty wasn’t to the park, the manager didn’t have the right to command him to do this thing now.

Robert C. Murphy:

Well, from Collins’ viewpoint, he did not.

Now, I think Collins, as an independent contractor, had to exercise some independent judgment.

Earl Warren:

He exercised his own judgment in putting these men off the court–

Robert C. Murphy:

Yes, sir.

Earl Warren:

— notwithstanding any orders that he might get from the manager.

Robert C. Murphy:

Well, he had a– he knew the wishes of the park.

Earl Warren:

He what?

Robert C. Murphy:

He knew what the wishes of the park management were.

Earl Warren:

Yes, but he was not obliged to follow them.

Robert C. Murphy:

Well, I would say that he could have refused to follow– but, of course, he did not.

Earl Warren:

I beg your pardon?

Robert C. Murphy:

He did not.

He could’ve undoubtedly refused to follow, for the consequences of that may well have been that the agency’s contract may have not been renewed the following year, but I do not believe that we can characterize Collins as a mere robot in the situation.

Earl Warren:

Why would–

Robert C. Murphy:

You can’t con–

Earl Warren:

Why would an agency like that want to deputize these men if they didn’t give them the– some power of the state?

Robert C. Murphy:

I think, Your Honor, that, in all canter, that that was the reason that they were deputized, because, under our state law, private detectives have absolutely no police power.

Earl Warren:

Who hasn’t?

Robert C. Murphy:

Private detective agencies–

Earl Warren:

Yes.

Robert C. Murphy:

— have no police power under our law.

Earl Warren:

Yes.

Arthur J. Goldberg:

Is this your last thing that implies the state, the one before that (Inaudible)?

Doesn’t it apply to the state if you amend this warrant to the new statute in (Inaudible) and the owner?

Robert C. Murphy:

I think he was agent of the owner.

Arthur J. Goldberg:

If he was agent of the owner, he’d want to defend the (Inaudible).

Robert C. Murphy:

Well, I think he had the right to exercise it, but, in doing what he did, he certainly acted as the agent of the owner.

If he did not act at all, we– of course, we wouldn’t have the problem, but he did act.

Arthur J. Goldberg:

In other words, (Inaudible) the purpose of exemption.

Robert C. Murphy:

I think that is very fair to say.

Arthur J. Goldberg:

Can I ask you this.

Am I correct that the demurrer adopted a public accommodations law?

Robert C. Murphy:

Yes, sir.

Arthur J. Goldberg:

And, what constitutional authority do you seem to have it based?

Robert C. Murphy:

We base it upon the authority of the state to pass all matter of laws and the public welfare.

Arthur J. Goldberg:

Therefore, the law will divide the public (Inaudible) of carrying out the state’s purpose to present discrimination.

Robert C. Murphy:

Yes, sir.

Robert C. Murphy:

We’ve looked upon — our state court looked upon Collins, as my brother says, as a double agent.

They used the word “dual agent” and, although our Court of Appeals’ decision is not as clear as it should be.

It appears to us that they are, in essence, saying that he was exercising no state authority at the time he took into custody these petitioners.

And, we would suggest to the Court that if there is any evidence to– if this Court finds any evidence of the– supporting the conclusion of the Court of Appeals in Maryland, it should adopt it.

Hence, we would not– we would have an individual exercising no state authority whatsoever.

We wouldn’t have a problem of a state involved.

We’d simply have an individual who happen to be a special deputy sheriff but not acting in any state capacity at the time–

Earl Warren:

You don’t exactly agree with that, do you?

William J. Brennan, Jr.:

Pardon me.

I thought you suggested earlier this arrest was not authorized except by virtue of his being a deputy sheriff, Collins with the state power to arrest.

Robert C. Murphy:

No, I think, as an agent, Mr. Justice Brennan, of the owner in this situation, he could’ve arrested, not in a capacity as a police officer but as an agent of the private owner.

In other words, the private owner himself could’ve arrested in this situation.

And, as the agent of the owner, acting in non-state capacity, he could’ve done the same thing.

Byron R. White:

Mr. Murphy, you said also that the reason the man was deputized was to give him some police power?

Robert C. Murphy:

I suggest that, Your Honor.

I do not know but I think, undoubtedly, and as much as we represent–

Byron R. White:

What powers– what powers did they want the man to have as a– as a deputy that the owner didn’t have himself?

Robert C. Murphy:

Well, I would think–

Byron R. White:

You say, the owner could’ve arrested in any event.

So, what powers did they want the man to have that the owner wouldn’t have had?

Robert C. Murphy:

I would think all the powers of a conservatory of the peace which include the power of arrest on and off the premises.

Actually, his authority was limited to the premises of Glen Echo Amusement Park but I think, basically, the– it’s assumed by all, including the Government and the petitioners, that Mr. Collins was deputized at the instance of the park.

There is nothing in the record to show in whose instance he was deputized at.

Byron R. White:

Well, I assume then from what you say that there was something that they wanted him to deputize for.

You have, on the property, some man with some powers that the owner wouldn’t have himself.

Robert C. Murphy:

Probably.

It may have —

Byron R. White:

Probably.

Robert C. Murphy:

It may well have been–

Byron R. White:

And the state was willing to put that sort of a person on the property?

Robert C. Murphy:

Well, that, I don’t think is a proper characterization.

Until we know at whose instance he was deputized, he could have been deputized for the–

Byron R. White:

I know, but the fact remains that he was deputized.

Robert C. Murphy:

He was deputized.

Byron R. White:

And, he wa– and, if a police officer has some powers that an owner wouldn’t have himself, he had it.

He has those powers.

Robert C. Murphy:

He had all the powers.

Byron R. White:

And he had them by virtue of the state having deputized him?

Robert C. Murphy:

Yes.

We would say, additionally, even if he was acting as a state officer, that he did really nothing any different in any other state officer would’ve done when called at the scene.

He simply arrested under these circumstances.

There are many cases upholding convictions on this basis, but I think he had a duty if he was acting in a state capacity at the time that he accosted the petitioners on the carousel, and they were violating a law.

As a state officer, a misdemeanor being committed in his presence, he may have had a duty to arrest.

The Government seems to suggest that a police officer should be some sort of a mediator, but I would submit that that’s basically something for the magistrate and not for a police officer.

And, there’s as– and there is certainly nothing in the record to suggest that Officer Collins, if he was acting in a state capacity, did not himself stop and think “should I or should I not arrest these people” and then decide on the– on the affirmative course of arresting.

William O. Douglas:

Does he clearly know (Inaudible) making the arrest in seeing the action here?

Robert C. Murphy:

Our courts– our courts have held, Mr. Justice Douglas, that when a police officer sees a misdemeanor committed in his presence, he has a duty to arrest.

William O. Douglas:

Did he see the misdemeanor committed in his presence?

Robert C. Murphy:

Yes, sir.

William O. Douglas:

You mean just in the first part that a misdemeanor has been committed–

Robert C. Murphy:

Has been committed.

Yes, sir.

William O. Douglas:

The question I asked is, certainly, it would be (Inaudible) and says “I would like someone to be arrested.”

Robert C. Murphy:

No, sir, only when he knows that a misdemeanor is committed and he sees it.

Tom C. Clark:

He knew the police of the park.

Robert C. Murphy:

Yes, sir.

He was employed in April initially.

This incident occurred in June.

Tom C. Clark:

Before he discussed it with the owner, he told the people to leave in five minutes, is that right?

Is that the chronology?

Robert C. Murphy:

The owner told the officer that if they didn’t leave in five minutes, he was to arrest them.

Tom C. Clark:

When did the officer approach the owner?

Robert C. Murphy:

Well, at the time they were on the carousel for the first time, the officer went to the owner again, as it’s suggested in the record, that everyone knew that this was going to happen all day long that there had been a rumor– persistent rumor that there was going to be some difficulty at the park that night.

So, they anticipated that these petitioners would arrive.

But to answer specifically your question, the affirmative evidence in the record shows that when they were on the carousel, seated there, Officer Collins then went to the park management and asked them what he should do.

Tom C. Clark:

That’s before the officer approached to these petitioners?

Robert C. Murphy:

My recollection is he approached them initially and then when they declined to leave, he went to the park manager, park management and asked them what his instruction should be, which was– perhaps suggest that he acted precisely in doing what he did.

Tom C. Clark:

And then he returned and told them to leave in five minutes?

Robert C. Murphy:

Yes, sir.

Tom C. Clark:

Which was the instruction of the owner.

Robert C. Murphy:

Instruction of the owner.

Of course the State of Maryland does not seek here to justify the private discrimination, nor do we appear here to approve it.

But, under the existing law, as we see it, these crimes– these convictions were not unconstitutionally secured and we would, therefore, respectfully submit that they should be affirmed.

Earl Warren:

But, do you believe, Mr. Murphy, that the state has the right to put its police officers in every or any place of business for the purpose of enforcing segregation?

Robert C. Murphy:

No, sir.

Earl Warren:

Well, then, aren’t you faced with that problem here?

Robert C. Murphy:

I think I am.

I can’t, in this– under this record, Mr. Chief Justice Warren, I can’t draw up a picture of this individual.

Any collusion between the sheriff, the appointing authority, and the Park to place this individual– to deputize him and place him in the gate to prevent these individuals from coming in.

The fact that he was a special deputy sheriff in this case, I think, is a happenstance.

I don’t think he was placed there to enforce or to better effectuate the park’s discriminatory policy.

So, I don’t think that there’s any collusive action.

Certainly, Officer Collins, himself, his presence at the park did not coerce the park management into discriminating.

Because he was there, he’s not responsible for the park’s discriminatory policy.

Earl Warren:

Certainly, the sheriff knew of these difficulties that were going on at the park for a long time.

Everybody else knew it.

It was in the press, wasn’t it, so far as to this?

So, he must have known that this deputy sheriff was in there enforcing a power.

Robert C. Murphy:

He’s a special deputy sheriff.

He’s not a deputy sheriff.

Earl Warren:

Well, I know, but he’s–

Robert C. Murphy:

He’s a special deputy sheriff.

Earl Warren:

But the deputy sheriff was a deputy sheriff in the eyes of the law.

Robert C. Murphy:

Well, this particular Act under which he was commissioned, Your Honor, went to effect in 1939.

It wasn’t something that was placed into effect at or about the time of these demonstrations with the sole purpose of employing someone in the Collins’ capacity.

Joseph L. Rauh, Jr.:

Can I just have 10 seconds?

Earl Warren:

Yes, you may have that much.

Joseph L. Rauh, Jr.:

I believe my colleagues pointed out that Mr. Justice Harlan asked me whether my second point would require the overruling of the civil rights cases.

The answer in our judgment is that it does not require the overruling of the civil right cases because the assumption was made at that time that the states would deal with this problem.

This is briefed at page 29 of the brief.