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BARR ET AL. v. CITY COLUMBIA

decided: June 22, 1964.

BARR ET AL
v.
CITY OF COLUMBIA



CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA.

Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg

Author: Black

[ 378 U.S. Page 147]

 MR. JUSTICE BLACK delivered the opinion of the Court.

Like Bouie v. City of Columbia, post, p. 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*fn1 and

[ 378 U.S. Page 148]

     breach of the peace.*fn2 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, post, 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.

[ 378 U.S. Page 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,"*fn3 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. 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.*fn4 We have often pointed out that state procedural requirements which are not ...


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