Lombard v. Louisiana/Opinion of the Court
This case presents for review trespass convictions resulting from an attempt by Negroes to be served in a privately owned restaurant customarily patronized only by whites. However, unlike a number of the cases this day decided, no state statute or city ordinance here forbids desegregation of the races in all restaurant facilities. Nevertheless, we conclude that this case is governed by the principles announced in Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, and that the convictions for this reason must be reversed.
Petitioners are three Negro and one white college students. On September 17, 1960, at about 10:30 in the morning they entered the McCrory Five and Ten Cent Store in New Orleans, Louisiana. They sat down at a refreshment counter at the back of the store and requested service, which was refused. Although no sign so indicated, the management operated the counter on a segregated basis, serving only white patrons. The counter was designed to accommodate 24 persons. Negroes were welcome to shop in other areas of the store. The restaurant manager, believing that the 'unusual circumstance' of Negroes sitting at the counter created an 'emergency,' asked petitioners to leave and, when they did not do so, ordered that the counter be closed. The restaurant manager then contacted the store manager and called the police. He frankly testified that the petitioners did not cause any disturbance, that they were orderly, and that he asked them to leave because they were Negroes. Presumably he asked the white petitioner to leave because he was in the company of Negroes.
A number of police officers, including a captain and major of police, arrived at the store shortly after they were called. Three of the officers had a conference with the store manager. The store manager then went behind the counter, faced petitioners, and in a loud voice asked them to leave. He also testified that the petitioners were merely sitting quietly at the counter throughout these happenings. When petitioners remained seated, the police major spoke to petitioner Goldfinch, and asked him what they were doing there. Mr. Goldfinch replied that petitioners 'were going to sit there until they were going to be served.' When petitioners still declined to leave, they were arrested by the police, led out of the store, and taken away in a patrol wagon. They were later tried and convicted for violation of the Louisiana criminal mischief statute.  This statute, in its application to this case, has all the elements of the usual trespass statute. Each petitioner was sentenced to serve 60 days in the Parish Prison and to pay a fine of $350. In default of payment of the fine, each was to serve 60 additional days in prison. On appeal to the Supreme Court of Louisiana the judgments of conviction were affirmed. State v. Goldfinch, 241 La. 958, 132 So.2d 860. Because of the substantial federal questions presented, we granted certiorari. 370 U.S. 935, 82 S.Ct. 1579, 8 L.Ed.2d 805.
Prior to this occurrence New Orleans city officials, characterizing conduct such as petitioners were arrested for as 'sit-in demonstrations,' had determined that such attempts to secure desegregated service, though orderly and possibly in-offensive to local merchants, would not be permitted.
Exactly one week earlier, on September 10, 1960, a like occurrence had taken place in a Woolworth store in the same city. In immediate reaction thereto the Superintendent of Police issued a highly publicized statement which discussed the incident and stated that 'We wish to urge the parents of both white and Negro students who participated in today's sit-in demonstration to urge upon these young people that such actions are not in the community interest. * * * (W)e want everyone to fully understand that the police department and its personnel is ready and able to enforce the laws of the city of New Orleans and the state of Louisiana.'  On September 13, four days before petitioners' arrest, the Mayor of New Orleans issued an unequivocal statement condemning such conduct and demanding its cessation. This statement was also widely publicized; it read in part:
'I have today directed the superintendent of police that no additional sit-in demonstrations * * * will be permitted * * * regardless of the avowed purpose or intent of the participants * * *.
'It is my determination that the community interest, the public safety, and the economic welfare of this city require that such demonstrations cease and that henceforth they be prohibited by the police department.' 
Both statements were publicized in the New Orleans Times-Picayune. The Mayor and the Superintendent of Police both testified that, to their knowledge, no eating establishment in New Orleans operated desegregrated eating facilities.
Both the restaurant manager and the store manager asked the petitioners to leave. Petitioners were charged with failing to leave at the request of the store manager. There was evidence to indicate that the restaurant manager asked petitioners to leave in obedience to the directive of the city officials. He told them that 'I am not allowed to serve you here. * * * We have to sell to you at the rear of the store where we have a colored counter.' (Emphasis supplied.) And he called the police '(a)s a matter of routine procedure.' The petitioners testified that when they did not leave, the restaurant manager whistled and the employees removed the stools, turned off the lights, and put up a sign saying that the counter was closed. One petitioner stated that 'it appeared to be a very efficient thing, everyone knew what to do.' The store manager conceded that his decision to operate a segregated facility 'conform(ed) to state policy and practice' as well as local custom. When asked whether 'in the last 30 days to 60 days (he had) entered into any conference with other department store managers here in New Orleans relative to sit-in problems,' the store manager stated: '(w)e have spoken of it.' The above evidence all tended to indicate that the store officials' actions were coerced by the city. But the evidence of coercion was not fully developed because the trial judge forbade petitioners to ask questions directed to that very issue.
But we need not pursue this inquiry further. A State, or a city, may act as authoritatively through its executive as through its legislative body. See Ex parte Virginia, 100 U.S. 339, 347, 25 L.Ed. 676. As we interpret the New Orleans city officials' statements, they here determined that the city would not permit Negroes to seek desegregated service in restaurants. Consequently, the city must be treated exactly as if it had an ordinance prohibiting such conduct. We have just held in Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, that where an ordinance makes it unlawful for owners or managers of restaurants to seat whites and Negroes together, a conviction under the State's criminal processes employed in a way which enforces the discrimination mandated by that ordinance cannot stand. Equally the State cannot achieve the same result by an official command which has at least as much coercive effect as an ordinance. The official command here was to direct continuance of segregated service in restaurants, and to prohibit any conduct directed toward its discontinuance; it was not restricted solely to preserve the public peace in a nondiscriminatory fashion in a situation where violence was present or imminent by reason of public demonstrations. Therefore here, as in Peterson, these convictions, commanded as they were by the voice of the State directing segregated service at the restaurant, cannot stand. Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762.
^1 LSA-Rev.Stat., 1950 (Cum.Supp.1960), § 14:59(6), provides in pertinent part:
'Criminal mischief is the intentional performance of any of the following acts:
'(6) Taking temporary possession of any part or parts of a place of business, or remaining in a place of business after the person in charge of such business or portion of such business has ordered such person to leave the premises and to desist from the temporary possession of any part or parts of such business.'
^2 The full text of the statement reads:
'The regrettable sit-in activity today at the lunch counter of a Canal st. chain store by several young white and Negro persons causes me to issue this statement to the citizens of New Orleans.
'We urge every adult and juvenile to read this statement carefully, completely and calmly.
'First, it is important that all citizens of our community understand that this sit-in demonstration was initiated by a very small group.
'We firmly believe that they do not reflect the sentiments of the great majority of responsible citizens, both white and Negro, who make up our population.
'We believe it is most important that the mature responsible citizens of both races in this city understand that and that they continue the exercise of sound, individual judgment, goodwill and a sense of personal and community responsibility.
'Members of both the white and Negro groups in New Orleans for the most part are aware of the individual's obligation for good conduct-an obligation both to himself and to his community. With the exercise of continued, responsible law-abiding conduct by all persons, we see no reason for any change whatever in the normal, good race-relations that have traditionally existed in New Orleans.
'At the same time we wish to say to every adult and juvenile in this city that the police department intends to maintain peace and order.
'No one should have any concern or question over either the intent or the ability of this department to keep and preserve peace and order.
'As part of its regular operating program, the New Orleans police department is prepared to take prompt and effective action against any person or group who disturbs the peace or creates disorder on public or private property.
'We wish to urge the parents of both white and Negro students who participated in today's sit-in demonstration to urge upon these young people that such actions are not in the community interest.
'Finally, we want everyone to fully understand that the police department and its personnel is ready and able to enforce the laws of the city of New Orleans and the state of Louisiana.'
^3 The full text of the Mayor's statements reads:
'I have today directed the superintendent of police that no additional sit-in demonstrations or so-called peaceful picketing outside retail stores by sit-in demonstrators or their sympathizers will be permitted.
'The police department, in my judgment, has handled the initial sit-in demonstration Friday and the follow-up picketing activity Saturday in an efficient and creditable manner. This is in keeping with the oft-announced policy of the New Orleans city government that peace and order in our city will be preserved.
'I have carefully reviewed the reports of these two initial demonstrations by a small group of misguided white and Negro students, or former students. It is my considered opinion that regardless of the avowed purpose or intent of the participants, the effect of such demonstrations is not in the public interest of this community.
'Act 70 of the 1960 Legislative session (LSA-R.S. 14:103) redefines disturbing the peace to include 'the commission of any act as would foreseeably disturb or alarm the public.'
'Act 70 also provides that persons who seek to prevent prospective customers from entering private premises to transact business shall be guilty of disorderly conduct and disturbing the peace.
'Act 80 (LSA-R.S. 14:100.1)-obstructing public passages provides that 'no person shall wilfully obstruct the free, convenient, and normal use of any public sidewalk, street, highway, road, bridge, alley or other passage way or the entrance, corridor or passage of any public building, structure, water craft or ferry by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein.'
'It is my determination that the community interest, the public safety, and the economic welfare of this city require that such demonstrations cease and that henceforth they be prohibited by the police department.'