# Petition for Writ of Certiorari — Dresner v. City of Tallahassee

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1963
- **Citation:** 375 U.S. 136

## Text

Giiice-Supreme Court, U.S.

Riese m@RY . *3 FILED

Wier e: COURT. U. Be NOV 13 1962

JOHN F. DAVIS, CLERK

IN THE

Supreme Court of the United States

October Term, 10625
No. = SS

ISRAEL DRESNER, AUSTIN M. WARNER, ‘
ROBERT M. BROWN, PETTY D. McKINNEY,
MARTIN FREEDMAN, ARTHUR L. HARDGE,
ROBERT J. STONE, WAYNE C. HARTMIRE,
J. W. COLLIER, JR., RALPH L. ROY,

Petitioners,
vs.
CITY OF TALLAHASSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
CIRCUIT COURT OF THE SECOND JUDICIAL
CIRCUIT, IN AND FOR LEON COUNTY,

FLORIDA. ~

TOBIAS SIMON and HOWARD W. DIXON
Attorneys for Petitioners

706 Ainsley Building

Miami 32, Fila.

INDEX
Page
RIN ee noma Roe te Kir ENE = 2

EST et ene aR : 2

Question Presented —.....____-_. : 3

Constitutional Provisions Involved ______. ens Dw 4
ates of Ge Coe COC
perenne ee Rie baer eta a WLM OU) 10
RE ERCARS LR ni tetas Re Nore AE ROR a Neat ea 15
Cee ae ree oe 16
Appendix A — Opinion of Supreme Court of
2, pendence cen Cause ne . App. 1
B — Opinion of Circuit Court of Second
Judicial Circuit, in and for Leon
County, Florida \ Seeuecaainpeecocace Sam
© — Motion to Quash and Dismiss _. App. 17

D — Assignments of Error... App. 20

CITATIONS

Page
Boynton v. Virginia,
364 U.S. 454, 5 L.Ed.2d 206, 81 S.Ct. 182
(1960) ica : 13
Burton v. Wilmington Parking Authority,
365 U.S. 715, 6 L.Ed.2d 45, 81 S.Ct. 856
ER - mt OE eae es 14

Cooper v. Aaron,
358 U.S. 1, 3 L.Ed.2d 5, 78 S.Ct. 1401 (1958) _ 12

Crandall v. Nevada,
73 U.S. 35, 18 L.Ed. 745 (1868)... 13

Edwards v. California,
314 U.S. 160, 86 L.Ed. 119, 62 S.Ct. 164

Garner v. Louisiana,
368 U.S. 157, 7 L.Ed.2d 207, 82 S.Ct. 248

Morgan v. Virginia,
328 U.S. 373, 90 L.Ed. 1817, 55 S.Ct. 1050
EOS SE SE eee, ace eR 13

Rockwell v. Morris,
211 N.Y.S.2d 25, affirmed 215 N.Y.S.2d 502
(1961), cert-den 368 U.S. 913, 7 L.Ed.2d. 131,
- I a O nennsantnammmenvanannise 12

Taylor v. Louisiana,
370 TS. 154, 8 LeEd.2d 395, 82 S.Ct. 1188 Lies 11

/

/

CITATIONS (cont.)

The Slaughter-House Cases,
83 U.S. 36, 21 L.Ed. 394 (1873)...

Thompson v. City of Louisville,
362 U.S. 199, 4 L.Ed.2d 654, 80 S.Ct. 624
eg SSE RESON ero nee Meee pceoeintis

Thornhill v. Alabama,
310 U.S. 88, 84 L.Ed. 1093, 60 S.Ct. 736
(1940)

Twining v. New Jersey,
211 U.S. 78, 53 L.Ed. 97, 29 S.Ct. 14 (1908) _

Yick Wo v. Hopkins,
118 U.S, 356, 30 L.Ed. 220, 6 S.Ct. 1064
(1886)

13

10

12

13

14

IN THE

Supreme Court of the United States

October Term, 1962

No.

ISRAEL DRESNER, AUSTIN M. WARNER,
ROBERT M. BROWN, PETTY D. McKINNEY,
MARTIN FREEDMAN, ARTHUR L. HARDGE,
ROBERT J. STONE, WAYNE C. HARTMIRE,

J. W. COLLIER, JR., RALPH L. ROY,

Petitioners,
US.
CITY OF TALLAHASSEE,
f Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
CIRCUIT COURT OF THE SECOND JUDICIAL
CIRCUIT, IN AND FOR LEON COUNTY,
FLORIDA.

Petitioners pray that a Writ of Certiorari issue to
review the judgment of the Circuit Court of the Second
Judicial Circuit, in and for Leon County, Florida, entered
on August 16, 1962.

2
OPINIONS BELOW

Upon the conviction of the Petitioners in the Mu-
nicipal Court of the City of Tallahassee, an appeal was
taken to the Supreme Court of Florida. On November 1,
1961, the Supreme Court of Florida entered its opinion
transferring the appeal to the Circuit Court of the Sec-
* ond Judicial Circuit, in and for Leon County, Florida.
That opinion was reported in 134 So.2d 228 (Fla. 1961)
(Appendix A). The Circuit Court of the Second Judicial
Circuit, in and for Leon County, Florida, affirmed the
convictions below on August 16, 1962. An opinion was
rendered but not reported. (Appendix B)

6 JURISDICTION

The judgment of affirmation of the Circuit Court of
the Second Judiciai Circuit, in and for Leon County, Flor-
ida, was pronounced on August 16, 1962. Jurisdiction of
the Supreme Court of the United States is invoked under
28 U.S.C.A. $1257 (3).

Article V. Section 6 (3), of the Constitution of the
State of Florida provides:

“Section 6. Circuit Courts.—
a

“(3) Jvrsidiction. The circuit courts shall have
. . . final appellate jurisdiction in all civil and
criminal cases arising in the county court, or be-
fore county judges’ c.urts, of all misdemeanors
tried in criminal courts of record, and of all cases
arising in municipal courts, small claims courts,
and courts of justices of the peace... ”

6
3

From the final judgment of affirmation by the Cir-
cuit Court of the Second Judicial Circuit, in and for
Leon County, Florida, after the taking of an appeal from
the Municipal Court, Petitioners have no further appel-
late remedy under the Constitution and laws of the State
of Florida.

QUESTION PRESENTED

Where a group of Negro and white citizens traveling
in interstate commerce arrive at a municipally-owned and
operated airport terminal with the publicly announced
pur of determining whether a restaurant and other
public facilities in that terminal are available to Negroes
on a racially unsegregated Basis; and where said res-
taurant is segregated for the exclusive use of white per-
sons; and where said group seeks food and drink at said
restaurant but finds said restaurant closed to them; and
where a hostile crowd, which resents the presence and the
purposes of said group of Negro and white persons, gath-
ers outside said terminal building; and where said group
of Negro and white persons are peaceable and quiet in
their words and conduct; and where police and other
City officials arrest said group for unlawful assembly,
but arrest no one in the hostile crowd; did the arrest and
subsequent convictions of the members of said group con-
stitute a denial of due process of law and equal protection
of law, an abridgement of privileges and immunities, a de-
nial of freedom of speech and assembly under the Four-
teenth Amendment to the Constitution of the United States,
a denial of rights under Article I, Section 8, Clause 3 (In-
terstate Commerce Clause) of the Constitution of the
United States, as also a violation of 72 Stat. 737, 49
U.S. .A. See. 1301 et seq (Federal Aviation Act of 1958).

4
CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution Cited:

(1) The Fourteenth Amendment to the Constitution
of the United States provides as follows:

“Section 1. All persons born or naturalized
in the United States, and subject to the jurisdic-
tion thereof, are citizens of the United States and
of the State wherein they reside. No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizenship of the
United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.”

(2) The Interstate Commerce Clause of the Consti-
tution of the United States ( Article I, Section 8, Clause 3}
provides as follows:

“Section 8. The Congress shall have power
ae

“To regulate commerce with foreign Nations,
and among the several States, and with the
indian Tribes; ....”

(3) Article IV, Section 2, of the Constitution of the
United States provides as follows:
“Section 2. The citizens of each State shall
be entitled to all privileges and immunities of
citizens in the several States.

Florida Constitution Cited:

Article ¥, Section 6 (3), of the Constitution of the
State of Florida as above set forth.

Statutes Cited:

(1) FS. 870.04 (Laws of Fla. 1961, c. 61-237) pro-
vides as follows:

“870.04. Magistrate to disperse riotous as-
sembly.

“If any number of persons, whether armed or
not, are unlawfully, riotously or tumultuously
assembled in any county, city or municipality,
the sheriff or his deputies, or any constable or
justice of the peace of the county, or the mayor,
or any commissioner, councilman, alderman or
police officer of tiie said city or municipality, or
any officer or member of the Florida highway
patrol, shall go among the persons so /assembled,
or as near to them as may be with safety, and
shall in the name of the State command all the
persons so assembled immediately and peaceably
to disperse; and if such persons do not thereupon
immediately and peaceably disperse, said officers
shall command the assistance of all persons in
seizing, arresting and securing such persons in
custody; and if any person present being so
commanded to aid and assist in seizing and se-
curing such rioter or persons so unlawfully as-
sembled, or in suppressing such riot or unlawful
assembly, refuses or neglects to obey such com-

>

‘6

mand, or. when required by such officers to de-
part from the place, refuses and neglects to do
sc, he shall be deemed one of the rioters or per-
sons unlawfully assembled, and may be prose-
cuted and punished accordingly. As amended
Laws 1961, c. 61-223, §1; Laws 1961, c. 61-237,
1

(2) 72 Stat. 737, 49 U.S.C.A. Sec. 1301 is set forth
below.

STATEMENT OF THE CASE

A. Petitioners, comprising a party of Negro and
white clergymen, had set forth together from Washing-
ton, D. C., to cities in several southern States for the
purpose of determining whether certain interstate trans-
portation facilities were available on an integrated basis
for persons of the colored race. Petitioners arrived at the
Greyhound Bus terminal in Tallahassee on June 15, 1961,
and were met by hostile persons who resented their pres-
ence and the purpose of their trip. At this time, Petitioners
were protected by the local police from any violence. Pe-
titioners procured airline tickets for their return trip
to their final destination at New York, New York, and
Newark, New Jersey, and then left the bus terminal for
the City-owned and operated Tallahassee Municipal Air-
port preparatory to embarking upon their return flight,
and they arrived at the airport in the early afternoon
on June 15, 1961.

Upon their arrival, Petitioners sought to be served
food and drink at the restaurant located in the terminal,
the same being an integral part of the terminal facilities

7

designed primarily for service to passengers in interstate
transportation. The Petitioners discovered, however, that
this restaurant was closed to circumvent the necessity for
service on a non-segregated basis. Petitioners decided to
wait until the restaurant re-opened and in connection
therewith they cancelled their reservations for their re-
turn trip. They waited in the terminal building until
approximately 11:00 p.m. that evening and thereafter
returned to the airport on the morning of June 16, 1961.
The restaurant was still closed. Petitioners thereupon
again cancelled their reservations and made new reserva-
tions for their return flight for later that day. While
Petitioners were seated in the termina! building await-
ing the operfing of the restaurant, the City Attorney for
the City of Tallahassee approached the Petitioners and
demanded that they disperse. Petitioners declined to
disperse, and they were thereupon arrested by the police
and taken into custody.

The Petitioners’ conduct was peaceable at the time
of their arrival in Tallahassee, during the time they were
at the bus terminal, while they were at the airport ter-
minal, and at the time of their arrest; and at all times
material to the matter herein they were quiet, dignified,
and polite in their words and acts.

The Petitioners were charged as follows:

“BEFORE ME, JOHN A. RUDD, Judge of
the Municipal Court of the City of Tallahassee,
Florida, personally appeared JAMES MESSER,
JR., and EDW. J. HILL, who, being duly sworn,
say that on, to-wit: the 16th day of June, 1961,
upon property owned and operated by the City of

8

Tallahassee, Florida, and located in Leon Countv,
Florida, namely, the Tallahassee Municipal Air-
port, ISRAEL DRESNER, AUSTIN M. WAR-
NER, ROBERT M. BROWN, PETTY D. Mc-
KINNEY, MARTIN FREEDMAN, ARTHUR
L. HARDGE,- ROBERT J. STONE, WAYNE
C. HARTMIRE, J. W. COLLIER, JR., RALPH
L. ROY, CHAS. A. HUNTER, JOHN J. PO-
LAND, JR., and PRISCILLA G. STEPHENS:
COUNT I, Did then and there unlawfully as-
semble in that they did, and they being more
than three (3) persons, meet together to commit
a breach of the peace, acting together and con-
certediy to occupy and to continuously occupy
certain chairs and seating facilities in the Talla-
hassee Municipal Airport, making and cancelling
group airline reservations on the two {2) operat-
ing airline schedules departing Tallahassee on
the said date, and on June 15, 1961, and meeting
together in concert attendant with circumstances
calculated to excite alarm, éndanger the. public
peace and excite fear, and in such nature as to
inspire well-grounded fear in persons of reason-
able courage, of riot, or other breaches of public
peace, and while so unlawfully assembled a police
officer of said City did go among these persons
so assembled, and making himself known to them
and each of them, did, in the name of the State
and City, command those so unlawfully assembled
to immediately and peaceably disperse, and they
and each of them did then and there refuse
and/or neglect to obey such command when
given, contrary to the laws and ordinances of said

<

9
City in such cases made and provided, and
against the peace and dignity of the said City
of Tallahassee, Florida.”

Petitioners moved to quash the aforesaid charges, but

. the said motions were denied. Fojlowing the trial, the Mu-

nicipal Court of the City of Tallahassee found the Peti-
tioners guilty of unlawful assembly as charged and or-
dered them to pay fines of $500.00 eech or, alternatively,
to serve sixty ‘50) days each in the City Jail. Petitioners
thereupon filed an appeal in the Supreme Court of Florida.
The Supreme Court of Fiorida ruled that it lacked juris-
diction to entertain the appeal and transferred the appeal
to the Circuit Court of the Second Judicial Circuit, in and
for Leon County, Florida, said court having final appellate
jurisdiction on all appeals from Municipal Courts in the
State of Florida. The Circuit Court subsequently entered
its order affirming the judgment of conviction of the Mu-
nicipal Court.

B. Federai Questions Raised Below in the Trial
Court and Before the Circuit Court of the Second Judicial
Circuit, in and for Leon County, Florida, having Appel-
late Jurisdiction.

The Federal questions were first raised prior to ar-
raignment on the day of the trial when the Petitioners
moved to quash and dismiss the charges on the grounds
that they were being deprived of their rights as guaran-
teed by the First and Fourteenth Amendments to the Con-
stitution of the United States, and that Chapter 61-237
(F.S. 870.04) was unconsitutional under the said provi-
sions of the United States Constitution (Appendix C).

Ca

10

Subsequent to the convictions in the Municipal Court,
the Petitioners appealed to the Circuit Court of the Sec-
ond Judicial Circuit, in and for Leon County, Florida, In
their Assignments of Error, they again raised their de-
fenses of denial of rights under the First and Fourteenth
Amendments to the Constitution of the United States (Ap-
pendix D).

ARGUMENT
I.

Petitioners submit that their arrests and convictions
violate the guarantees of due process of law contained in
the Fourteenth Amendment to the Federal Constitution
for the reason that there was no evidence whatsvever sup-
porting a conviction for unlawful assembly.

In Thompson v. City of Louisville, 362 U.S. 199, 4
L.Ed.2d 654, 80 S.Ct. 624 (1960), the petitioner had been
charged with loitering and with disorderly conduct arising
out of his allegedly being ‘“‘argumentative” with the police
over his arrest. The United States Supreme Court reviewed
the entire record and found that there was no evidence
to convict the petitioner. The Court stated categorically
that it is a “violation of due process to convict and punish
a man without evidence of his guilt” (4 L.Ed.2d 654, 659).
As to the charge of disorderly conduct, the Court noted
that: y

“There is no testimony that petitioner raised
his voice, used offensive language, resisted the
officers or engaged in any conduct of any kind
likely in any way to adversely affect the good

11

order and tranquility of the City of Louisville.”
(4 L.Ed.2d 654, 659)

This principle was re-affirmed by the United States
Supreme Court in Garner v. Louisiana, 368 U.S. 157, 7 L.
Ed.2d 997, 82 S.Ct. 248 (1961), wherein the Supreme
Court set aside convictions of “sit-in’’ demonstrators who
had been charged with unlawful assembly and which con-
victions were not based upon evidence to support the find-
ings of any violations of the State’s unlawful assembly
statute.

In Taylor v. Louisiana, 370 U.S. 154, 8 L.Ed.2d 395,
82 S.Ct. 1188, the Supreme Court of the United States
held that a State conviction for disturbing the peace was
based on constitutionally insufficient evidence where proof
showed only the entiy of a Negro into a white waiting
room at an interstate transportation facility.

Petitioners submit that their arrests and convictions
violate their freedom of speech and assembly as guaran-
teed under the due process clause of the Fourteenth
Amendment to the United States Constitution. The an-
nounced purpose of Petitioners’ trip was to determine
whether restaurant and other faciljies in interstate trans-
portation terminals were available to Negroes on an un-
segregated basis, and they peacefully assembled and peace-
fully demonstrated to communicate their opposition to the
admitted practice of racial segregation.

Petitioners’ activities are entitled to the same protec-
_tion as that given to peaceful picketing, and their conduct

12

is protected by,the principles announced by the United
States Supreme Court in Thornhill v. Alabama, 310 .U.S.
88, 84 L.Ed. 1093, 60 S.Ct. 736 41940).

The conditions obtaining in’ the case at Bar have a
striking analogue in the case of Cooper v. Aaron, 358 U.S.
1, 3 L.Ed.2d 5, 78 S.Ct. 1401 (1958), where the School
Board of Little Rock, Arkansas, petitioned the Federal!
courts for delay in the program of school desegregation
at that city’s Central High School because of community
hostility and violence towards Negroes. The Supreme
Court of the United States refused to suspend the desegre-
gation order and held that such violence did not afford a
basis for denying the Negro students their civil rights.
The Court stated that:

“The constitutional rights of respondents are
not to be sacrificed or yielded to the violence and
disorder which have followed upon the actions of
the Governor and Legislature (of Arkansas) .”

In Rockwell v. Morris, 211 N.Y.S.2d 25, affirmed 215
N.Y.S.2d 502 (1961), cert den 368 U.S. 913, 7 L.Ed.2d.
131, 82 S.Ct. 194 (1961), the appellant, a self-styled Amer-
ican Nazi, ha dapplied for a permit to use a public park in
New York City to make a public political speech and had
been denied the permit on the ground that if he spoke it
was “inevitable that public disorder and rioting will result”
(211 N.Y.S.2d 25, 28). The New York Court, however, held
that the denial of the permit was an unconstitutional prior
restraint on freedom of speech. The Court was presented
with a community situation much like that in the case at
Bar. New York City, with two and one-half million Jews,

13

was obviously a hostile ambiance for a neo-nazi propagan-
dist. Tallahassee, a city practicing apartheid in many re-
spects, has been anything but hospitable to those who have
urged a change in its attitudes in its race relations.

III.

The arrests and convictions of the Petitioners consti-
tute an undue burden on passengers in interstate commerce
in violation of the Interstate Commerce Clause (| Article I,
Section 8, Clause 3) of the United States Constitution un-
der the principles announced by the Supreme Court of the
United States in Morgan v. Virginia, 328 U.S. 373, 90 L.
Ed. 1317, 55 S.Ct. 1050 (1946); Edwards v. California,
314 U.S. 160, 86 L.Ed. 119, 62 S.Ct. 164 (1941) ; Boynton
v. Virginia, 364 U.S. 454, 5 L.Ed.2d 206, 81S.Ct. 182
( 1960.)

Iv.

The aforesaid arrests and convictions deprived Peti-
tioners of one of the basic privileges and immunities of
Federal citizenship, namely, the right to travel throughout
the nation free of unreasonable restraint imposed by the
States and unfettered by unlawful arrests. This right of
national citizenship, guaranteed by Article IV, Section 2,
of the United States Constitution, was announced by the
Supreme Court long ago in Crandall v. Nevada, 73 U.S.
35, 18 L.Ed. 745 (1868), and was re-affirmed in The
Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394 (3873);
Twining v. New Jersey, 211 U.S. 78, 53 L.Ed. 97, 29 S.Ct.
14 (1908).

14
Zs v.

The arrests and convictions constitute state denial of
the equal protection of the laws guaranteed by the Four-
teenth Amendment to the United States Constitution?be-
cause the police and city officials arrested the Petitioners
who were peacefully demonstrating against unlawful racial
segregation ; instead of arresting a single one of the violent
demonstrators outside the terminal; and this discrimi-
natorily applied c. 61-227, Acts of Florida 1961 (F-.S.
870.04) in contravention of the principles announced by ©
the United States Supreme Court in Yick Wo v. Hopkins,
118 U.S. 356, 30 L.Ed. 220, 6 S.Ct. 1064 (1886) and in
Burton v. Wilmington Parking Authority, 365 U.S. 715,
6 L.Ed.2d 45, 81 S.Ct. 856 (1961). a

“(j

The Petitioners’ arrests and convictions for unlawful
assembly, while interstdte passengers awaiting service
integrated service at the food counter which had previously
been given to other interstate passengers only on a segre-
gated basis, deprived them of equal protection of the laws
as guaranteed by the Fourteenth Amendment to the United
States Constitution. Cooper v. Aaron, supra, held that the
petitioner’s constitutional rights could not be annihilated
by muricipal or State officials. In Burton v. Wilmington
Parking Authority, 365 U.S. 715, 6 L.Ed.2d 45, 81 S.Ct.
856 (1961), the Supreme Court of the United States held
that a restaurant owned by a municipality but leased to
and operated by private persons cannot discriminate in
the service of food to the public on the basis of color.

VI.

The arrests and convictions are invalid for the rea-

15

son that they are in conflict with the provisions of the
Federal Aviation Act of 1958 (72 Stat. 737, 49 U.S.C.A.
Sec. 1301 et. seq.), and in particular Section 404 of said
Act (72 Stat. 760, 49 U.S.C.A. Sec. 1374) which provides,
in pertinent part, that: ;

“No air carrier or foreign air ‘carrier shalf

" make, give, or cause any undue or unreasonable
preference or advantage to any particular persong;
port, locality, or description of-traffic in air
transportation in any respect whatsoever or Sub-
ject any particular person, port, locality, or de---" +.
scription of traffic in air transportation to °
unjust discrimination or any undue or u
sonable prejudice or disatlvantage in any“ resect
whatsoever.”

CONCLUSION

For the foregoing reasons, this Petition for Writ of |
Certiorari should be granted.

Respectfully submitted,
TOBIAS SIMON -and HOWARD W. DIXON
Attorneys for Petitioners

706 Ainsley Building

Miami 32, Fla.

By a

16

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing
Petition for Writ of Certiorari has, pursuant ~o Rule
33 (1) of the Revised Rules of The Supreme Court of
The United States, been servetl by mail upon EDWARD
J. HILL, Attorney for Respondent, 216 East Jefferson
Street, Tallahassee, Florida, by air mail this — __. day
of November, 1962. ea

APPENDIX A

(TITLE OMITTED]
OPINION OF THE SUPREME COURT OF FLORIDA
Filed November 1, 1961.

An Appeal from the Municipal, Court, in and for the
City of Tallahassee, John A. Rudd, Judge.

THORNAL, J.

We have for consideration a motion to dismiss a di-
rect appeal from the Municipal Court of the City of Talla-
hassee.

We must decide whether this Court has jurisdiction
to consider the appeal.

The City charged that the appellants did “unlawfully
assemble . .. contrary to the laws and ordinances of.said
City in such cases made and provided, and against the
peace and dignity of the said City of Tallahassee, Flor-
ida.” A trial in the municipal court culminated in a find-
ing of guilt and a sentence to pay a fine wéth an alterna-
tive term in the city jail. At the outset of the trial the
appellants moved to dismiss the complaint with the con-
tention that Section 870.04, Florida Statutes, as amended
by Chapter 61-237, Laws of Florida, 1961, was being in-
validly applied against them. The City Judge announced
that “the statute is not unconstitutional on its face.”
Coming here directly from the municipal court appellants
contend that the trial judge passed directly on the validity
of a state statute and that we, therefore, have jurisdic-
tion pursuant to Section 4, Article V, Florida Constitu-
tion, The appellee’s motion to dismiss questions the juris-

App. 2

diétion of this Court to determine the matter on a direct
appeal. This motion has been argued and is now here
for disposition.

The appellants were charged with the violation of the
municipal ordinances of the City of Tallahassee. Nowhere
in the complaint were they charged with a violation of a
state statute. A reference to Section 870.04, supra, as
‘amended, will reveal that the statute condemns a riotous
assembly and provides a penalty under Section 870.02,
Florida Statutes. The offense described in the statute is
a misdemeanor triable in the state courts. The statute
does not even impliedly define a municipal offense. This
distinction is important in determining our jurisdiction.
It is perfectly clear that the municipal judge was not con-
fronted by the necessity of passing directly on the validity
of a state statute. The most that could be said would be
that he was called upon to pass upon the validity of a mu-
nicipal ordinance. In actuality, the record indicates that
he was merely revuested to decide that “the statute” was
invalid “as applied to the appellants.” The real contention
asserted before the trial judge questioned the application
of the statute, rather than its fundamental validity. .

This Court derives its appellate jurisdiction from
Article V, Florida Constitution. By Section 4/2), Article
V, supra, appeals from trial courts may be taken directly
to this Court from certain specified types of judgments.
Among these are “final judgments or decrees directly
passing upon the validity of/a state statute .. . or con-
struing a controlling provision of the Florida or federal
constitution ...” We must look te this constitutional
provision as the source of our furisdiction to entertain
the instant appeal.

App. 3

It is clear that the trial judge, at most, was called
upon to pass upon the validity of a municipal ordinance.
This is so because the appellants were charged with a
violation of the municipal ordinances, rather than with a
violation of a state statute. We have long ago held under
Section 4(2), Article V, supra, that this Court did not
have the power to entertain a direct appeal from a judg-
ment of a trial court which merely passes upon the
validity of a municipal ordinance. For purposes of de-
termining the jurisdiction of this Court, a municipal ordi-
nance cannot be classified as a “state statute.” Arm-
strong et al v. City of Tampa, Fla. 1958, 106 So. 2d 407.
While conceivably a municipal court could be considered
as a “trial court! from which a direct appeal could come
here if in some peculiar situation the municipal court
passed directly upon the validity of a state statute, such
is not and could not have been the instant situation. Boyd
v. County of Dade, Fla. 1960, 123 So. 2d 323. Moreover,
even though the appellants attempted to question the
validity of the application of the cited statute, they did
not in any fashion assault the fundamental validity of
the statute itself. Jurisdiction comes to us by direct ap-
peal when the validity of the statute is assaulted and
passed upon. When the problem involves the.validity of
the application of an otherwise valid statute, a direct
appeal here is not available unless there be a final judg-
ment or decree which construes a controlling provision
of the State or federal constitutions. Stein v. Darby, et
al., opinion filed October 11, 1961. In the instant case there
was certainly no such construction. The final judgment
of the municipal judge merely contained a finding of
guilt and the assessment of the fine. Nowhere in the
record is there a construction of the constitution. Arm-
strong v. City of Tampa, supra.

an

App. 4

Although ordinarily motions of the type involved
here would be disposed of without opinion, we deemed
it appropriate to elaborate on our reasons for the future
guidance of the Bar.

Finding as we do that this Court is without jurisdic
tion to hear the instant appeals, the motion to dismiss is
well-taken. However, we will treat the motion as a motion
to transfer an appeal improvidently lodged in this Court.
Rule 2.la (5)(d), Florida Appellate Rules. Under Section
6, Article V, Florida Constitution, the circuit courts have
jurisdiction to hear appeals. from municipal courts when
they involve questions such as those presented here. It is,
therefore, ordered that within five days from the filing
of this opinion all papers, records, briefs and other docu-
ments, including the notice of appeal, be and the same are
hereby transferred to the Circuit Court, Second Judicial
Circuit for appropriate disposition. Our opinion is not
to be construed as in any fashion pass ng upon the merits
of the appeal or the sufficiency of the record, including
the notice of appeal. These are matters to be disposed of
by the circuit court in the exercise of its appellate juris-
diction.

It is so ordered.

ROBERTS, C. J.. HOBSON, DREW and O’CONNELL,
JJ., concur

App. 5
APPENDIX B
[TITLE OMITTED]

ORDER AFFIRMING JUDGMENTS OF THE
CIRCUIT COURT OF LEON COUNTY, FLORIDA

This is an appeal from convictions in the Municipal
Court of the City of Tallahassee, Florida of the ten appel-
lants named in the caption who were charged with unlaw-
ful assembly. A fine was assessed against each of them
with an alternate jail sentence.

The formal charge is in a single count naming the
ten appellants and three others* as defendants and alleges
an unlawful assembly on June 16, 1961 “in that, they be-
ing more than three (3) persons, met together to commit
a breach of the peace, acting together and concertedly to
occupy and continuously occupy certain chairs and seating
facilities in the Tallahassee Municipal Airport, making
and cancelling group airline reservations on the two (2)
operating airline schedules departing Tallahassee on said
date, and on June 15, 1961, and meeting together in con-
cert attendant with circumstances calculated to excite
alarm, endanger the public peace and excite fear, and in
such nature as to inspire well-grounded fear in persons of
reasonable courage, of riot, or other breaches of public
peace, and while so unlawfully assembled” were com-
manded by a police officer of the city, after identifying
himself: as such, to immediately and peaceably disperse,
and they refused or neglected to do so.

*Of these three one was acquitted and the other two were granted
a nolle prosequi.

App. 6

The appellants contend that the judgments pursuant
to convictions violate their rights guaranteed by the Flor-
ida and United States Constitutions in that they have
been denied the equal protection of the laws and have been
deprived of liberty or property without due process of law.
They contend that the state statute, Chap. 61-237, Laws
of 1961, (F. S. 870.04), (which, by reference adoption in
a municipal ordinance,* is made an ordinance of the City
of Tallahassee) is unconstitutional and void, either on its
face or as it has been applied to the appellants in this case.

The pertinent portions of the statute, adopted as an
ordinance, are: e

“If any number of persons .. . are unlawfully,
riotously or tumultuously assembled in any...
city or municipality ... any ... police officer of
said city or municipality . . . shall go among the
persons so assembled . . . and shall, in the name
of the state command all the persons so assem-
bled immediately and peaceably to disperse; and
if such persons do not thereupon immediately
and peaceably disperse, said [officer] shall com-
mand the assistance of all persons in seizing, ar-
resting and securing such persons in custody; and
if any person present ... when required by such
[officer] to depart from the place, refuses or neg-
lects to do so, he shall be deemed one of . . . the
persons unlawfully assembled and may be prose-
cuted and punished accordingly.”

‘Sec. 23-38, Tallahassee Code, provides that it shall be unlawful
for any person to commit any act which is or shall be recognized by
the laws of the state as a misdemeanor. The penalty is a maximum
fine of $500.00 or 60 days imprisonment or both.

App. 7

The facts.in the case are not in dispute and squarely
present the question as to whether or not the conduct of
the appellants was an exercise by them of rights they hold
under state and federal constitutional provisions, which
would preclude their prosecution, conviction and sentence
for unlawful assembly in the trial court.

The appellants are clergymen, two being rabbis and
the others being ordained ministers of several Protestant
denominations. They are residents of New Jersey, New
York, Massachusetts or Connecticut. Some of them are
of the white race and some are negroes. About June 12
or 13, 1961 they, together with eight other clergymen
from the same general area, departed from Washing-
ton, D. C. by interstate common carrier bus for a so-
called “Freedom Ride” into Virginia, the Carolinas,
Georgia, and Florida. The bus ride terminated in Talla-
hassee June 15, 1961. The “Freedom Riders” left their
buses at the Greyhound bus terminal there and went into
the terminal lunch room to obtain food which was served
them.

This trip was sponsored and at least partially fi-
nanced by an organization known as CORE (Congress
on Racial Equality) which has been aggressive in pro-
moting racial integration and desegration. The trip was
well publicized, having been given wide coverage in all
news media including radio and television. The time and
place of arrival in Tallahassee was heralded and well
known.

The purposes of the “Freedom Ride”, as stated by
appellant Collier, who was the spokesman for the group,
were two-fold: (1) To ascertain whether or not there were

-

App. 8

facilities available on an integrated basis to interstate
passengers in waiting rooms, in rest rooms, in eating
facilities in the terminals through which they would pass;
and (2) To bear witness as ministers, rabbis and clergy-
men to the struggle to obtain those rights “guaranteed
us by the Constitution.”

Shortly priur to the time the buses bearing the “Free-
dom Riders” were scheduled to arrive at about noon on
June 15, there had gathered in the vicinity of the bus
station a number of persons and groups of persons. Law
enforcement officers, including city police, had been dis-
patched to the area to prevent any disturbance. It was
suspected that resentment against the “Freedom Riders”
might result in some attempts at violence toward them or
precipitate other disorders. When the buses arrived, law
enforcement personnel moved in and gave protection to
the passengers as they left the bus and entered the lunch
room in the terminal. Apparently they were served in
the lunch room under circumstances and policies satis-
factory to them.

In approximately an hour after arrival at the bus
terminal the eighteen “Freedom Riders” proceeded to the
Tallahassee Municipal Airport ostensibly for the purpose
of boarding a 3:25 P. M. Eastern Air Lines plane for
passage to Washington, Newark, or New York. They
were transported to the airport in private cars presumably
furnished by local sympathizers with their objectives.

Upon arrival at the airport they found that the res-
taurant there had been closed. When the time approached
for arrival of the 3:25 plane the ten appellants cancelled
the reservation they had previously made for the flight.

App. 9

The other eight boarded the plane when it arrived and
departed for their destinations in the East.

At that time, the airport arrangement provided sep-
arate waiting rooms, or areas, for white and negro; also
separate rest rooms; and separate areas for serving food,
the white area being a glassed-in place and the negro
consisting of a counter with several stools. However, as
mentioned before, the eating service had been discontinued
by the closing of the restaurant facilities. A sandwich
vending machine was in the lobby, but the prices on same
hed been marked up from previous prices.

The appellants stayed together in a more or less
compact group in the lobby area most of the time and
no attempt was made to enforce separation of the races in
the waiting room. Rest rooms were used by them without
observing the designation of the segregated facilities.

After cancelling their reservations for the 3:25 P. M.
flight they sought and ultimately obtained reservations
for a flight the next morning at 8:25 on an E. A. L. plane.
They remained in the airport until about 11:00 P. M.
that evening for the purpose of observing if the restaurant

would open and service be granted to them. The restaurant
remained closed.

Law enforcement officers, including city police, were
detailed to keep order. The activities and objectives of the
appellants had been the subject of news reporting and
groups of people were seen to be gathering or attempting
to gather in the vicinity of the airport. There were
critical and hostile comments made about the appellants.
The police turned away some of those gathering when it

: App. 10

was apparent such persons had no airport business or in-
terest. Persons were even screened at the entrance and
turned away by officers if they had no business to trans-
act at the airport.

The chief of police advised the appellants that the air-
port terminal would close for the night at approximately
11:45 P. M. and a spokesman for appellants requested
protection as they moved from the airport into the city
and also on the return to the airpert the next morning.
Such protection by escort of law enfercement officers was
provided. r

The appellants thus left the airport at about 11:00
P. M. on the 15th to return the next morning prior to the
scheduled departure at 8:25 A. M. of the plane on which
they had cbtained reservations. They were given escort
security protection on both the occasions of leaving and
returning to the terminal.

The restaurant was also clesod on the morning of
June 16. At 8:15 A. M! all ten of the appellants cancelled
their reservations for the 8:25 flight and remained in
the waiting room after that flight had departed. At 8:20
A. M. they sought, and ultimately obtained, reservations
on a National Airlines flight scheduled to depart at 1:47
P. M. that day, but cancelled just prior to noon.

During these periods there continued to be move-
ments and gathering of groups of people in cars and there
was a hostility and épen resentment against the conduct
and attitudes of the appellants. A considerable number
of police, sheriff's deputies and highway patrolmen had
been detailed to prevent disorder. City, county and state

App. 11

officials, including the Governor, were apprehensive and
moved to provide necessary law enforcement personnel to
preserve order.

At about 12:15 P. M., Mr. James Messer, Jr., city
attorney of Tallahassee and a special police officer of the
city, after conferring with the mayor and chief of police
of the city, approached the appellants who were together
and inquired if there was a leader of the group. Appellant
Collier arose and identified himself and assumed to act
as spokesman. Mr. Messer identified himself and his
official positions, exhibiting his police badge. Others in
the group gathered around Mr. Messer and Rev. Collier
and Mr. Messer read to them a proclamation. He stated
that the assembly of the appeilants at the Municipal Air-
port of Tallahassee will tend to create a disturbance or
incite a riot or disorderly conduct within the City of Talla-
hassee at its Municipal Airport over which the city had
jurisdiction. He mentioned incidents of the previous night
and fears of more unrest. He then commanded them in
the name of the state and city to immediately and peace-
ably disperse, and -xplained that such meant from the
airport property. He then added that failure to so dis-
perse would result in arrest for unlawful assembly. Collier
asserted that they were interstate passengers, to which
Messer replied that he did not consider them to be bona
fide passengers in view of their reservation cancellations.

Severa! local sympathizers with the appellants dis-
persed, but appellants failed to do so. After about 11%
minutes, Mr. Messer turnedego the Chief of Police and
remarked “Chief, you can carry out your orders.” The
appellants were arrested and taken into custody.

The appellants take the view that the segregation

App. 12

practices with regard to waiting rooms, rest room facil-
ities, and restaurant or eating facilities at the airport
were violative of constitutional guarantees of equal pro-
tection of the law. They would also inject ‘into the case
the ingtallation of sandwich and cigarette machines, at or
just prior to their arrival, which inflated the prices of
merchandise vended to double what it had been. The
closing of the restaurant on the day of their arrival and
its opening shortly after their departure is viewed as an
¢mportant factor.

These facts are, in the view of this Court, not at all
significant in the legal problems involved in the charge
against the appellants and the disposition of such charge
by the trial court.

The municipality of Tallahassee operates in a pro-
prietary capacity and in a governmental capacity. Among
its proprietary functions is the ownership and operation
of a municipal airport and supervision over the conces-
sions there. Assuming, but not deciding, that its policies
of segregation of the races.in its facilities are unlawful
and did constitute a violation of some duty to the ap-
pellants if enforced against*therh, and further assuming,
without deciding, that the closing of the restaurant under
the circumstances violated some duty to them, do such cir-
cumstances justify a concerted protest demonstration by
appellants of their views and convictions over a protracted
period of time during which tensions and tempers rise
in the community which threaten to erupt into disorder
and thus render the city, in its governmental capacity,
powerless to terminate the demonstration in the exercise
of its police power?

App. 13

_Stated another way, may not a lawful assembly for
the purpose of protesting and demonstrating epposition
to a course of policy practiced by the municipality become
an unlawfully assembly when pursued to unreasonable
lengths imposing unreasonable burdens on others, after the
lawful objectives of the demonstration had been fairly
accomplished? — ‘

It is fundamental that our constitutions accord to
the citizen of the Unite States the right of freedom of
speech and of assembly and to peaceably petition for a
redress of grievances, Such freedoms are jealously guarded
and when exercised in good faith and in good order may
not be lawfully interfered with by governmental action.
However, it is not a license to take into one’s own hands
the enforcement of law or by excessive harassment, effect
coercion and acceptance of one’s convictions and interpre-
tations of legal rights by governmental entities whose
policies are in conflict. Such procedures wholly ignore
the very machinery provided by the constitutions and
laws of the nation and state for the declaring, securing
and enforcement of constitutional and other legal rights.
It is the courts, both state and federal, to whom resort
is readijy available for citizens to seek recognition and
enforcement of legal rights and immunities. That such
courts may not move as swiftly as the individual would
wish does not authorize pursuit of personal means which
unnecessarily create or threaten public disturbance or
disorder, or which substantially interfere with normal,
orderly functions of a public facility.

Such a procedure is a form of anarchy which, if it
becomes an accepted practice, can have only the effect
of seriously weakening orderly government.

App. 14
/

The appellants, prior to the reading of the riot act
to them, had achieved their announced objectives. They
had observed both at the bus station and the airport the
integration or lack of it of the waiting room, rest room
and restaurant facilities. They had very effectively borne
witness as clergymen and otherwise of their sympathy
with the struggle to obtain desegregation of the various
facilities of interstate travel. \

To aecommodate and facilitate those legitimate ob-
jectives the law enforcement agencies of city, county and
state had given protection against potential violence or
other disorder from groups or individuals who resented
the activities of the appellants. This protection was af-
forded at the bus station, at the airport on the afternoon
of June 15, on the evening of June 15 when the appel-
lants left the airport to come into town and on the fol-
lowing morning when they returned to the airport pur-
portedly to take an early plane. However, instead of
using the reservations they had obtained they made a
cancellation. This was thrice they had made last minute
cancellations of reservations for the sole reason that they
wished to eat in the restaurant, which was closed. In the
meantime their conduct and persistence was arousing in-
creased resentment and anger in the community with
threats of violence and disorder toward the appellants. .

pattern. They would make reservations for travel, wait
in the lobby until just before the plane they were sched-
uled to take arrived’ and then cancel, make reservations
on a later flight and then again cancel at the last minute,
at all times remaining in the airport but never taking a
plane. The effect is obvious. The seats and other facilities

Obviously, the conduct of appellants had revealed a
i l,

App. 15

are occupied by them and their use denied to those who
actually .wished to travel. The use of rest rooms and
wash rooms by them partakes more of lodging than a
comfort feature for those whose sole purpose is some air-
port business. The reservation of space and last minute
cancellation prevented the use of that space of the flights
involved, resulting in loss and inconvenience to the air
line involved and probable denial to other would-be travel-
ers of the use of that space. The sole purpose of such a
course of harassment was to goad the municipality and
its restaurant lessee to open the restaurant and gratify
the appellants’ wishes that they be served in the style and
manner they deemed to be their right.

Controversies between citizens and governmental units
are not unique. In nearly every instance there is a con-
flict in what the citizen contends he has a right to claim
and the governmental entity which would deny the validity
of such claim. The citizen may freely express his views
and seek to cultivate converts to them with a view of
bringing moral or political pressures on the officers of
the public body to accord his demands. However, such
means must be exercised in a manner that is reasonable
and not harmful to the rights of others or the peace and
good order of the community. Especially is this true
when the controversy is one of public interest in which
there are strong and emotional feelings on the part of a
substantial number of persons in the community.

The courts, both state and federal, are open to re-
solve controversies on constitutional issues in duly in-
stituted and processed civil actions. Indeed, the very issue
in the demonstrations of the appellants was subsequently
presented to and adjudicated by the United States Dis-

App. 16

trict Court for the Northern District of Florida. Brooks,
et al v. Tallahassee, 202 Fed. Supp. 56. When citizens
press their demonstrations in behalf of 4 cause (however
worthy they deem their objectives to be) beyond the bounds
of fully and effectively delivering their message and reach
the stage that they materially and harmfully interfere
with the orderly business and lawful activities of others,
who are acting in public or private capacities, then the
conduct is disorderly and assembly for carrying it out
is unlawful. Such was the case here.

The judgments appealed from are hereby affirmed.
Affirmed.

BEN C. WILLIS
Circuit Judge

App. 17

)

APPENDIX C

MOTION TO QUASH AND DISMISS PRIOR TO AR-
RAIGNMENT BEFORE THE MUNICIPAL COURT IN
AND FOR THE CITY OF TALLAHASSEE, a Municipal
corporation of Florida. —

MR. SIMON: At this time, if your Honor please,
the defense will move to quash and to dismiss the charges
against these defendants on the following grounds:

First, that the charges of the City of Tallahassee do
not state an offense against the defendants under the ordi-
nances of the City of Tallahassee or the statutes of the
State of Florida.

: Second, the alleged offenses occurred beyond the city
limits of the City of Tallahassee and this Court is without
jurisdiction to try these offunses.

Third, the statute pursuant to which the defendants
were arrested and with which the defendants are charged
and which they are charged with having violated, namely
Florida Statutes, Chapter 61-237, is invalid and is un-
constitutional, constitutes a denial of rights under the
Declaration of Rights of the Florida Constitution and con-
stitutes a denial of rights under the Federal Constitution
to the United States and the First and Fourteenth Amend-
ments thereto and as a consequence these arrests were un-
lawful and the charges based thereon are without founda-
tion.

Next, the defendants which constitute a party of
Negroes and whites who were located in a municipally-

App. 18

owned airport in the City of Tallahassee and were attempt-
ing to use the public facilities of this airport on a racially
unsegregated basis acted at all times in a peaceful and
dignified manner; their arrests constitute a denial to the
defendants of the equal protection of the law under the
Fourteenth Amendment to the Federal Constitution and
a denial of due process of law, a denial of privileges and
immunities of State citizenship guaranteed thereby; a de-
nial of the privileges and immunities of Federal citizenship
since they were at all times on and in an instrumentality
of the municipality of Tallahassee and were attempting
to use the facilities thereof, which facilities are required
by Federal law to be made available to all citizens with-
out regard to their race or color.

Next the defendants at the time of the arrests were
passengers in interstate commerce awaiting departure at
the \Municipal Airport of Tallahassee of their plane from
Tallahassee to points beyond the State of Florida and
their arrests constitute a violation of their rights of un-
fettered travel free of racial discrimination under the
Interstate Commerce Clause of the Federal Constitution,
namely Article I, Section 8, Clause 3, and a violation of
their privileges and immunities of Federal citizenship, a
violation of the Federal Aviation laws and a violation of
the Federai Aviation Act of 1958 and, in particular, Sec-
tion 404 of said act, same being 72 Statute 760, 49 U.S.
Code, Section 1374-B.

The arresis of the defendants and their prosecution
constitute a violation of their liberty of contract as guar-
anteed by the Fourteenth Amendment to the Federal Con-
stitution.

App. 19

Next, the acts of the City officials in arresting and
in participating in the arrests of these defendants and
these prosecutions based thereon and the concomitant fail-
ure of the City officials to arrest certain other persons in
the vicinity who were threatening to exhibit acts of vio-
lence because of the defendants’ presence at the aforesaid
airport and because of the defendants’ endeavor to use the
airport facilities on an unsegregated basis constitutes
racial discrimination in violation of the due process
clause —

THE COURT: Hold on a minute.

Are you making a motion, arguing a motion or are
you testifying?

MR. SIMON: I am making a motion.

THE COURT: Leave out your facts and make the
motion according to law.

MR. SIMON: (Continuing) —in violation of the
Due Process Clause and the Equal Protection Clause of
the Fourteenth Amendment to the Constitution of the
United States and corresponding provisions of the Florida
Constitution whereby the defendants respectfully move
this Court to quash and dismiss the information and
charges herein filed.

App. 20
i

APPENDIX D
ASSIGNMENTS OF ERROR.

1. The Court erred in entering its judgment against
the defendants for the reason that the statute pursuant to
which the defendants were arrested and which the de-
fendants are charged with having -violated, namely, F.S.
Chapter 61— is invalid and unconstitutional and violates
the rights of the defendants under the Florida and Fed-
eral Constitutions and denies to them the due process of
law and the equal protection of laws and consequently,
the defendants were unlawfully and illegally arrested and
the charges placed against them were without foundation.

2. The Court erred in entering its judgment against
the defendants for the further reason that the said arrests
and charges constitute a denial to the defendants of the
equal protection of the law under the Fourteenth Amend-
ment to the Federal Constitution: a denial of due process
of law guaranteed thereby; a denial of the privileges and
immunities of State citizenship guaranteed thereby; and
a denial of the privileges and immunities of Federal citi-
zenship since the defendants were deprived of restaurant
facilities in the Tallahassee Municipal Airport owned and
operated as an instrumentality of the City of Tallahassee,
by reason of their color or association with persons of
color, and the said facilities were not made available to
them without regard to their race or color.

3. The Court erred in entering its judgment against
the defendants for the reason that the defendants were
passengers in interstate commerce awaiting departure of
their plane from .Tallahassee to points outside the State

App. 21

of Florida, and consequently the racially discriminatory
arrests and prosecutions brought against the defendants,
constitute a violation of their rights of unfettered travel
free of racial discrimination under the Interstate Com-
merce Clause of the Federal Constitution (Article I, Sec-
tion 8, Clause 3), a violation of their privileges and im-
munities of Federal citizenship, a violation of the Federal
Aviation Laws, and a violation of the Federal Aviation
Act of 1958, and in particular, Section 404 of said Act (72
Stat. 760; 49 U.S.C.A., Section 1374 (b)).

4. The Court erred in entering judgment against
the defendants for the reason that the arrests of the de-
fendants and their prosecution in view of the evidence
constitutes a violation of their liberty of contract as guar-
anteed by the Fourteenth Amendment to the Federal Con-
stitution.

5. The Court erred in entering its judgment against
the defendants for the reascn that the acts of the City of-
ficials in arresting and prosecuting the defendants who
constituted a party of Negroes and persons in association
with Negroes and who were peaceable, quiet, and dignified
at ail times, constitute patent racial discrimination by a
municipality in violation of the due/process clause and
“équal protection clauses of the Fourteenth Amendment
to the Constitution of the United States.

6. The Court erred in entering its judgment against
the defendants for the reason that the same was contrary

to the weight of the evidence.

7. The Court erred in entering its judgment against

_ the defendants for the reason that the same was contrary
to law.

. 8. The Court erred in entering its judgment against
the defendants for tHe reason that the arrests of the de-
fendants and their subsequent trial and conviction by the
Municipal Court in and for the City of Tallahassee con-
stituted racial discrimination against the defendants by
reason solely of their color or association with persons of
color in violation of the obligations placed upon the States
by the Fourteenth Amendment to the Constitution of the
United States not to discriminate against any person or
persons solely by reason of their color or associations with
persons of color.

9. The Court erred in entering its judgment against
the defendants for the reason that the arrests of the de-
fendants by peace officers and public officials of the City
of Tallahassee and the defendants’ subsequent trial and
conviction in and by the Municipal Court in and for the
City of Tallahassee, constituted State aid of racial dis-
crimination against the defendants by reason solely of
their color or association with persons of color by a lessee-
restauranteur (at the airport) of the City of Tallahassee,
in violation of the obligations placed upon the States by
the Fourteenth Amendment to the Constitution of the
United States not to discriminate against any person or
persons solely by reason of their color or association with
persons of color, and also in violation of the Federal Avia-
tion Act of 1958 and in particular, Section 404 of said
Act (72 Stat. 760; 49 U.S.C.A., Section 1374 (b)), .and
in further violation of the obligations placed upon the City
of .Tallahassee, a Florida Municipal Corporation, by the
provisions of F.S. 332.08 (3).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0405%3A02. Public record. Not legal advice.