MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
Petitioners, six young Negroes, were convicted of breach of the peace for peacefully playing basketball in a public park in Savannah, Georgia, on the early afternoon of Monday, January 23, 1961. The record is devoid of evidence of any activity which a breach of the peace statute might be thought to punish. Finding that there is no adequate state ground to bar review by this Court and that the convictions are violative of due process of law secured by the Fourteenth Amendment, we hold that the judgments below must be reversed.
Only four witnesses testified at petitioners' trial: the two arresting officers, the city recreational superintendent, and a sergeant of police. All were prosecution witnesses. No witness contradicted any testimony given by any other witnesses. On the day in question the petitioners were playing in a basketball court at Daffin Park, Savannah, Georgia. The park is owned and operated by the city for recreational purposes, is about 50 acres in area, and is customarily used only by whites. A white woman notified the two police officer witnesses of the presence of petitioners in the park. They investigated, according to
The recreational superintendent's testimony was confused and contradictory. In essence he testified that school children had preference in the use of the park's playground facilities but that there was no objection to use by older persons if children were not there at the time. No children were present at this time. The arrests were made at about 2 p. m. The schools released their students at 2:30 and, according to one officer, it would have been at least 30 minutes before any children could have reached the playground. The officer also stated that he
The accusation charged petitioners with assembling "for the purpose of disturbing the public peace . . . ." and not dispersing at the command of the officers. The jury was charged, with respect to the offense itself, only in terms of the accusation and the statute.
Petitioners' principal contention in this Court is that the breach of the peace statue did not give adequate warning that their conduct violated that enactment in derogation of their rights under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States. This contention was plainly raised at the trial, both in a demurrer to the accusation and in motions for a new trial, and was pressed on appeal to the Georgia Supreme Court. Both the demurrer and new trial motions raised a number of other issues. The Georgia Supreme Court held that error in the denial of the motions for a new trial could not be considered because it was not properly briefed on the appeal. But the court nevertheless
Since there is some question as to whether the Georgia Supreme Court considered petitioners' claim of vagueness
A commentator on Georgia procedure has concluded that "[p]robably no phase of pleading in Georgia is fraught with more technicalities than with respect to raising constitutional issues."
In this case the Georgia Supreme Court held that error in the denial of the motions for a new trial could not be considered because "[t]here was no argument, citation of authority, or statement that [the grounds for reversal stated in the new trial motions] . . . were still relied upon." The court found "the applicable rule, as laid
To ascertain the precise holding of the Georgia court we must examine the brief which the petitioners submitted in connection with their appeal. It specifically assigned as error the overruling of their motions for a new trial. And in the section of the brief devoted to argument it was stated:
Obviously petitioners did in fact argue the point which they press in this Court. Thus the holding of the Georgia court must not have been that the petitioners abandoned their argument but rather that the argument could not be considered because it was not explicitly identified in the brief with the motions for a new trial. In short the Georgia court would require the petitioners to say something like the following at the end of the paragraph quoted above: "A fortiori it was error for the trial court to overrule the motions for a new trial." As was said in a similar case coming to us from the Georgia courts, this "would be to force resort to an arid ritual of meaningless form." Staub v. City of Baxley, supra, at 320. The State may not do that here any more than it could in Staub. Here, as in Staub, the state ground is inadequate. Its inadequacy is especially apparent because no prior Georgia case which respondent has cited nor which we have found gives notice of the existence of any requirement that an argument in a brief be specifically identified with a motion made in the trial court. "[A] local procedural rule, although it may now appear in retrospect to form part of a consistent pattern of procedures . . . , cannot avail the State here, because petitioner[s] could not fairly be deemed to have been apprised of its existence. Novelty in procedural requirements cannot be permitted to thwart review in this Court . . . ." N. A. A. C. P. v. Alabama, supra, at 457. We proceed to a consideration of the merits of petitioners' constitutional claim.
Three possible bases for petitioners' convictions are suggested. First, it is said that failure to obey the command of a police officer constitutes a traditional form of breach of the peace. Obviously, however, one cannot be punished
Second, it is argued that petitioners were guilty of a breach of the peace because their activity was likely to cause a breach of the peace by others. The only evidence to support this contention is testimony of one of the police officers that "The purpose of asking them to leave was to keep down trouble, which looked like to me might start—there were five or six cars driving around the park at the time, white people." But that officer also stated that this "was [not] unusual traffic for that time of day." And the park was 50 acres in area. Respondent
Third, it is said that the petitioners were guilty of a breach of the peace because a park rule reserved the playground for the use of younger people at the time. However, neither the existence nor the posting of any such rule has been proved. Cf. Lambert v. California, 355 U.S. 225, 228. The police officers did not inform them of it because they had no knowledge of any such rule themselves. Furthermore, it is conceded that there was no sign or printed regulation which would give notice of any such rule.
Under any view of the facts alleged to constitute the violation it cannot be maintained that petitioners had adequate notice that their conduct was prohibited by the breach of the peace statute. It is well established that a conviction under a criminal enactment which does not give adequate notice that the conduct charged is prohibited is violative of due process. Lanzetta v. New Jersey, 306 U.S. 451; Connally v. General Construction Co., 269 U.S. 385; United States v. Cohen Grocery Co., 255 U.S. 81; see also United States v. National Dairy Products Corp., 372 U.S. 29.
"Unlawful assemblies.—Any two or more persons who shall assemble for the purpose of disturbing the public peace or committing any unlawful act, and shall not disperse on being commanded to do so by a judge, justice, sheriff, constable, coroner, or other peace officer, shall be guilty of a misdemeanor."
Respondent does not argue that an adequate state ground exists insofar as petitioners' claim of vagueness was raised in the demurrer.