Petitioners, Negro "sit-in" demonstrators, were arrested by
police officers for criminal trespass and breach of the peace
following their peaceful refusal to leave a Columbia, South
Carolina, drug store lunch counter where they had been refused
service. In appealing convictions for breach of the peace, the
petitioners took general exceptions which, though the same as those
the State Supreme Court held adequate to raise questions of the
sufficiency of the evidence in other recent cases, were held by
that court which affirmed lower court convictions on both charges
in this case to be inadequate for that purpose here.
Held:
1. State procedural requirements not strictly or regularly
followed cannot deprive this Court of the right to review. P.
378 U. S.
149.
2. This Court will not assume that the State Supreme Court, on
the merits, would have held petitioners punishable for both
trespass and breach of the peace based on their peacefully
remaining at the lunch counter after they had been asked to leave.
P.
378 U. S.
150.
3. The breach of peace convictions cannot stand, there having
been no evidence to support them.
Thompson v. City of
Louisville, 362 U. S. 199,
followed. P.
378 U. S.
151.
Judgments of conviction in 239 S.C. 395,
123
S.E.2d 521, for breach of the peace reversed and remanded, and
for criminal trespass reversed and remanded per curiam for reasons
stated in
Bouie v. City of Columbia, post, p.
378 U. S. 347.
Page 378 U. S. 147
MR. JUSTICE BLACK, delivered the opinion of the Court.
Like
Bouie v. City of Columbia, post, p.
378 U. S. 347,
this case involves a "sit-in" demonstration in Columbia, South
Carolina, this one at the Taylor Street Pharmacy. Negroes and
whites alike are invited to come and buy goods in all the store's
departments, but the lunch counter, while it sells food to Negroes
to take out, has a policy of refusing to let them sit there and
eat. Petitioners, five Negro college students, entered the store
and, after some of them had made purchases in the front part,
proceeded to the lunch counter at the rear, where they sat down and
waited for service. The store manager had arranged the day before
for the police to come and arrest any "sit-in" demonstrators who
might refuse to leave after being requested to do so. As a result,
three officers were waiting at the store when petitioners arrived.
The manager announced to petitioners that he would not serve them
and that they would have to leave; then at the request of one of
the officers, he went with the officer to each petitioner and asked
each petitioner individually to leave. When petitioners remained
seated at the counter, they were arrested and charged with criminal
trespass [
Footnote 1] and
Page 378 U. S. 148
breach of the peace. [
Footnote
2] The Recorder's Court convicted them on both charges, the
County Court affirmed in an unreported opinion, and the Supreme
Court of South Carolina also affirmed. 239 S.C. 395,
123 S.E.2d
521. Like the petitioners in
Bouie, supra, these
petitioners claim that their convictions violate the Due Process
and Equal Protection Clauses of the Fourteenth Amendment, and, as
in
Bouie, we granted certiorari. 374 U.S. 804.
We consider first the question whether petitioners' convictions
for breach of the peace are constitutionally valid. Apart from the
fact that petitioners remained in the store after having been asked
to leave, there is a complete and utter lack of any evidence, and
no suggestion in the opinions of any of the courts below, that any
of the petitioners did anything disorderly or did anything other
than politely ask for service. Petitioners argue that either the
breach of peace statute as applied to their conduct was
unconstitutionally vague for failure to give fair warning,
cf.
Lanzetta v. New Jersey, 306 U. S. 451, or
there was no evidence to support convictions for violation of that
statute,
cf. Thompson v. City of Louisville, 362 U.
S. 199.
Page 378 U. S. 149
The City replies that, because the Supreme Court of South
Carolina refused to pass on objections to the breach of peace
conviction on the ground that the exceptions taken below were "too
general to be considered," [
Footnote 3] we are precluded from considering petitioners'
constitutional objections. The exceptions on this point read:
"1. The Court erred in refusing to hold that the City failed to
prove a
prima facie case."
"2. The Court erred in refusing to hold that the City failed to
establish the
corpus delicti."
We cannot accept the City's argument, since, in
City of
Columbia v. Bouie, 239 S.C. 570,
124 S.E.2d
332,
rev'd on another point, post, p.
378 U. S. 347,
decided only a few weeks after the present case, the State Supreme
Court had before it the identical two exceptions, and, relying on
them, reversed for insufficiency of evidence the conviction of a
peaceful and quiet sit-in demonstrator who had been convicted on a
charge of resisting arrest. In three other cases decided in the
two-month period preceding the present decision, it likewise
considered these same exceptions enough to raise the question of
sufficiency of evidence, and, in one of those three cases, decided
the day before the present one, it reversed on that ground a
conviction for interfering with an officer. [
Footnote 4] We have often pointed out that state
procedural requirements which are not strictly or regularly
followed cannot deprive us of the right to review.
See, e.g.,
NAACP v. Alabama ex rel. Flowers, 377 U.
S. 288;
Shuttlesworth v. City of Birmingham,
376 U. S. 339;
Wright v. Georgia, 373 U. S. 284;
Page 378 U. S. 150
NAACP v. Alabama ex rel. Patterson, 357 U.
S. 449. We conclude that there is no adequate state
ground barring our review of the breach of peace convictions.
Turning to the merits, the only evidence to which the City
refers to justify the breach of peace convictions here, and the
only possibly relevant evidence which we have been able to find in
the record, is a suggestion that petitioners' mere presence seated
at the counter might possibly have tended to move onlookers to
commit acts of violence. As we pointed out above, it is undisputed
in the record that petitioners were polite, quiet, and peaceful
from the time they entered the store to the time they left. And, as
the City concedes,
"it cannot be said that the South Carolina Supreme Court has,
upon proper presentation and proper briefing, held that the acts of
the Petitioners are clearly within the prohibitions of the statutes
involved."
Accordingly, we are unwilling to assume, and find it hard to
believe, that the State Supreme Court, if it had passed on the
point, [
Footnote 5] would have
held that petitioners could be punished for trespass, and for
breach of the peace as well, based on the single fact that they had
remained after they had been ordered to leave. And further, because
of the frequent occasions on which we have reversed under the
Fourteenth Amendment convictions of peaceful individuals who were
convicted of breach of the peace because of the acts of hostile
onlookers, we are reluctant to assume that the breach of peace
statute covers petitioners' conduct here.
Cf. e.g., Henry v.
City of Rock Hill, 376 U. S. 776;
Wright v. Georgia, supra; Edwards v. South Carolina,
372 U. S. 229;
Taylor v. Louisiana, 370 U. S. 154;
Garner v.
Louisiana, 368 U.S.
Page 378 U. S. 151
157;
Terminiello v. Chicago, 337 U. S.
1. Since there was no evidence to support the breach of
peace convictions, they should not stand.
Thompson v. City of
Louisville, 362 U. S. 199.
[
Footnote 6]
The judgments of conviction for breach of the peace are
reversed, and the case is remanded for proceedings not inconsistent
with this opinion.
It is so ordered.
PER CURIAM.
With respect to the criminal trespass convictions, those
judgments are also reversed, and the case remanded for the reasons
stated in
Bouie v. City of Columbia, post, p.
378 U. S. 347.
MR. JUSTICE DOUGLAS would reverse for the reasons stated in his
opinion in
Bell v. Maryland, post, p.
378 U. S.
242.
MR. JUSTICE GOLDBERG, with whom THE CHIEF JUSTICE joins, would,
while joining in the opinion and judgments of the Court, also
reverse for the reasons stated in the concurring opinion of MR.
JUSTICE GOLDBERG in
Bell v. Maryland, post, p.
378 U. S.
286.
[
Footnote 1]
Section 16-386, Code of Laws of South Carolina, 1952 (1960
Supp.).
[
Footnote 2]
Section 15-909, Code of Laws of South Carolina, 1952,
provides:
"
Disorderly conduct, etc. -- The mayor or intendant and
any alderman, councilman or warden of any city or town in this
State may, in person, arrest, or may authorize and require any
marshal or constable especially appointed for that purpose to
arrest, any person who, within the corporate limits of such city or
town, may be engaged in a breach of the peace, any riotous or
disorderly conduct, open obscenity, public drunkenness or any other
conduct grossly indecent or dangerous to the citizens of such city
or town or any of them. Upon conviction before the mayor or
intendant or city or town council, such person may be committed to
the guardhouse which the mayor or intendant or city or town council
is authorized to establish or to the county jail or to the county
chain-gang for a term not exceeding thirty days, and if such
conviction be for disorderly conduct, such person may also be fined
not exceeding one hundred dollars;
provided, that this
section shall not be construed to prevent trial by jury."
[
Footnote 3]
239 S.C. at 399, 123 S.E.2d at 523.
[
Footnote 4]
City of Charleston v. Mitchell, 239 S.C. 376,
123 S.E.2d
512,
rev'd on another point, p. 551.
See also
State v. Edwards, 239 S.C. 339,
123 S.E.2d
247,
rev'd on another point sub nom. Edwards v. South
Carolina, 372 U. S. 229;
City of Greenville v. Peterson, 239 S.C. 298,
122 S.E.2d
826,
rev'd on another point, 373 U. S. 373 U.S.
244 (allegation of failure to establish
corpus delicti
only).
[
Footnote 5]
The City cites no decision of the Supreme Court of South
Carolina which supports its position on this issue.
State v.
Edwards, 239 S.C. 339,
123 S.E.2d
247,
rev'd sub nom. Edwards v. South Carolina,
372 U. S. 229,
from which the City quotes, did not involve this statute, and is
not otherwise persuasive.
[
Footnote 6]
We do not reach petitioners' contention that their breach of
peace convictions were void for vagueness under the doctrine of
Lanzetta v. New Jersey, 306 U. S. 451.
MR. JUSTICE BLACK, with whom MR. JUSTICE HARLAN and MR. JUSTICE
WHITE join, dissenting from the reversal of the trespass
convictions.
We have stated in our opinions in
Bouie v. City of Columbia,
post, p.
378 U. S. 363,
and
Bell v. Maryland, post, p. 318, our belief that the
mere fact that police responded to the call of a storekeeper and
arrested people who were remaining in the store over his protest
was not enough to constitute "state action" within the meaning of
the Fourteenth
Page 378 U. S. 152
Amendment. A review of the evidence in the case before us
convinces us that the officers here did nothing which would justify
a holding that they were acting for the State in any capacity
except to arrest people who violated the trespass statute by
remaining on the property of another after having been asked to
leave. Petitioners' other objections relating to vagueness of the
trespass statute and alleged absence of evidence to support the
trespass convictions are identical to those which we considered and
rejected in our opinion in
Bouie. We believe, therefore,
that the trespass convictions should stand.