Griffin v. Maryland

PETITIONER:William L. Griffin et al.
RESPONDENT:Maryland
LOCATION:Beaumont Mills

DOCKET NO.: 6
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: Maryland Court of Appeals

CITATION: 378 US 130 (1964)
ARGUED: Nov 05, 1962
REARGUED: Oct 14, 1963 / Oct 15, 1963
DECIDED: Jun 22, 1964

ADVOCATES:
Jack Greenberg – for the petitioners
Joseph L. Rauh, Jr. – for the petitioners
Robert C. Murphy – Deputy Attorney General of Maryland, for the respondent
Russell R. Reno, Jr. – Assistant Attorney General of Maryland, for the respondent
Ralph S. Spritzer – by special leave of Court, argued the cause for the United States on the reargument, as amicus curiae, urging reversal

Facts of the case

On June 30, 1960, several white and black people picketed the private Glen Echo Amusement Park in Montgomery County, Maryland. The demonstrators protested against the park’s policy “not to have colored people on the rides, or in the park.” During the demonstration, William Griffin and four other Negroes entered the park to test its management’s resolve. A state deputy, who worked as a security staff member in the park, soon observed them. After informing them of the park’s racial policy, the deputy asked them to leave. When Griffin and his friends refused, they were arrested and later convicted for criminal trespass. State appellate courts affirmed the convictions. The Supreme Court granted certiorari.

Question

Did ordering five Negro patrons to leave a private amusement park, and arresting them for criminal trespass when they refused, violate their right to equal protection under the Fourteenth Amendment?

Earl Warren:

Number 26, William L. Griffin et al.,Petitioner, versus Maryland.

Mr. Rauh.

Joseph L. Rauh, Jr.:

May it please the Court.

This case is here on writ of certiorari to the Court of Appeals of Maryland to review the trespass conviction of the petitioners for trying to ride on the merry-go-round at Glen Echo Amusement Park.

Glen Echo Amusement Park is the major amusement facility of the National Capital Area.

Shortly after 7:00 in the evening, on June 30,1960, a number of persons, Negro and White, gathered outside of the entrance to Glen Echo and formed a picket line.

Approximately an hour later, the five petitioners, young Negro students, entered the park.

Now, if Your Honors please, there is no obstruction at this park.

There is no gate at the park.

There is no admission tickets.

You walk on to the park and then you buy a ticket for the particular thing you want; a merry-go-round or any other of the amusements that they have there, the roller coaster and so forth.

These five petitioners went on to the land where, as I say, there is no obstruction, they walk to the carousel.

They had tickets which had been given to them by the White associates, tickets being admittedly freely transferable, they went upon the merry-go-round and sat on the horses and the other animals.

The music was playing, but the carousel didn’t move.

Instead, a gentleman by the name of Francis J. Collins came up to them.

He had on the uniform of a private detective agency by which he was employed on detail to the Glen Echo Amusement Park and had on his lapel of his shirt, a badge, the Deputy Sheriff badge of Montgomery County which have been given to him pursuant to a provision of Montgomery County for such deputizing of sheriffs.

It is conceded that he had the full power of law upon Glen Echo Amusement Park.

Hugo L. Black:

May I ask you one question which I’d like to discuss as you go along.

Would that conduct have violated Section 1 of the Civil Rights Act which this Court held unconstitutional in 1883?

Joseph L. Rauh, Jr.:

Yes, Your Honor.

Earl Warren:

May I also ask, Mr. Rauh, if there were any concessions in this part that were open to Negros.

Joseph L. Rauh, Jr.:

No, Your Honor.

Earl Warren:

There were none?

Joseph L. Rauh, Jr.:

What had happened there —

Hugo L. Black:

Have you challenged it?

Have you challenged the holding of the Court on the Civil Rights Act?

Joseph L. Rauh, Jr.:

Yes, Your Honor, as the second have —

Hugo L. Black:

You have challenged it?

Joseph L. Rauh, Jr.:

Yes, Your Honor.

We are the overruling at the second half, under what I should refer to as the Justice Douglas’ opinion in the Garner case, that’s the second half of my argument.

Joseph L. Rauh, Jr.:

I would like to do the facts and then the first half which is simpler, but the answer to your question is, yes, I do urge the reconsideration of the Civil Rights cases.

It is not, however, a necessary part of my case by any manner or means, but I —

Hugo L. Black:

It might be, might it not, from some view?

Joseph L. Rauh, Jr.:

Yes, Your Honor.

I was thinking as listening to the last case that it might be necessary for those who did not feel that Shelley and Kraemer required a reversal as I do.

William O. Douglas:

But we would not be able to resurrect the federal statute, would we?

Joseph L. Rauh, Jr.:

That’s a question, Your Honor, as to whether that statute would in fact be resurrected.

I’m glad to say it’s not in this case whether it would do —

Hugo L. Black:

I think we did do that, didn’t we, with reference to one in the District of Columbia.

Joseph L. Rauh, Jr.:

It might be resurrected.

I’m not certain.

We have considered that and I don’t —

William O. Douglas:

I don’t think we’ve ever resurrected a statute that a previous Court has struck down as being unconstitutional.

Joseph L. Rauh, Jr.:

It’s never been repealed.

That’s as much as I can say.

Now —

Hugo L. Black:

What about the restaurant case, I don’t remember exactly.

Joseph L. Rauh, Jr.:

No, sir.

That was a case where the law had not previously been held unconstitutional, Your Honor.

Hugo L. Black:

What did you say?

Joseph L. Rauh, Jr.:

The Thompson Restaurant case, the law had not previously been held unconstitutional.

Hugo L. Black:

The argument was that it had passed into —

Joseph L. Rauh, Jr.:

It’s been lost.

Hugo L. Black:

Innocuous death certificate —

Joseph L. Rauh, Jr.:

Yes.

Hugo L. Black:

– you’ve tied there.

Joseph L. Rauh, Jr.:

And you held that it was in effect.

Hugo L. Black:

Yes.

Joseph L. Rauh, Jr.:

Now —

Arthur J. Goldberg:

[Inaudible]

Joseph L. Rauh, Jr.:

Yes, Your Honor.

I would just exactly —

Arthur J. Goldberg:

[Inaudible]

Joseph L. Rauh, Jr.:

Precise —

Arthur J. Goldberg:

[Inaudible]

Joseph L. Rauh, Jr.:

Precisely —

Arthur J. Goldberg:

[Inaudible]

Joseph L. Rauh, Jr.:

Exactly.

Here is Mr. Collins with the Deputy Sheriff on his lapel, walks up and says to these five young Negro students on the carousel, “I give you five minutes to get off the property.”

The policy of the park is not to have colored people on the rides or in the park.

They declined to move.

He arrested them.

He went — they went to an office to a substation at Bethesda.

They were tried and this is what came out at the trial.

Collins had orders from the owner from the first day he came to go up to any Negro on the premises, warn them off and, if they wouldn’t leave, arrest them for trespassing.

He had orders that very day of June 30, 1960 on those particular people from the manager, “give them five minutes to get off and, if they don’t get off, arrest them for trespassing.”

He carried on his orders.

We raised all the federal questions below and the question before the Court — the two questions, and I’d like to make clear what I see as the two questions because they are different and they require an answer to Justice Black’s question about the Civil Rights cases.

I say that Shelley and Kraemer requires a reversal and that even if it did not, as Mr. Justice Goldberg just asked me, there are additional points here above that which do require a reversal such is the fact that Collins was everything here.

Collins was the state.

He was the agent of the owner.

He was the one who made the crime by ask — by ordering them off.

He was — here, you had a confluence of state and private power discriminating.

This was perfectly clear that we have a case there whether you apply Shelley and Kraemer to the simple arrest and conviction or not.

But, we have a second point, whether in my time I will get to it, but I want to state it now before I elaborate the first because it is briefed fully and because I consider it of extreme importance, particularly as Justice Black asked me, for those who take a different view of Shelley and Kraemer, it might be important.

In the concurring opinion in the Garner case, Mr. Justice Douglas pointed out that a re — large retail establishment might very well be required to serve that the licensing and regulation might very well be the equivalent of state action and that a retail establishment might very well be required to serve.

The difference, therefore, between my two points, and I want to make it very clear that this is the real difference, is that under the first point, they can sit on the carousel, but under the second point, the carousel has to move.

In other words, under the first point, you have a right to sit at the hamburger stand and you can’t be removed by the police for sitting there in exercising your — and standing there and seeking service.

Under the second point, which does require the overruling of the Civil Rights cases, the second point, the hamburger must be served.

Now, the case does not involve the second point at this stage.

Joseph L. Rauh, Jr.:

For those who will agree on the first point, there is — under the constitutional doctrine of limit — taking the most limited ground, one would not get to the second point, but for those to whom the first point would seem — on which I couldn’t get an agreement on the first point, then it seems to me that we have squarely raised and we do ask a reconsideration of the Civil Rights cases.

Now, addressing myself to the first point, and I’m addressing myself, if I may, to Mr. Justice Harlan and Mr. Justice Stewart’s question of New York or Montana and here we have actually a little mix here.

We have Maryland, which is a border state, but I’m perfectly happy to treat this case as though it had happened in Montana or New York in answer to that question.

I believe that the mere arrest and trial and conviction of a Negro American for trespass when he is excluded for the sole reason that he is a Negro is a violation to the Equal Protection Clause and is a clearer case than Shelley and Kraemer.

I think if this Court had had the two cases side by side in 1948 and if it only had this — and had made a rule it would only decide one of them in favor of equal protection, we would have won that competition, and I think that for three reasons.

Mr. Greenberg made the first one very eloquently this morning, earlier, when he said that, in Shelley and Kraemer, they just held the courts open.

All that happened in Shelley and Kraemer was the state opened its courts.

Here, the state pulled a man by the scruff of the neck and took him into Court.

Certainly that’s more state action than simply leaving your courts open.

Secondly, this is criminal action and certainly, a — without — certainly a stronger action than civil action and, thirdly, I think this is critical, maybe the man in Shelley and Kraemer did have some right — did have some right of privacy.

The man in Shelley and Kraemer whose property right was really circumscribed by this Court was a man who had made an arrangement under which he thought Negros could not move next door.

There’s a lot more privacy, Your Honors, in who can be your neighbor than in who you serve at an amusement park with thousands of people coming in there every day.

Now, I’m not suggesting, I don’t think Shelley and Kraemer is correct.

I think it was eminently correct, but I am suggesting that this case is a far simpler case and I’m just limiting it now to arrest and conviction, that this is a far simpler case than Shelley against Kraemer.

If I may address myself to Mr. Justice Black’s question this morning, doesn’t the owner have the right to exclude?

Well, my — I can only answer a question with another question.

Didn’t the property owner in Shelley and Kraemer have a right to exclude?

Yes, he did, under the —

Hugo L. Black:

I don’t think I asked that question precisely that way.

I didn’t intend to, I probably did, I thought I had.

You didn’t finally have to reach the question whether the constitution itself, standing alone, forbids an owner of a mercantile establishment to choose his customers.

Joseph L. Rauh, Jr.:

You do not reach that in my judgment, Your Honor.

Just as the — just as this Court said in Shelley against Kraemer that the restrictive covenant was still valid, but it couldn’t be enforced in equity or in barrels in law.

So here, I presume this man, under my first ground, not under my second — under the first ground, this man could still put up a sign “no Negros admitted.”

Arthur J. Goldberg:

Could he be convicted and he could use self-help and convict the Negros, can he do this the entire time?

Joseph L. Rauh, Jr.:

That, if Your Honor please, is a difficult question.

We try — we’ve addressed ourselves to that in a footnote on page 29.

In a word, it depends on this, Your Honor — could — suppose he does.

If the bouncer pulls him off the property.

The man sues for battery.

Joseph L. Rauh, Jr.:

The bouncer sets up the right as a defense.

Then, it will depend on whether Your Honors decide that Barrel against Jackson applies because you are encouraging that sort of thing by recognizing this defense.

I know of no — the Barrel — Barrels against —

Arthur J. Goldberg:

You can’t urge either — you have heard he’s bombarded.

Joseph L. Rauh, Jr.:

I have — in fact, the result of my argument may create that, although, as we point out in our brief and we’ve been very careful to point out in our brief that we don’t believe that self-help — well, ha — we believe the self-help is a bugaboo that it’s just never going to occur.

Owners of public establishments don’t do the dirty business of throwing people off their property.

What has held this segregation in America together is the fact that the police have carried it out.

If this Court rules, as I believe it must unless it retreats from Shelley and Kraemer, and this Court hasn’t retreated from a Civil Rights case in my lifetime, if this Court makes this decision, as I believe it would, I don’t believe there’s a slightest shunt that there will be a major self-help operation.

Businessmen simply don’t carry it out.

They have relied on the police.

The police have done it for them, and that’s what you have in this case.

As to whether, legally, there will be a right of self-help, it will depend on this Court’s decision on whether Barrel against Jackson would permit that defense to an action on battery.

Arthur J. Goldberg:

Mr. Rauh, we don’t need to reach that question.

Joseph L. Rauh, Jr.:

No, Your Honor.

Arthur J. Goldberg:

Do we?

Joseph L. Rauh, Jr.:

No.

Arthur J. Goldberg:

If you go on here, you have a man who was the Deputy Sheriff, isn’t that correct?

Joseph L. Rauh, Jr.:

Precisely and, matter of fact, now that I’ve —

Arthur J. Goldberg:

Isn’t that the question you now argue?

Joseph L. Rauh, Jr.:

Yes, sir.

You bring me to — really to the next point.

You’re absolutely right.

In my deep conviction, Shelley against Kraemer applies just to arrest and conviction, I have deliberately withheld from the additional part of the case.

I would like to say one more thing, if you would excuse me, sir.

On the Shelley and Kraemer point, why I’m so convinced that this an easier case to charge Kraemer just the arrest and conviction.

If Your Honors would put your mind to a license of a state which said — well, they were a license to Glen Echo by the State of Maryland.

They have a license from the State of Maryland.

Suppose the license read “to serve as a public amusement park, Whites only.”

I don’t think there’s any question that that’s illegal.

Indeed, under the — Justice Stewart’s concurring opinion in the Burton against Wilmington Parking Authority, it seems to me, that’s exactly what he is talking — what you are talking about there.

Joseph L. Rauh, Jr.:

So, this is clearly — I don’t get an argument, I don’t believe, in saying that if you issue the license for Whites only, that that’s illegal.

What difference is it where you issue a neutral license and put the whole state apparatus to reaching the result of “for Whites only”?

What real difference is there between a license for Whites only and a neutral license with the entire state criminal power coming down to make it operate as a license for Whites only?

And, on this basis, I would conclude my belief that Shelley and Kraemer applies to the mere arrest and conviction, but and this is a big “but,” actually, there is far more in the instant case than mere judicial enforcement of racial discrimination.

So much more that maybe I’m engaging in wishful thinking and hoping that the problem I have just presented will reach the consideration of this Court.

Here, you have Mr. Collins with a Deputy Sheriff’s badge on him, running the day-to-day operation of discrimination of Glen Echo Park.

Mr. Collins was the chief discriminator.

Mr. Collins created the crime.

This is very interesting if you think about it for a moment.

Could he do that, they are definitive orders from his employer?

Joseph L. Rauh, Jr.:

No.

He did it on orders from his employers but he was the state and he —

There are differences in this case, I take it before he took the Act in this particular case, he consulted with his employer.

Joseph L. Rauh, Jr.:

Yes, Your Honor.

He had orders from the beginning of his employment to keep Negros off and then, in this particular instance, he got particular orders.

So, we —

Is there any evidence in the case that this was an exception to the general deputy conduct, that he ever acted without specific orders of his employers?

Joseph L. Rauh, Jr.:

Well, if Your Honor please, I think that this was the first test of the — as far as I know, this was the first test.

There is a second one in the companion case, but this was the first test.

So, here is Mr. Collins, a state agent, and what I was just going to say, he created the crime.

By that, I mean in order for this to have been a crime, the Supreme Court — the Court of Appeals of Maryland said that it was not a crime going on the property.

The only crime was not to get off when you were told to get off.

Now, who told them to get off?

Mr. Collins.

This was an essential part of the whole case and there’s — a very funny thing happened here.

You can’t tell whether Collins is private or public.

If Your Honors would look at the two warrants, at the very beginning of the record there’s a (b) then the pages aren’t numbered at the very beginning of the record.

The first warrant that was issued under F (b), here on the record, refers in the middle, “after having been told by the Deputy Sheriff for Glen Echo Park to leave the property.

Well, that didn’t commit a crime because he had to be told by an agent of the owner to get off the property.

So, look at (c), if Your Honors would do me that favor, where they changed that in the amended warrant to say, in the middle of the page, “after having been dully notified by an agent of Kebar Inc.”

Joseph L. Rauh, Jr.:

Here, you had the private and public activities of this man, Collin, so mixed up that they — that when they write the warrants they don’t know which to say.

First, they say he was acting as a policeman, then, they say he was acting as an agent.

Well, the truth of the matter is, if I may misuse the word, he was a double agent.

He was perfectly clearly an agent for the owners and he was perfectly clearly an agent of the state as the police.

And, I suggest that one doesn’t have to go any farther with this case than the very simple proposition that when a private party discriminates against Negros and the agent, for carrying out that discrimination on a day-to-day basis, is the state, there is a clear violation of the Equal Protection Clause.

Arthur J. Goldberg:

Doesn’t the warrant, itself — the amended warrant would give you the definition?

Joseph L. Rauh, Jr.:

Yes, Your Honor.

Arthur J. Goldberg:

[Inaudible]

Joseph L. Rauh, Jr.:

Yes.

Arthur J. Goldberg:

[Inaudible]

Joseph L. Rauh, Jr.:

Precisely, Your Honor, and under page A, the very first page which is the application for the warrant, he’s in there as the Deputy Sheriff and he said, as such, he did leave the thing so that it’s quite correct to say that you have this complete relationship here.

Now, at this stage —

That would be undeputized police officer, in every practical sense, occupy that dual relationship?

Joseph L. Rauh, Jr.:

The deputized police?

The undeputized police officer.

Joseph L. Rauh, Jr.:

You mean the ordinary po —

The ordinary police.

Joseph L. Rauh, Jr.:

Yes, Your Honor.

But, no —

What difference is there in craft?

What difference is there in the practical relationship —

Joseph L. Rauh, Jr.:

There are two diff —

Between the man and the other man?

Joseph L. Rauh, Jr.:

There are two differences, Your Honor, between what happened here and what I would call the naked Shelley-Kraemer arrest versus arrest and conviction, there are two differences.

In the first place, this man got in earlier than a policeman.

In other words, he was there on the spot.

He was the agent to make the crime.

He was not just called in after they wanted him off.

He was the one that ordered him off.

So, first place, it’s earlier in relationship and, second place, he had no discretion.

Joseph L. Rauh, Jr.:

Suppose the policeman had come on, a very nice policeman that was trying to do his job, sees five young Negro students on a merry-go-round.

Now, the first thing a policeman who isn’t an agent is going to say to himself “well, my goodness! How can you arrest five nice-looking young students for wanting to ride on a horse on a merry-go-round?”

And, he’d say “well, the first thing I’m going to try to do is see if I can settle this.”

So, he’d say to the manager “let them alone” the man — or he would try to say to the boys “well, will you go after one ride?”

He isn’t going to just automatically arrest in this kind of a situation, but this man would automatically arrest because this man was paid.

His job was to arrest them.

His job in his private capacity was to arrest them, and he carried out without ever considering and saying “can’t we think of some way out of this rather than an arrest here?”

And that, I suggest, is the two differences, Your Honor, both on time —

Well, based on analysis, if the ordinary police officer was unable to persuade the land owner to settle the case because to put it would be duty to arrest, wouldn’t it?

Joseph L. Rauh, Jr.:

I do not believe so, Your Honor.

I think there is a discretion in here.

He might leave it to a civil action.

If there was a clear violation.

Joseph L. Rauh, Jr.:

He might.

There are cases in which the man thinks that the matter is of such small degree.

You don’t get an arrest on every criminal action in this country.

He might, if he felt it was a minor infraction, he might leave it for some civil action.

In all probability, he would have arrested after he’d tried mediation.

I will go that far with Your Honor.

Now, just in conclusion of point one, I’d like to just make a reference to the difference bet — in the government’s position and our own in this case.

The government relies entirely on what I have just referred to what Mr. Justice Goldberg referred to as the additional points, Collins, his badge, putting together private.

I say that there are two grounds here, both in the Shelley and Kraemer grounds and that the government only makes the second of the grounds.

The government apparently feels that the second ground is conclusive.

It does seem to me that the first ground here is equally strong, but that, together, they leave no question as to the outcome.

It is, therefore, with a certain amount of humility that I would argue the second point.

However, it does become relevant, as Justice Black indicated, for those who might not accept the first argument, we take the position in point two of our brief that Glen Echo didn’t have any right to discriminate, that the use of the words “lawful right to discriminate” or “lawful right –” I think that we u — the use of the words below were “lawful policy of segregation” is a misnomer.

We accept the statement by Mr. Justice Douglas in Garner that those who run a retail establishment under permit from a municipality operate, in my view, a public facility in which there can be no more discrimination based on race than is constitutionally permitted in the more customary type of public facility.

Now, let us look at this —

Earl Warren:

They said on which provision of the constitution?

Joseph L. Rauh, Jr.:

The Fourteenth Amendment, if Your Honor please, the Equal Protection Clause.

Joseph L. Rauh, Jr.:

And, I might say there that I don’t put much stock in people who say “if you do something on Equal Protection Clause, you’re sure going to cause a lot of trouble under due process, the Red-head case and so forth,” that seems to me to be just a trumped up point.

The fact is the Fourteenth Amendment, as this Court has said and said, was primarily designed for the benefit of the colored race and it seems to me that what we are saying here is that we — that rules that will be set up on Equal Protection Clause which is absolute do not necessarily determine how the due process clause would apply in the future to the same institution, and I’m referring here to Glen Echo.

Look at Glen Echo now.

This is the major amusement facility in this whole area of a 1.5 million people.

Now, it may — the licenses you have to get are legit.

They are set forth on page 33 of our brief.

The regulation, the determined regulation of this place is legit, the support that they get from the state.

So, what you have here, looked at as the point of state regulation is licensing regulation and support.

But, then you have something else, and this I would suggest, this is an in — an activity affected with the public interest.

This is one closed with a vital public interest.

Hugo L. Black:

What activity is not affected by — doesn’t affect the public interest?

Joseph L. Rauh, Jr.:

Well, if Your Honor is now referring to the cases in which the government of state and federal can regulate, I would say, under this Court’s decision, that the legislative body would generally be accepted in what they did so hold.

And, I do accept that, Your Honor, but there — I would say that how far that may go, one doesn’t know now.

I’m saying what I do know, is that this interest, this is a big operation, this is a big public interest in this area.

Whether you look at this institution from the fact of the state down, licensing regulation and so forth, or from the effect on the community, it seems to me that you have here a significant governmental action, a significant state action, whether done through the fact of licensing regulation and support, as Justice Douglas points out, or whether, because of the tremendous significance of the operation, it takes on characteristics of state action and put together this is — this organization cannot discriminate — it does not have a lawful power.

Under this line of reasoning, the sign “Negros only” would be illegal.

Under the —

Hugo L. Black:

Are you saying that, under those circumstances, it is the state?

Joseph L. Rauh, Jr.:

It is the state for the purpose of the Fourteenth Amendment, yes.

Hugo L. Black:

I see.

Joseph L. Rauh, Jr.:

For the purpose of — I want to qualify myself as carefully as I can.

It is the state for the purpose of the Equal Protection Clause of the Fourteenth Amendment.

Tom C. Clark:

Any license to that effect?

Joseph L. Rauh, Jr.:

No, I think the way — we can’t go to say everything.

I don’t have — we don’t have that case here.

There are going to be situations where it may not rise to the dignity of saying this.

I’m not suggesting that.

William O. Douglas:

Like the Metropolitan Club?

Joseph L. Rauh, Jr.:

Well, there is a privacy there and I wouldn’t — I would say probably not.

I would like to say —

Hugo L. Black:

But it takes the public interest, I understand.

Joseph L. Rauh, Jr.:

Well —

[Inaudible]

Joseph L. Rauh, Jr.:

Heaven save me from discussing a club to which would undermine along.

[Inaudible]

Joseph L. Rauh, Jr.:

Yes, Your Honor, there must be state action and come — I’d like to address myself —

[Inaudible]

Joseph L. Rauh, Jr.:

The Civil Rights case has said that the Fourteenth Amendment only applies to state action, not to private action.

That does not have to be overruled for any purpose, I accept that.

[Inaudible]

Joseph L. Rauh, Jr.:

I think they have to be overruled for another purpose.

The Civil Rights cases involved a statute of the federal government on amusement parks, private amusement parks.

Now, I would assume they would have to be overruled and it has to be overruled because if the federal government couldn’t regulate the private amusement park in this regard, then I would assume that the state could use its power to enforce the Act.

In other words, if this were in fact, what I say it is, a part of the state then the Civil Rights statutes would have been constitutional, not unconstitutional as Your Honors — as the previous Court held, but that brings me to what it seems to me is the fundamental problem here on this second point.

Two cases were decided in the retreat from the Fourteenth Amendment.

One was Plessy against Ferguson, one was a Civil Rights Act — one was a Civil Rights case.

In both of these, there were brilliant dissents which foresaw the future.

In one of these, this Court has now reversed and accepted that dissenting opinion, it seems to me that the dissenting opinion was right here and that the real explanation for this case was that, at that time, the real doctrine of — the Doctrine of Property Rights was on top and the Doctrine of Human Rights was under that.

In this situation, it seems to me, the time has come to overrule the Civil Rights cases.

Now, I say that, and again would like to end and save the rest of my time with the thought that, except for those who don’t believe in the first point, I do not — I quite agree that I have argued more than is before the Court.

William O. Douglas:

You’re willing to win on either ground.

Joseph L. Rauh, Jr.:

Well, I think that, as one lawyer up here once said when he made a suggestion on that ground, he got a Supreme Court Justice angry.

I shall not do the same.

I’d like to reserve the rest of my time.

Earl Warren:

You may do that.

Mr. Murphy.

Robert C. Murphy:

May it please the Court.

There is in Maryland no law, there’s no governmental policy, there’s no state or locally induced custom which requires exclusion of Negros from amusement parks, places of amusement or for that matter, any other type of private business in Maryland.

I certainly agree with my brother that the State of Maryland, in this respect, does not differ from the State of Montana, from the State of Michigan.

The racially discriminatory practice of the amusement park was not, therefore, in this case, caused by or the result of any state policy or law.

Robert C. Murphy:

I think the record is plainly devoid of any showing that the policy of the park excluding Negros was in any way influenced, aided, promoted, or in any way assisted by any state law or any state policy by any locally induced custom.

William O. Douglas:

How about the decision of the Court of Appeals?

Robert C. Murphy:

I don’t understand your question, Mr. Justice Douglas.

William O. Douglas:

The Court of Appeals sustained the convictions and they imposed sanctions of the state on these p —

Robert C. Murphy:

On the basis of the existing law as they saw.

William O. Douglas:

Yes.

Robert C. Murphy:

I think, on the contrary, the record in this case shows that the park management, for 51 years, had been practicing discrimination on racial line.

This was a close family held corporation.

There are only three members in the family that owned it at the time of this act of discrimination, but they had, for 51 years, excluded Negros as a matter of business of choice.

Now, the fact that there was no governmental restraint involved here or governmental action that would induce them to have such an exclusionary policy.

I think it’s evidenced by the fact that and is conceded by my brother that shortly after the conclusion of these cases in the lower Court, the park abandoned its policy.

So that, the park now is fully integrated and, shortly after that, on the other side of the coin, Montgomery County enacted an Equal Accommodations Bill, effective January of 1962, but I think the element of state action, the state policy, state law is apparently absent in this case.

William O. Douglas:

Are you going to discuss Shelley and Kraemer?

Robert C. Murphy:

Yes, sir.

Earl Warren:

You haven’t said anything yet about the Deputy Sheriff.

Robert C. Murphy:

I’m saving that to the end.

Earl Warren:

I beg your pardon?

Robert C. Murphy:

I’m saving that, sir, if I can.

I’ll get there.

Earl Warren:

Yes, that’s alright.

Do it at your own time.

Robert C. Murphy:

I’m tying it in some order which makes sense to me to get to these points perhaps which are more difficult.

I like to pass the easy ones perhaps in the beginning.

Now, the State of Maryland has no profound thoughts on the existing law which gives the right, common law right to a private entrepreneur such as an amusement park to arbitrarily discriminate as to its invitees.

We simply cite the existing law to you.

We rely strongly on the Howard Johnson’s case of the Fourth Circuit.

There’s also I think some semi-implicit recognition of the validity of these common law concepts and both important, and the Burton versus Wilmington Park Authority cases.

The requirement of a license to operate, as is present in this case, from a Montgomery County with relation to amusement parks does not matter to convert this facility, which is private, into a public facility.

I have difficulty seeing how any facility open to the public is not affected with public interest.

I don’t know where you would draw the line if mere licensure was tantamount to a — to taking away from the private entrepreneur of his common law right of free choice.

Robert C. Murphy:

Certainly, there’s no franchise or monopoly granted by the mere grant of a license.

Frequently, they’re solely for revenue purposes.

William O. Douglas:

How about inns, and hotels, and motels in Maryland?

Robert C. Murphy:

Certainly, they — under the common law, they cannot differentiate or discriminate.

William O. Douglas:

Against Negros.

Robert C. Murphy:

Against Negros or anyone else.

William O. Douglas:

So, you’ve got some invasion there of this sacred private property.

Robert C. Murphy:

Yes, sir, but it was sanctioned. It was in the common law part of our constitution.

Sir, I think that is a distinction.

William O. Douglas:

It has age on its side.

Robert C. Murphy:

Age on its side.

We would, therefore, adopt the entire statement of Justice Soper in the Fourth Circuit in Williams versus Harold Johnson that the license laws do not fill the void that we are speaking of now.

Now, my brothers assert that even absence of a law, state law, or state policy requiring the exclusion of Negros in the private amusement park that, nevertheless, the mere act of arrest and a conviction is a violation of equal protection.

They rely strongly on Shelley versus Kraemer.

One distinction that I see very clearly between this case and Shelley is that, in Shelley, we had — we’re dealing with a constitutionally protected right.

There, we had a willing buyer and a willing seller in a completed contract.

On the other hand, here, we do not have — we only have one willing party.

The other is totally unwilling.

He seeks to assert his right of private choice.

The common law gives him that right.

It gives — the constitution does not give the petitioners in this case any constitutional right to go on private property against the will of the owner to make the contract.

I think there is a basic distinction between this and Shelley.

Earl Warren:

Were there any signs or anything posted to the effect that colored people were not be admitted to the park?

Robert C. Murphy:

No, sir, not to my understanding.

Earl Warren:

How would they know then that they weren’t welcome?

Robert C. Murphy:

I think it was simply understood because of the long practice of the parks in 51 years of fostering segregation.

Earl Warren:

If they were strangers to the community and they walked in there, would that make a difference in your case?

Robert C. Murphy:

Probably not, in the ultimate result, if the private property owner did not want them there and asked them to leave.

Earl Warren:

But, so far as going into the property is concerned, there was no trespass, no violation.

Robert C. Murphy:

Simply entering, no.

Earl Warren:

No.

It was only when they refused to get out when told to do so —

Robert C. Murphy:

Yes, sir.

Earl Warren:

That the offense rose.

Robert C. Murphy:

Yes, sir.

Earl Warren:

Yes.

Robert C. Murphy:

We feel in the case of Griffin versus Collins, which is a civil side of this particular case that we have before the Court now, Chief Justice Thompson had the same question that is now being raised and I’d like to quote very briefly from his opinion.

He said “simply granted the right of the proprietor to choose his customers and to eject trespassers, it can hardly be the law, as plaintiffs contend, that the proprietor may use such force as he and his employees possess but may not call on a peace officer to enforce his rights.

We subscribe to that.

We think that all has been done here and I’m borrowing now from the government’s amicus curiae brief, we simply recognize, and given scope to this concept, that in a civilized community where legal remedies have been substituted for force, private choice necessarily depends upon the support of sovereign sanctions.

The action of the state here is entirely neutral.

There’s no policy.

There’s no custom.

There’s no law that requires segregation.

Their action has been entirely neutral.

Now, against this background of no law, no policy, no custom, we come to the question, I think, the heart of the matter is the role played in this by Deputy Sheriff Collins, as he is now known, prior to the —

Earl Warren:

Is what you say —

Robert C. Murphy:

As he is now known.

At one time, Your Honor, the only one that knew he was a Deputy Sheriff was himself and that, in the case below, the fact of his holding a special deputy sheriff’s commission was volunteered by him and that appears at R14 of the record.

Earl Warren:

I thought that Mr. Rauh pointed out that your own warrant of arrest, your own warrant of arrest referred to him as – as the Deputy Sheriff who ordered him off the property.

Robert C. Murphy:

Well, he was a Deputy Sheriff and he did go —

Earl Warren:

Well, you said it didn’t become known until his own admission at the trial.

Robert C. Murphy:

Well, perhaps I should rephrase that.

It was important in anyone’s mind —

Earl Warren:

Why did they change their warrant of arrest then if it wasn’t important to them?

Robert C. Murphy:

Well, that may have appeared important at the lower Court trial to someone but —

What did the badge say?

Robert C. Murphy:

The record does not say what it says, but I did find out, Your Honor, that the badge says “Special Deputy Sheriff Montgomery County,” and it’s a rather —

[Inaudible]

Robert C. Murphy:

Yes, sir.

Robert C. Murphy:

The record doesn’t show.

[Inaudible]

Robert C. Murphy:

The record simply says that I was wearing a badge.

[Inaudible]

Robert C. Murphy:

Well, he volunteered in his testimony that he was a special —

Didn’t he have it on the badge, special deputy sheriff?

Robert C. Murphy:

Well, after he told people he was a special deputy sheriff, yes. Prior to that time, it is true that when he arrested and took the petitioners to the police station, a warrant was filled out in which his capacity as a special deputy sheriff was indicated.

Earl Warren:

Well, how could anyone fail to know if he had it on his — on the outside of his shirt, a Special Deputy Sheriff of Montgomery County?

Robert C. Murphy:

There’s no evidence that he had it on the outside of his shirt.

We can presume that.

There’s no evidence what the badge was.

I think we could concede —

Earl Warren:

But you told us what —

Robert C. Murphy:

That he had a badge.

Earl Warren:

You told us what it was.

Robert C. Murphy:

Yes, sir, but it’s not in the record.

I’m not now arguing that —

Earl Warren:

But why are you —

Robert C. Murphy:

He had a tin badge that he, himself, bought from some place.

Earl Warren:

Beg your pardon?

Robert C. Murphy:

I said I’m not now arguing that he had some badge that he himself may have bought or conjured up and put on himself without authority.

Earl Warren:

Well, isn’t he — isn’t the Deputy Sheriff, whether he’s special or not, entitled to wear the badge of his authority?

Robert C. Murphy:

Yes, sir.

Earl Warren:

Well, why did you say without authority?

Robert C. Murphy:

Perhaps I’m getting neither ahead of myself or behind myself.

I — in the beginning of this trial, this Mr. Collins — Francis Collins was known and throughout the trial, as the transcript will indicate, he was always Lieutenant Collins.

Now, Lieutenant Collins was a Lieutenant in the National Detective Agency which was a private detective agency and, under the laws of Maryland, they have absolutely no police power, no more than —

William O. Douglas:

Like a Kentucky Colonel.

Robert C. Murphy:

That’s right.

Very – [Laughter] very frequently, these gentlemen fashioned themselves as police officers, while they’re not.

Robert C. Murphy:

Now, it may well have been, and the record does not show this either, upon whose application Mr. Collins was deputized.

Now, it seems to be assumed that he was deputized upon the application of a park because he was a deputy sheriff in and for the park.

Earl Warren:

What difference would it make if he was the Deputy Sheriff?

Robert C. Murphy:

Well, I think, Mr. Justice, that the basic distinction here is that the government and the petitioners are trying to conjure up some picture of the State of Maryland colluding with the park.

Here is the authority of the State of Maryland to perpetuate a racially discriminative policy.

This is not true.

The words are used, I think, in the government’s brief, amicus curiae that the State of Maryland prostituted its police power to the private purposes of the park.

Earl Warren:

Well, suppose it wasn’t done by the park at all, but suppose it was a policeman who was doing what they call moonlighting, working on off hours at some park or dance hall or someplace like that, then he did have — but he have his badge on and had the power of a police officer, what difference would it make?

Robert C. Murphy:

Well, is this truly state action?

Earl Warren:

I beg your pardon?

Robert C. Murphy:

Would that truly be state action?

Earl Warren:

If he acts as a policeman, I would think it would be.

Robert C. Murphy:

Would that be, in the words of the Wilmington Park case, state action to some significant extent? Would it be significant?

Earl Warren:

It would be pretty significant if a man comes around with any kind of uniform and has a badge on that says Deputy Sheriff and says “get off of this property or I’ll arrest you.”

It’s significant in that case.

Robert C. Murphy:

In this case, Your Honor, he did not say that until after he consulted with the park management.

Earl Warren:

What difference would that make?

Robert C. Murphy:

Well, it might make a difference.

I think —

Earl Warren:

In so far as —

Robert C. Murphy:

It may seem in the same position as any other police officer and the result — the ultimate result of what occurred.

Earl Warren:

Well —

Arthur J. Goldberg:

Mr. Murphy, as I follow you, when you said the first time reference has made, the Deputy Sheriff Collins sometime in the trial or [Inaudible], I’m referring to the matter of the transcript as to the [Inaudible] process.

First of them, as stated in page A of the transcript when he filed his first application [Inaudible] of the deputy sheriff, the first warrant that was issued, the state warrant [Inaudible] they referred to him as the sheriff.

On page 3 of the [Inaudible], they referred to him as deputy sheriff.

On page 3, again — now the state attorney holding the case, on page 3 of the record, he reversed it and [Inaudible] the deputy sheriff.

He said on page 3, [Inaudible] the defense counsel made a motion to dismiss on this ground.

He fairly stated [Inaudible] directly, and declared void by the record right from the onset of the trial?

Robert C. Murphy:

Well, it seemed to me that it did not take it on any importance until we’re at the appellate level.

Arthur J. Goldberg:

Could you say that if they have a motion to [Inaudible], the counsel [Inaudible]?

Robert C. Murphy:

Very frequently —

Arthur J. Goldberg:

[Inaudible]

Robert C. Murphy:

Very frequently, a gentleman who has a uniform on, such as Lieutenant Collins had, he was known to be a private detective in the minds of many people, including police officers, they are thought to be a police officer.

Arthur J. Goldberg:

But, the one thing that have a [Inaudible]

Robert C. Murphy:

Including the —

Arthur J. Goldberg:

[Inaudible]

Robert C. Murphy:

Well, it isn’t clear that he moved to dismiss on that precise ground.

Arthur J. Goldberg:

[Inaudible] to make by the state officer for the purpose of enforcing the policy of color segregation.

I submit to the court to [Inaudible] that the state policy is unconstitutional.

I don’t know how he could make any claim.

Robert C. Murphy:

Well, perhaps — again, and this is perhaps speculative on my part, he was — the private detective many he sought to be a state officer.

They are licensed to go into this business and thought by many to be a state officer.

I can conjure up a scene when these petitioners were taken to the police station of a warrant being handed to Mr. Collins and he just merely completed it, but even if he was and I think if we concede that he was a deputy sheriff and that it was important —

Earl Warren:

And was wearing a badge.

Robert C. Murphy:

And was wearing a badge of his office, that he did ask his employer what he should do and was told to tell them the policy of the park and if they did not leave within a reasonable time, to arrest them.

It’s precisely what he did.

He — I think he finally acted no differently than any other police officer who call — was called in the scene and perhaps he was already on the scene.

Earl Warren:

Is that — I’m just going to ask you this.

If — is there any difference?

Did he have any different power by reason of the fact that he was a deputy sheriff than if he had not been and had only been a lieutenant of this —

Robert C. Murphy:

Yes, that’s the difference between chalk and cheese.

As a private detective, he had no police power.

Earl Warren:

I beg your pardon?

Robert C. Murphy:

As a private detective, he had no police power whatsoever.

Earl Warren:

Yes.

Robert C. Murphy:

As a special deputy sheriff, he possessed the power of a deputy sheriff who in turn has the powers of a sheriff which are common law powers of being a conservator of the peace, full powers of arrest —

Earl Warren:

Yes.

Robert C. Murphy:

On the premises.

Earl Warren:

Yes.

Robert C. Murphy:

A major difference.

Earl Warren:

Yes.

If he had not had this power, he could not have arrested in this place.

Robert C. Murphy:

He could not have arrested and perhaps this is significant because he did not act as a police officer.

If he was acting as a police officer, a warrant would have been totally unnecessary.

This was a misdemeanor committed in his presence.

Earl Warren:

But did he get a warrant before he arrested the man?

Robert C. Murphy:

No, sir.

Earl Warren:

He took them to jail.

Robert C. Murphy:

He arrested him first.

Earl Warren:

He took him to jail —

Robert C. Murphy:

I think we’re using that —

Earl Warren:

Then got the warrant, didn’t he?

Robert C. Murphy:

If we use the word “arrest” in its common connotation, he withheld — were restrained of their liberty.

They were very happy that this occurred because that’s precisely why they came to the park, to get arrested, but he went, as any other private citizen, and had a warrant sworn out.

Our Court of Appeals took the position in effect that he was exercising no state authority that — or if he was exercising state authority, this did not detract from his role as an agent of the park.

Perhaps I misunderstood your answer to the Chief Justice. I thought you said first power arrest in this case stemming from his authority as Deputy Sheriff.

Robert C. Murphy:

It did.

However, he did not exercise it in the traditional sense.

If a misdemeanor is committed in an officer’s presence, he arrests and very seldom, if ever, gets a warrant.

In this case —

Well, supposing this man had been properly deputized, supposing he simply been a detective, a private detective, could he have arrested this man — this —

Robert C. Murphy:

It would have been an un —

Could he have made this arrest with the request of the owner?

Robert C. Murphy:

Not under Maryland law, the arrest would not have been valid because there was no breach of the peace involved in this.

Your Court — your State Court seems to have made otherwise.

Robert C. Murphy:

Well, that’s a matter of some embarrassment to me.[Laughter]

Well, whether embarrassing to you or not, what’s the Maryland law?

Robert C. Murphy:

The Maryland law, I think, is as is stated in our brief.

Do you think the Court in its affirmation —

Robert C. Murphy:

Unless the Court of Appeals had this in mind that a breach of the peace was eminent because there is some evidence that there was a milling crowd because of this breach of the peace, this threatened breach of the peace, then the private citizen had the power of arrest.

Robert C. Murphy:

Now, I don’t know but if we take out totally this idea of an eminent breach of peace, I think the law is as stated in our brief.

Arthur J. Goldberg:

Do I understand correctly that you’re saying that your client did not arrest the man without the warrant and amended this?

Robert C. Murphy:

Well, certainly from a legal standpoint, he arrested them.

He might, in his own mind and in the park’s mind, felt that there was no arrest, but as you and I know it, there was restraint of the liberty of the petitioners and henceforth an arrest.

Arthur J. Goldberg:

Do you say that [Inaudible]?

Did he testify that he arrested them?

Robert C. Murphy:

He did say that.

Private detectives are forever arresting someone, but they have no authority to arrest.

Arthur J. Goldberg:

Are you saying there’s no arrest in the park?

Robert C. Murphy:

No, sir, I’m not saying that.

I’m saying that an arrest undoubtedly took place at the time that Lieutenant Collins took these petitioners under his wing or under his charge, but whether the arrest was lawful or unlawful at that point, he did get a warrant which indicates —

William J. Brennan, Jr.:

Are you saying he would not have done — or he would have done exactly what he did do even if he had not been commissioned as deputy sheriff?

Robert C. Murphy:

I think he would have had to do that.

I think the fact that he went and got a warrant indicated, at least in his own mind, that he was not arresting as a police officer.

Now, the fact that the warrant say that he was Special Deputy Sheriff Collins, we don’t know who completed those warrants.

It could have been an individual who knew him as such, but you can’t —

William J. Brennan, Jr.:

Maybe someone who looked at his badge.

Robert C. Murphy:

Perhaps. [Laughter]

William J. Brennan, Jr.:

But I don’t think that it alters the picture because the final result is the same.

Earl Warren:

Mr. Murphy, may I ask you this.

What was the date is this offense, the alleged offense?

Robert C. Murphy:

June 30, 1960.

Earl Warren:

And what was the date of the state warrant, the warrant that he got out for his arrest?

Robert C. Murphy:

I think the same night.

Earl Warren:

Same night?

Robert C. Murphy:

Same night.

Earl Warren:

I see, but when was it — when did they file it?

Robert C. Murphy:

I think it was August 4.

Earl Warren:

Why that delay between June 30 and August 4?

Robert C. Murphy:

They prayed a jury trial, I understand.

Earl Warren:

I beg your pardon?

Robert C. Murphy:

They prayed a jury trial.

Earl Warren:

I guess I don’t understand your procedure.

That’s what — I was just wondering if a month and almost a week later seems rather a long time in which to file a warrant that was issued as a result of an arrest in a misdemeanor case.

Robert C. Murphy:

Well, ordinarily, these cases are tried at the magistrate level, but you can pray a jury trial that was done — as was done here, was tried in the Circuit Court, hence, this delay in trial.

Earl Warren:

I see, but they don’t file the warrant until the trial?

Robert C. Murphy:

No, I think they did.

Earl Warren:

I thought the trial —

Robert C. Murphy:

Excuse me?

Earl Warren:

In other states I know they file it as soon as it’s sworn to.

Robert C. Murphy:

I would like to point out also that — some suggestion that the park paid Officer Collins, that is not true.

Officer Collins was not in the employ of the park in any traditional sense.

He was employed in National Detective Agency.

His loyalty was to the National Detective Agency.

Earl Warren:

Then he didn’t owe any duty to the park management.

Robert C. Murphy:

I think he did, but he owed his employer’s duty to the park management.

Earl Warren:

But, then there was a necessary agency between him and —

Robert C. Murphy:

Yes, sir, but —

Earl Warren:

It wouldn’t make any difference, would it, if he acted through them whether he’s employed by the agency or by the park?

Robert C. Murphy:

Well, the suggestion here, again, is made that this is some sort of an alliance between Collins and the park to perpetuate the park’s policy that he was like a robot.

He did precisely what the park told him because he was paid by the park.

He could not exercise any independent judgment.

Earl Warren:

Well, you say here that that’s all he was doing, don’t you?

He was following the orders of the park.

Robert C. Murphy:

No, sir, I do not, I’m saying that he was — there’s nothing in the record to show that he was hired for any reason other than the normal reason that you hire an agency for the protection of the park to maintain the peace and good order on the premises.

Earl Warren:

But, my point is — my point was this, what I was going to ask you about.

You say that he was not acting as a peace officer, but all he was doing was acting under the orders of the park.

Robert C. Murphy:

Well, I say that, on the evidence before the Court, it could and was concluded by our own Court of Appeals that he was exercising no state authority.

He had it, but he didn’t exercise it in this particular situation.

Earl Warren:

But he couldn’t have acted as he did if he didn’t been an officer.

Robert C. Murphy:

Well, I think that anyone can make an unlawful arrest.

The simple fact that he said “I arrest you” does not indicate, at least to me, that he means that he is arresting in his public capacity.

Earl Warren:

But we’re concerned here whether the arrest was unlawful or not.

Robert C. Murphy:

Well, I think —

Earl Warren:

That’s the ultimate issue, isn’t it?

Robert C. Murphy:

Not entirely, I think not.

I think that the ultimate issue here is, was there any state action involved which, to some significant extent, supports a private policy of racial discrimination.

I could very well see, Your Honor, if we had some collusive arrangement between the State of Maryland using special deputy sheriffs, appointed upon the application, and an employee of a private entrepreneur who wants to practice racial discrimination an very unholy alliance.

But, these facts —

Tom C. Clark:

That’s not everyday though, is it?

I don’t mean the collusion part, but the regular business is, isn’t it true, protecting like a night watchman and things of that kind?

The state, under deputy — the sheriff locally will deputize a man in an instance of an employer or in the interest of an agency?

Robert C. Murphy:

Yes, sir.

That is certainly true.

Well, we have a state —

Tom C. Clark:

But you say there’s no significance between that and that they did not deputize him?

Robert C. Murphy:

No, I think there is significance.

Tom C. Clark:

Why do they do it?

Robert C. Murphy:

Well, I think that’s a question as to who did it here.

It’s another problem.

Was it done by the park or was it done by Officer Collins in his own individual capacity so that he would be a more effective individual on his job?

Was it done by his employer, the Detective Agency?

Tom C. Clark:

As a matter of fact, he’ll do it in order to have some dignity of the law to hire that particular person live up to —

Robert C. Murphy:

I think that’s largely true.

I might say that the State of Maryland has a statewide Act whereby the governor of the state commissions special policemen for certain types of corporations upon the application of the corporation, railroad corporation, steamboat, it’s been broadened, recently, to include most any type of corporation, mercantile included.

It would not be broad enough to encompass this type of facility.

Earl Warren:

But that’s for the purpose of giving them a police power that they wouldn’t have if they were simple night watchman or —

Robert C. Murphy:

I think that’s the ultimate effect, whether that’s the purpose would be questionable.

We feel, if Your Honors please, the viewing all the circumstances together did not entirely clear that — it’s not clear at all that Officer Collins — Lieutenant Collins was exercising any state authority and, even if he was exercising state authority, I think the ultimate effect is no different and if a police officer was called to the scene and asked the issue at the instance of the private power to arrest, as was done in this particular case.

The —

William O. Douglas:

Suppose that this — suppose we had a different constitutional provision involved.

Suppose the petitioner was ar — had been arrested in this way by this man for making a speech and have been convicted by the Maryland Courts and have been sustained by the Court of Appeals.

Would that be state action?

Robert C. Murphy:

It would the same type — type of state action that would be involved here, no greater.

It might be innocent state action, I don’t know if there’s a distinction between innocent or knowing and unknowing state action.

It would seem to be when the ultimate result is being considered.

I’d like to just, finally, to point out that the record does indicate very strongly that Officer Collins, whatever his capacity, acted in this particular situation after conferring with the park management.

He was told by the park management that he was to give the petitioners an opportunity to leave, which he did, and, following their refusal to leave, he arrested them just like any other police officer.

Earl Warren:

Mr. Rauh.

Joseph L. Rauh, Jr.:

First, just think we ought to just clear up once more, Mr. Justice Goldberg did it.

I’d like to do it again just to who this man, Collins, was.

If you look at A, first place, Mr. — my brother here said that he was not arresting as a police officer.

A makes clear that he was because, after the words in the third line on page A “Deputy Sheriff,” it says “and as such.”

They stuck the word the — you didn’t have to stick in the word there “as such” to make it as clear as a nose on your face but it’s what they did.

“As such” he was acting as a police officer.

Then, on page 14, if Your Honors would do me the courtesy of turning to page 14, Mr. Murphy suggested that there was no evidence he was — he had this badge on the outside.

May I read the quote?

May I read Mr. Collins’ testimony?

It said “what uniform?”

“I was in uniform.”

“What uniform was that?”

“Of the National Detective Agency, blue pants, white shirt, black tie, and white coat and wearing a special deputy sheriff’s badge.”

The word “wearing” is there.

Now, I’m presuming that the word “wearing” does not mean on the inside, which would be a most uncomfortable way of having a deputy sheriff’s badge.

Earl Warren:

here is that now?

Joseph L. Rauh, Jr.:

Excuse me, sir, on page 14 of the record.

Earl Warren:

14.

Joseph L. Rauh, Jr.:

About the sixth or seventh of the line, “wearing a special deputy sheriff’s badge.”

Then, Mr. Murphy suggests that maybe we didn’t have something to — the park didn’t have much to do with this man.

And, if you’ll go down just about six more lines, it says, question, “and specifically by what two organizations are you employed?”

Joseph L. Rauh, Jr.:

“Rekab Inc. and Kebar Inc. which are the two corporations which own Glen Echo.”

Then, on page 55 of the record, if Your Honors please, which leaves any — which removes any last doubt about who was running Lieutenant Collins, “does the National Detective Agency,” right at the top of page 55, “make their employees available to you and you direct them as you see fit?”

“You,” this is a question to the manager, “direct them as you see fit.”

“That is correct.”

In other words, there is no question that this man, Collins, had the badge on his shirt and was under the direction of the management, and you get a confluence of state and private power to discriminate against these people and I don’t think there is — anything goes beyond that.

Mr. Murphy suggested that — I think this — I don’t know, it was said just at the end of the sentence, but I did want to correct it, that this was — that they — precisely why they came to the park was to get arrested.

This is not correct, if Your Honors please.

On page 61 of the record, a witness testified on this very point.

Towards the end of page 61, a witness who had been there as part of their group said “you thought you would be able to use the facilities of Glen Echo Park.”

“I thought I might.”

This, in fact, is the truth.

They wanted to use them.

They wanted to breakdown segregation.

They didn’t know whether they would or they wouldn’t.

The truth of the matter was, and the record is clear on this, they honestly didn’t know what would happen.

It has been the experience in the last year since the City of Movement started but, very often, when people went and it was finally — the management finally had to make the final decision, they made the honorable one.

And, there was a chance here and in fact, within a year, they did make the honorable one and it was opened up.

Now, just to come back, so much for Collins and that part of the case, to come back to Shelley and Kraemer, the Chief Justice asked Mr. Murphy for a distinction of Shelley and Kraemer.

The suggestion is that, in Shelley and Kraemer, there was a willing buyer and a willing seller.

Here, that there is an unwilling seller.

That is a difference and I respectfully suggest it is a most meaningless difference because in Shelley against Kraemer, there was a property right, just as there is here.

Who was the property right in?

It was in the covenanter who wanted to keep Negros from being his neighbors.

There was a covenant in Shelley and Kraemer where a man said to another man “we agree that no Negro will go on your property because I don’t want a Negro next to me.”

The second man violated his contract and sold.

This Court held that, although that was a property right and this Court wasn’t saying it was illegal to try and have that covenant, you would neither allow an injunction against that or damages for the breach of that.

That’s exactly what we have here, under this half of the case, that this man here, this owner of Glen Echo, had a right to say no Negros but he didn’t have a right to get the state to enforce it for him anymore than the covenanter had a right not to have a Negro neighbor, had a right to have the state enforce that for him.

Thank you.