author: Me. Justice Rehnquist Mr. Justice Douglas, Me. Justice Brennan, Mr. Justice Marshall,

text:
    ADAMS, WARDEN v. WILLIAMS
    No. 70-283.
    Argued April 10, 1972
    Decided June 12, 1972
    RehNQUist, J., delivered. the opinion of the Court, in which Burgee, C. J., and Stewart, White, Blackmun-, and Powell, JJ., joined. Douglas, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 149.. BrenNAN, J., filed a dissenting opinion, post, p. 151. Marshall, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 153.

      Donald A. Browne argued the cause and filed briefs for petitioner.

      Edward F. Hennessey argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Petersen, and Beatrice Rosenberg for the United States; by Frank S. Hogan, pro se, Michael R. Juviler, and Herman Kaufman for the District Attorney of New York County; and by Frank G. Carrington, Jr., Alan S. Ganz, Wayne W. Schmidt, and Glen R. Murphy for Americans for Effective Law Enforcement, Inc,, et al.

      Burt Neuborne and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae.

   Me. Justice Rehnquist

delivered the opinion of the Court.

Respondent Robert Williams was convicted in a Connecticut state court of illegal possession of a handgun found during a “stop and frisk,” as well as of possession of heroin that was found during a full search incident to his weapons arrest. After respondent’s conviction was affirmed by the Supreme Court of Connecticut, 157 Conn. 114, 249 A. 2d 245 (1968), this Court denied certiorari. 395 U. S. 927 (1969). Williams’ petition for federal habeas corpus relief was denied by the District Court and by a divided panel of the Second Circuit, 436 F. 2d 30 (1970), but on rehearing en banc the Court of Appeals granted relief. 441 F. 2d 394 (1971). That court held that evidence introduced at Williams> trial had been obtained by an unlawful search of his person and car, and thus the state court judgments of conviction should be set aside. Since we conclude that the policeman’s actions here conformed to the, standards this Court laid down in Terry v. Ohio, 392 U. S. 1 (1968), we reverse.

Police Sgt. John Connolly was alone early in the morning on car patrol duty in a high-crime area of Bridgeport, Connecticut. At approximately 2:15 a.m. a person known to Sgt. Connolly approached his cruiser and informed him that an individual seated, in a nearby vehicle was carrying narcotics and had a gun at his waist.

After calling for assistance on his car radio, Sgt. Connolly approached the vehicle to investigate the informant’s report. Connolly tapped on the car window and asked the occupant, Robert Williams, to open the door. When Williams rolled down the window instead, the sergeant reached into the car and removed a fully loaded revolver from Williams’ waistband. The gun had not been visible to Connolly from outside the car, but it was in precisely the place indicated by the informant. Williams was then arrested by Connolly for unlawful possession of the pistol. A search incident to that arrest was conducted after other officers arrived. They found substantial quantities of heroin on Williams’ person and in the car, and they found a machete and a second revolver hidden in the automobile.

Respondent contends that the initial seizure of his pistol,, upon which rested the later search and seizure of other weapons and narcotics, was not justified by the informant’s tip to Sgt. Connolly. He claims that absent a more reliable informant, or some corroboration of the tip, the policeman’s actions were unreasonable under the standards set forth in Terry v. Ohio, supra.

In Terry this Court recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id., at 22. The Fourth Amendment does not require a policeman who lacks the precise level of information necéssary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the' time. Id., at 21-22; see Gaines v. Craven, 448 F. 2d 1236 (CA9 1971); United States v. Unverzagt, 424 F. 2d 396 (CA8 1970).

The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. “When an officer is justified in. believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,” he may conduct a limited protective search for concealed weapons. 392 U. S., at 24. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dan-gérous, he may conduct a weapons search limited in scope to this protective purpose. Id., at 30.

Applying' these principles to the present case, we believe that Sgt. Connolly acted justifiably in responding to his informant’s tip. The informant was known to him personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene. Indeed, under Connecticut law, the informant might have been subject to immediate arrest for making a false complaint had Sgt. Connolly’s investigation proved the tip incorrect. Thus, while the Court’s decisions indicate that this informant’s unverified tip may have been insufficient for a narcotics arrest or search warrant, see, ,e. g., Spinelli v. United States, 393 U. S. 410 (1969); Aguilar v. Texas, 378 U. S. 108 (1964), the information carried enough indicia of reliability to justify the officer’s forcible stop of Williams.

In reaching this conclusion, we reject respondent’s argument that reasonable cause, for a stop and frisk can only be based on the officer’s personal observation, rather than on information supplied by another person. Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover, every sitüation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations — for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime — the subtleties of the hearsay rule should not thwart an appropriate police response.

While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon and who was sitting alone in a.car in a high-crime area at 2:15 in the morning, Sgt. Connolly had ample reason to fear for his safety. When Williams rolled down his window, rather than complying with the policeman’s request to step out of the car so that his movements could more easily be seen, the revolver allegedly at Williams’ waist became an even greater threat. Under these circumstances the policeman’s action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable. The loaded gun seized as a result of this intrusion was therefore admissible at Williams’ trial. Terry v. Ohio, 392 U. S., at 30.

Once Sgt. Connolly had found the gun precisely where the informant had predicted, probable cause existed to arrest Williams for unlawful possession of the weapon. Probable cause to arrest depends “upon whether, at the moment the arrest was made . . . the facts and circumstances within [the arresting officers’]- knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing-that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 379 U. S. 89, 91 (1964). In the present case the policeman found Williams in possession of a gun in precisely the place predicted by the informant. This tended to corroborate the reliability of the informant’s further report of narcotics and, together with the surrounding' circumstances, certainly suggested no lawful explanation for possession of the gun. Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. See Draper v. United States, 358 U. S. 307, 311-312 (1959). Rather, the court will evaluate generally the circumstances at the time of the arrest to decide if the officer had probable cause for his action:

“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U. S. 160, 175 (1949).

See also id., at 177. Under the circumstances surrounding Williams’ possession of the gun seized by Sgt. Connolly, the arrest on the weapons charge was supported by probable cause, and the search of his person and of the car incident to that arrest was lawful. See Brinegar v. United States, supra; Carroll v. United States, 267 U. S. 132 (1925). The fruits of the search were therefore properly admitted at Williams’ trial, and the Court of Appeals erred in reaching a contrary conclusion.

Reversed.

Mr. Justice Douglas,

with whom Mr. Justice Marshall concurs, dissenting.

My views have been stated in substance by Judge Friendly, dissenting, in the Court of Appeals. 436 F. 2d 30, 35. Connecticut allows its citizens to carry weapons, concealed or otherwise, at will, provided they have a permit. Conn. Gen. Stat. Rev. §§ 29-35, 29-38. Connecticut law gives its police no authority to frisk a person for a permit. Yet the arrest was for illegal possession of a gun. The only basis for that arrest was the informer’s tip on the narcotics. ■ Can it be said that a man in possession of narcotics will not have a permit for his gun? Is that why the arrest for possession of a gun in the free- and-easy State of - Connecticut becomes constitutional?

The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. . A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “A well régulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason- why pistols-may not be barred from anyone with a police record. There, is no, reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police:

. The leading case is United States v. Miller, 307 U. S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there, being no evidence that .a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining, a . “militia.”

“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia — civilians primarily, soldiers on occasion.” Id., at 178-179.

Critics say that proposals like this water down the Second Amendment. . Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than' the Fourth Amendment. I share with Judge Friendly a concern that the easy extension of Terry v. Ohio, 392 U. S. 1, to “possessory offenses” is a serious intrusion on Fourth Amendment safeguards. “If it is to be extended to the latter at all, this should be only where observation by the officer himself or well authenticated information shows ‘that criminal activity may be afoot.’ ” 436 F. 2d, at 39, quoting Terry v. Ohio, supra, at 30.

Me. Justice Brennan,

dissenting.

The crucial question on which this case turns, as the Court concedes,, is whether, there being no contention that Williams acted voluntarily in rolling down the win-, dow of his car, the State had shown sufficient cause to justify Sgt. Connolly’s “forcible” stop. I would affirm, believing, for the following reasons stated by Judge, now Chief Judge, Friendly, dissenting, 436 F. 2d 30, 38-39, that the State did not make that showing:

“To begin, I have the gravest hesitancy in extending [Terry v. Ohio, 392 U. S. 1 (1968)] to crimes like the possession of narcotics .... There is too much danger that, instead of the stop being the object and the protective frisk, an incident thereto, the reverse will be true. Against that we have here the added fact of the report'that Williams had a gun on his person. . . . [But] Connecticut allows its citizens to carry weapons, concealed or otherwise, at will, provided only they have a permit, ■Conn. Gen. Stat. §§29-35 and 29-38, and gives its police officers no special authority to stop for the purpose of determining whether the citizen has one. . . .
“If I am wrong in thinking that Terry should not be applied at all to mere possessory offenses,... I would not find the combination of Officer Connolly’s almost meaningless observation and the tip in this case to be sufficient justification for the intrusion. The tip suffered from a threefold defect, with each fold compounding the others. The informer was unnamed, he was not shown to have been reliable with respect to guns or narcotics, and he gave no information which demonstrated personal knowledge or — what is worse — could not readily have been manufactured by the officer after the event. To my mind, it has not been sufficiently recognized that the difference between this sort of tip and the accurate prediction of an unusual event is as important on the latter score as on the former. [Ini Draper v. United States, 358 U. S. 307 (1959),] Narcotics Agent Marsh would hardly have been at the Denver Station at the exact moment of the arrival of the train Draper had taken from Chicago unless someone had told him something important, although the agent might later have embroidered the details to fit the observed facts.. .. There is no such guarantee of a patrolling officer’s veracity when he testifies to a ‘tip’ from an unnamed informer saying no more than that the officer will find a gun and narcotics on a man across the street, as he later does. If the state wishes to rely on a tip of that nature to validate a stop and frisk, revelation of the name of the informer or demonstration that his name is unknown and could not reasonably have been ascertained should be the price.
“Terry v. Ohio was intended to free a police officer from the rigidity of a rule that would prevent his doing anything to a man reasonably suspected of being about to commit or having just committed a crime of violence, no matter how grave the problem or impelling the need for swift action, unless the. officer had what a court would later determine to be probable cause for arrest. . It was meant for the serious cases of imminent danger or of harm recently perpetrated to persons or property, not the conventional ones of possessory offenses. If it is to be extended to the latter at all, this should be only where observation by the officer himself or well authenticated information shows 'that criminal activity may be afoot.’ 392 U. S., at 30. . . . I greatly fear that if the [contrary view]' should be-followed, Terry will have opened the sluicegates for serious and unintended erosion of the protection of the Fourth Amendment.”

Mr. Justice Marshall,

with whom Mr. Justice Douglas joins, dissenting.

Four years have passed since we decided Terry v. Ohio,. 392 U. S. 1 (1968), and its companion cases, Sibron v. New York and Peters v. New York, 392 U. S. 40 (1968). They were the first cases in which this Court explicitly recognized the concept of “stop and frisk-” and squarely held that police officérs may, under appropriate circumstances, stop and frisk persons suspected of criminal activity even though there is less' than probable cause for an arrest. This case marks our first opportunity to give some flesh to the bones of Terry et al. Unfortunately, the flesh provided by. today’s decision cannot' possibly be made to fit on Terry’s skeletal framework.

“[T]he most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are 'jealously and carefully drawn,’ and there must be 'a' showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ '[T]he burden is on-those seeking the exemption to show the need for it.’ ” Coolidge v. New Hampshire, 403. U. S. 443, 454-455 (1971). In Terry we said that, “we do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.” 392 U. S., at 20. Yet, we upheld the stop and frisk in Terry because we recognized that the realities of on-the-street. law enforcement require an officer to act at times on the basis of strong evidence, short of probable cause,. that criminal activity is taking place and that the criminal is armed and dangerous. Hence, Terry stands only for the proposition that police officers have a “narrowly drawn authority to ... . search for weapons” without a warrant. ' Id., at 27.

In today’s decision the Court ignores the fact that Terry begrudgingly accepted the necessity -for creating an exception from the warrant requirement of the Fourth Amendment and treats this case as if warrantless searches were the rule rather than the “narrowly drawn” exception. This decision betrays the careful balance that Terry sought to strike between a citizen’s right to privacy and his.government’s responsibility for effective law enforcement and expands the concept of warrantless searches far beyond anything heretofore recognized as legitimate. I dissent.

I

A. The Court’s opinion states the facts and I repeat only those that appear to me to be relevant to the Fourth Amendment issues presented.

Respondent was sitting on the passenger side of the front seat of a cat parked on the street in a “high crime area” in Bridgeport, Connecticut, at 2:15 a. m. when a police officer approached his car. During a conversation that had just taken place nearby, the officer was told by an informant that respondent had narcotics on his person and that he had a gun in his waistband. The officer saw that the motor was not running, that respondent was seated peacefully in the car, and that there was no indication that he was about to leave the scene. After the officer asked respondent to open the door, respondent rolled down his window instead and the officer reached into the car and pulled a gun from respondent’s waistband. The officer immediately placed respondent under arrest for carrying the weapon and searched him, finding heroin in his coat. More heroin was found in a later search of the automobile. Respondent -moved to suppress both the gun and the heroin prior to trial. His motion was denied and he was convicted of possessing both items.

B. The Court erroneously attempts to describe the search for the gun as a protective search incident to a reasonable investigatory stop. But, as in Terry, Sibron and Peters, supra, there is no occasion in this case to determine whether or not police officers have a right to seize and to restrain a citizen in order to interrogate him. The facts are clear' that the officer intended to make the search as soon as he approached the respondent. He asked no questions; he made no investigation; he simply searched. There was nothing apart from the information supplied by. the informant to cause the officer to search. Our inquiry must focus, therefore, as it did in Terry on whether the officer had sufficient facts from which he could reasonably infer that respondent was not only engaging in illegal activity, but also that he was armed and dangerous. The focus falls on the informant.

The only information that the informant had previously given the officér involved homosexual conduct in the local railroad station. The following colloquy took place between respondent’s counsel and the officer at the hearing on respondent’s motion to suppress the evidence that had been seized from him.

“Q. Now, with respect to the information that was given you about homosexuals in the Bridgeport Police Station [stc], did that lead to an arrest? A. No.
“Q. An arrest was not made. A. No. There was no substantiating evidence.
“Q. There was no substantiating evidence? - A. No., ■
“Q. And what do you mean by that? A*. I didn’t have occasion to witness these individuals committing any crime of any nature.
“Q. In other words, after this person gave you the information, you checked for corroboration, before you made an arrest. Is that right? A. Well, I checked to determine the possibility of homosexual activity.
“Q. And since an arrest was made, I take it you didn’t find any substantiating information. A. I’m sorry counselor, you say since an arrest was made.
“Q. Was not made. Since an arrest was not made, I presume you didn’t find any substántiating information. A. No.
“Q. So that, you don’t recall any other specific, information given you about the commission of crimes by this informant. A. No.
“Q. And you still thought this person was reliable. A. Yes.”

Were we asked'to determine whether the information supplied by the' informant was sufficient to provide probable cause, for an arrest and search, rather than a stop and frisk, there can be no doubt that we would hold that it was insufficient. This Court has squarely held that a search and seizure cannot be justified on the basis of conclusory allegations of an unnamed informant who is allegedly credible. Aguilar v. Texas, 378 U. S. 108 (1964). In the recent case of Spinelli v. United States, 393 U. S. 410 (1969), Mr. Justice Harlan made it plain beyond any doubt that where police rely on an informant to make a search and seizure, they must know that the informant is generally trustworthy and that he- has obtained his information in a reliable way. Id., at 417. Since the testimony of the arresting officer in the instant case patently fails to demonstrate that the informant was known, to be trustworthy and since it is also clear that''the officer had no idea of the source of the informant’s “knowledge,” a search and seizure would have been illegal.

Assuming, arguendo, that this case truly involves, not an arrest, and a search incident thereto, but a stop and frisk, we must decide whether or not the information possessed by the officer justified this interference with respondent’s liberty. Terry, our only case to actually uphold a stop and frisk,' is not directly in point, because the police officer in that case acted on the basis of his own personal observations. No informant was involved. But the rationale of Terry is still controlling, and it requires that we condemn the conduct of the police officer in encountering the respondent.

Terry did not hold that whenever a policeman has á hunch that a citizen is engaging in criminal activity, he may engage in a stop and frisk. It held that if police officers want to stop and frisk, they must have specific facts from which, they can reasonably infer that an individual is engaged in criminal activity and is armed and dangerous. It was central to our decision in Terry that the police officer acted on the basis of his own personal observations and that he carefully scrutinized the conduct of his suspects before interfering with them in any way. When we legitimated the conduct of the officer in Terry we did so because of the substantial reliability of the information, on which the officer based his decision to act.

If the Court does not ignore the care with which we examined the knowledge possessed by the officer in Terry when he acted, then I cannot see how the actions of the officer in this case can be upheld. The Court explains what the officer knew about respondent before accosting him. But what is more significant is what he- did not know. With respect to the scene generally, the officer had no idea how long respondent had been in the car, how long the car had been parked, or to whom the car belonged. With respect to the gun, the officer did not know if or when the informant had ever seen the gun, or whether the gun was carried legally, as Connecticut law permitted, or illegally. And with respect to the narcotics, the officer did not know what kind of narcotics respondent allegedly had, whether they were legally or illegally possessed, what the basis of the informant’s knowledge was, or even whether the informant was capable of distinguishing narcotics from other substances.

Unable to answer any of these questions, the officer nevertheless determined that it was necessary to intrude on respondent’s liberty. I believe that his determination was totally unreasonable. As I read Terry, an officer may act on the basis of reliable information. short of • probable cause to make a stop, and ultimately a frisk, if necessary; but the officer may not use unreliable, unsubstantiated, conclusory hearsay to justify an invasion of liberty. Terry never meant to approve the kind, of knee-jerk police reaction that we have before us in this case.

Even assuming that the officer had some legitimate reason for relying on the informant, Terry requires, before any stop and frisk is made, that the reliable information in the officer’s possession demonstrate that the suspect is both armed and dangerous , The fact remains that Connecticut specifically authorizes persons to .carry guns so long as they have a permit. Thus, there "was no reason for the officer to infer from anything that the informant, said that the respondent was dangerous. His-frisk was, therefore, illegal under Terry.

II

Even if I could agree with the Court that the stop and frisk in this case was proper, I could not go further and sustain the arrest and the subsequent searches. It takes probable cause to justify an arrest and search and seizure incident thereto. Probable cause means that the “facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offence has been committed.. . . .” Stacey v. Emery, 97 U. S. 642, 645 (1878). “[G]ood faith is not enough to constitute probable cause.”' Director General v. Kastenbaum, 263 U. S. 25, 28 (1923).

Once the officer seized the gun from respondent, it is uncontradicted that he did not ask whether respondent had a license to carry it, or whether respondent carried it for any other legal reason under Connecticut law. Rather, the officer placed him under arrest immediately and hastened to search his person. Since Connecticut has not made it illegal for private citizens to carry guns,' there is nothing in the facts of this case to warrant a man “of prudence and caution” to believe that any offense had been committed merely because respondent had a gun on his person. Any implication that respondent’s silence was some sort of a tacit admission of guilt would be utterly absurd.

It is simply' not reasonable to expect someone to protest that he is not acting illegally before he is told that he, is suspected of criminal activity. It would have been a simple matter for the officer to ask whether respondent had a permit, but he chose not to do so. In making this choice, he clearly violated the Fourth Amendment.

This case marks a departure from the mainstream of our Fourth Amendment cases. In Johnson v. United States, 333 U. S. 10 (1948), for example, the arresting officer had an informant’s tip and actually smelled opium coming from a room. This Court'still found the arrest unlawful. And in Spinelli v. United States, 393 U. S. 410, we found that there was no probable cause even where an informant’s information was corroborated by personal observation. If there was no probable cause in those' cases, I find it impossible to understand how there can be probable cause in this case.

Ill

Mr. Justice Douglas was the sole dissenter in Terry. He warned of the “powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees . . . .” 392 U. S., at 39. While I took the position then that we were not watering down rights, but were hesitantly and cautiously striking a necessary balance between the rights of Américan citizens to be free from government intrusion into their privacy and their government’s urgent need for a narrow exception to the warrant requirement of the Fourth Amendment, today’s decision demonstrates just how prescient Me. Justice Douglas was.

It seems that the delicate balance that Terry struck was simply too delicate, too susceptible to the “hydraulic pressures” of the day. As a result of today’s decision, the balance struck in Terry is now heavily weighted in favor of the government. And the Fourth Amendment, which was included in the Bill of Rights to prevent the kind of arbitrary and oppressive police action involved herein, is dealt a serious blow. Today’s decision invokes the specter of a society in which innocent citizens may be stopped, searched, and arrested at the whim of police officers who have only the slightest suspicion of improper conduct,

       Petitioner does not contend that Williams acted voluntarily in rolling down the window of his car.

       Section 53-168 of the Connecticut General Statutes, in force at the time of these events, provided that a “person who knowingly makes to any police officer ... a false report or a false complaint alleging that a crime or crimes have been committed” is guilty of a misdemeanor.

       Figures reported by the Federal Bureau of Investigation indicate that 125 policemen were murdered in 1971, with all but five of them having been killed by gunshot wounds. Federal Bureau of Investigation .Law Enforcement Bulletin, Feb. 1972, p. 33. According to one study, approximately 30% of police shootings ' occurred when a police officer approached a suspect seated' in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J. Crim. L. C. & P. S. 93. (1963).

       App, 96-97.

        Terry v. Ohio, 392 U. S. 1 (1968), makes it clear that' a stop and frisk is a search and seizure within the meaning of the Fourth Amendment. When I use the term stop and frisk herein, I merely intend to emphasize that it is, as Terry held, a lesser intrusion than a full-scale search and. seizure.

       In Sibron v. New York, 392 U. S. 40 (1968), the Court held that the action of the policeman could not be justified as a stop and . frisk. In Peters v. New York, 392 U. S. 40 (1968), the Court sustained the validity of a search and seizure by holding that' it was incident to a legal arrest.

        Terry v. Ohio, 392 U. S., at 29; Sibron v. New York, 392 U. S., at 64.

       The fact that the respondent carried his gun in a high-crime area is irrelevant. In such areas it is more' probable than not that citizens would be more likely 'to carry weapons authorized by the State to protect themselves.

       See Conn. Gen. Stat. Rév. § 29-35.

       Connecticut permits possession of certain narcotics under specified circumstances — e. g., pursuant to a doctor’s prescription. See Conn. Gen: Stat. Rev. §§ 19-443, 19r456 (c). 19-481.

       The Court virtually ignores , the requirement that the suspect bdangerous, as well as armed. Other courts have followed Terry more closely. See, e. g., Commonwealth v. Bourke, 218 Pa. Super. 320, 323, 280 A. 2d 425, 427 (1971); Commonwealth v. Clarke, 219 Pa. Super. 340, 343, 280 A. 2d 662, 663 (1971); Finley v. People, 176 Colo. 1, 488 P. 2d 883 (1971). See also State v. Goudy, 52 Haw. 497, 505, 479 P. 2d 800, 805 (1971) (Abe, J., dissenting).

       The Court appears to rely on the fact that the existence of the gun corroborated the information supplied to the officer by the informant. It cannot be disputed that there is minimal corroboration here, but the fact remains that the officer- still lacked any knowledge that respondent had done anything illegal. Since carrying a gun is not per se illegal in Connecticut, the fact .that respondent carried a gup is no more relevant to probable cause than the, fact that his shirt may have been blue, or that he was wearing a jacket.. Moreover, the fact that the informant can identify a gun on sight does not indicate an ability to do the same with narcotics. The corroboration of this one fact is a far cry from the corroboration that the Court found sufficient to sustain an arrest in Draper v. United States, 358 U. S. 307 (1959).


source: Caselaw Access Project

author:
Mb. Justice Rehnquist Mr. Justice Douglas,
      Mr. 'Justice Brennan,

license: Public Domain

text:
    MOOSE LODGE NO. 107 v. IRVIS et al.
    No. 70-76.
    Argued February 28, 1972
    Decided June 12, 1972

      Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Powell, JJ., joined., Douglas, J., filed a dissenting opinion, in which Marshall, Jjoined, post, p. 179. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 184.

      ■Frederick Bernays Wiener argued the cause for appellant. With him on the briefs were Clarence J. Ruddy, Robert E. Woodside, and Thomas D. Caldwell, Jr..

      Harry J. Rubin argued the cause for appellees and filed briefs for appellee Irvis. J. Shane Creamer, Attorney General of Pennsylvania, and Peter W. Brown and Salvatore J. Cucinotta, Deputy Attorneys General, filed a brief for appellees Scott et al.

      Robert A. Yothers filed a brief for the Benevolent and Protective Order of Elks, of the United States as amicus curiae urging reversal.
    Briefs of amici curiae urging affirmance were filed by. John T. Rigby for the Lawyers’ Committee for Civil Rights Under Law, and by Samuel Rabinove, Paul S. Berger, Joseph B. Robison, Arnold Forster, Paul Hartman, and. Joseph Z. Fleming for- the American Jewish Committee et al.

      William H. Botzer and Jack P, Janetatos filed a brief for the Washington State Federation of Fraternal, Patriotic, City and Country Clubs .as amicus curiae.

   Mb. Justice Rehnquist

delivered the opinion , of the Court.

Appellee Irvis, a Negro (hereafter appellee), was refused service by appellant Moose Lodge, a local branch of the national fraternal organization located in Harrisburg, Pennsylvania. Appellee then brought this action under 42 U. S. C; § 1983 for injunctive relief in the United States District Court for the Middle District of Pennsylvania. He claimed that because the Pennsylvania liquor board had issued appellant Moose Lodge a private club license that authorized the sale of alcoholic beverages on its premises,, the refusal of service to him was “state action” for the purposes of the Equal Protection Clause of the Fourteenth Amendment. He named both Moose Lodge and the Pennsylvania Liquor Authority as defendants, seeking injunctive relief that would have required the defendant liquor board to revoke Moose Lodge’s license so long as it continued its discriminatory practices. Ap-pellee sought no damages.

A three-judge district court, convened at appellee’s, request, upheld- his contention on the merits, and entered a-decree dedarmg-invalid the liquor license issued to Moose Lodge “as long as it follows a policy of racial discrimination in its membership or operating policies or practices.” Moose Lodge alone appealed from the decree, and we postponed decision as to jurisdiction until the hearing on the merits, 401 U. S. 992. Appellant urges, in the alternative, that we either vacate the judgment belowvbecause there is not presently a case or controversy between the parties, or that we reverse on the merits.

I

The District Court in its opinion found that “a Caucasian member in good standing brought plaintiff, a Negro, to the Lodge’s dining room and bar as his guest and requested service of food and beverages. The Lodge through its employees refused service to plaintiff solely because he is a Negro.” 318 F. Supp. 1246,- 1247. It' is undisputed that each local. Moose Lodge is bound by the constitution and general bylaws of the Supreme Lodge, the latter of which contain a provision limiting membership in the lodges to white male Caucasians. The District Court in this connection found that “[t]he lodges accordingly maintain a policy and practice of restricting membership to the Caucasian race and permitting members to bring, only Caucasian guests on lodge premises, particularly to the dining room and bar.” Ibid.

The District Court ruled, in favor of appellee oh his Fourteenth Amendment claim, and entered the previously described decree. Following its loss on the merits in the District Court, Moose Lodge moved to modify the final decree by limiting its effect to discriminatory policies with respect to the service of guests. Appellee bpposed the proposed, modification, and the court denied the motion.

The District Court did not find, and it could not- have found on this record, that appellee had sought membership in Moose Lodge, and been denied it. Appellant contends that because of . this fact, appellee had no standing to litigate the constitutional issue respecting Moose Lodge’s membership requirements, and that therefore the, decree of the court below erred insofar as it decided' that issue.

Any injury to appellee from the conduct of Moose Lodge stemmed, not from the lodge’s membership requirements, but from its policies with respect to the serving of guests of members. Appellee has standing to seek redress for injuries done to him, but may not seek redress for injuries done to others. Virginian R. Co. v. System, Federation, 300 U. S. 515, 558 (1937); Erie R. Co. v. Williams, 233 U. S. 685, 697 (1914)., While this Court has held that in exceptional situations a concededly injured party may rely on the constitutional rights of a third party in obtaining relief, Barrows v. Jackson, 346 U. S. 249 (1953), in this case appellee was not injured by Moose Lodge’s membership policy since he never sought to become a member.

Appellee relies on Flast v. Cohen, 392 U. S. 83 (1968), and Law Students Research Council v, Wadmond, 401 U. S. 154 (1971), to support the breadth of the District Court’s decree. Flast v. Cohen held that a federal taxpayer had standing qua taxpayer to challenge the expenditure of federal funds authorized by Congress iinder the taxing and spending clause of the Constitution. The Court in Flast pointed out:

“It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U. S. 429 (1952).” 392 U. S., at 102.

The taxpayer’s claim in Flast, of course, was that the proposed expenditure violated the Establishment Clause of the First Amendment to the Constitution, a clause which by its terms prohibits taxing and spending in aid of religion.

The Court in Law Students Research Council v. Wadmond, supra, noted that while appellants admitted that no person involved in that litigation had been refused admission to the New York bar, they claimed that the existence of New York’s system of screening applicants for admission to the bar worked, a chilling effect upon the free exercise of the rights of speech and association of students who must anticipate having to meet its' requirements. The Court then went on to decide the merits of .the students’ contention. While the doctrine of "overbreadth” has been held by this Court in prior decisions to accord standing by reason of the “chilling effect” that a particular law might have upon the exercise of the First Amendment rights, that doctrine has not' been applied- to constitutional litigation in areas other than those relating to the First Amendment.

We believe that Moose Lodge is correct, therefore, in contending that the District Court in its decree went beyond the vindication of any claim that appellee had standing to litigate. Appellee did, however, have standing to ■ litigate the constitutional validity of Moose Lodge’s policies relating to the service of guests of members. The language of the decree, insofar as it referred to Moose Lodge’s “policy of racial discrimination in its membership or operating policies or practices” is suflfi-ciently broad to encompass practices relating to the service of guests of members, as well as policies and practices relating to the acceptance of members. But Moose Lodge .claims that, because of the position appel-lee took on the motion to modify the decree, he in effect disclaimed any interest in obtaining relief based solely on the Lodge’s practice with respect to serving the guests of members.

Appellee in his brief on this point says: .

“[Moose Lodge’s argument as to mootness] is based upon Moose Lodge’s motion to modify the decree ... and somehow to allow it to change its operations and to. permit Irvis to be brought to the Moose Lodge’s premises as a guest. But, as Irvis pointed out in his answer to this motion . . . nothing at all would be changed even if this were done because the vice of racial discrimination arose from the privileges of membership, either those accruing to a person in his own enjoyment of them or those accruing to a person in his ability to bring a guest or guests to Moose Lodge. Nothing in the suggested modification would make repetition impossible because the fact that Irvis was' a guest was purely happenstance. Whether he be barred because no member would invite him or because he has no opportunity to become a member, the situation' remains unchanged.” (Brief for Appellee 41.)

During oral argument of the case here, counsel for appellee was asked to explain why he opposed the motion to modify made in the lower court, and he responded as follows:

“The motion to modify which would have allowed Mr. Irvis or any others tó be admitted as a guest would have done nothing to'remove the Commonwealth of Pennsylvania from the discriminatory actions of the Moose Lodge.
“That is, it still would have been a matter of being dependent upon a white member of the Moose Lodge to invite him there. It would have been a matter of no particular Negro being sure that the Moose Lodge would or would not discriminate. The. Commonweath of Pennsylvania would still be issuing that license to a discriminating private club. And I think it’s worth noting that at the time this motion to modify was being presented, the Moose Lodge was in the process, of aménding its by-laws to forbid Negroes from being guests. So, at the same time they were saying let us modify the decree so that we can -admit Mr. Irvis as a guest, their by-laws were being amended to say no Negroes can come in as guests, let alone members.
“We feel that the idea that he should then be allowed to come in as a guest through a modification of the decree does not go to the heart of the problem. It does not supply the type of redress that we think cuts through the problem of state participation or support for the discrimination of the Moose Lodge, and that is why we oppose it.” Tr. of Oral Arg. 31-32.

We are loath to attach conclusive weight to the relatively spontaneous responses of counsel to equally spontaneous questioning from the Court during oral argument. However, upon examination of this answer it reflects substantially the same position as appellee took in his brief here. While it is possible to infer from these statements that appellee is simply not interested in obtaining any relief as to guest practices of Moose Lodge if he should prevail on the merits, it is equally possible to read them as being tactical arguments designed to avoid having to settle for half a loaf when he' might obtain the whole loaf.

The mere refusal by appellee to consent to the proposed amendment of the judgment by itself could not be construed as a waiver or disclaimer of injunctive relief directed solely to Moose Lodge’s practice with respect to the service of guests. Appellee’s complaint, while directed primarily at membership policies of Moose Lodge, contained a customary prayer for other relief which was broad enough to embrace relief with respect to the practices of the lodge in serving guests of members. . The District Court in its decree used language that was clearly broad enough to include such practices, as well as the membership policies of Moose Lodge. Having thus prayed for. such relief in his complaint, and having obtained it from the District Court, nothing less than an explicit renunciation of any claim or desire for such relief here would justify our concluding that there was no longer a case or controversy with respect to Moose Lodge’s practices in serving guests of members. We do not Believe that a fair reading of appellee’s argument in opposition to the motion to amend the judgment below, or of the statements made in his brief and oral argument here, amount to such an explicit renunciation.

Because appellee had no standing to litigate a constitutional claim arising out of Moose Lodge’s membership practices, the District Court erred in reaching that issue on the merits. But it did not err in reaching the constitutional claim of appellee that Moose Lodge’s guest-service practices under these circumstances violated the Fourteenth Amendment. Nothing in the positions taken by the parties since the entry of the District Court decree has mooted that claim, and we therefore turn to its disposition.

II

Moose Lodge is a private club in the ordinary meaning of that term. It is a local chapter of a national fraternal organization having well-defined requirements for membership. It conducts all of its activities in a building that is owned by it. It is not publicly funded. Only members and guests are permitted in any lodge of the order; one may become a guest only by invitation of a member or upon invitation of the house committee.

Appellee, while conceding the right of private clubs to choose members upon a discriminatory basis, asserts that the licensing of Moose Lodge to serve liquor by the Pennsylvania Liquor Control Board amounts to such state involvement with the club’s activities as to make its discriminatory practices forbidden by the Equal Protection Clause of the Fourteenth Amendment. The relief sought and obtained by appellee in the District Court was an injunction forbidding the licensing by the liquor authority of Moose Lodge until it ceased its discriminatory practices. We conclude that Moose Lodge’s refusal to serve food and beverages to a guest by reason of the fact that he was a Negro does not, under the circumstances here presented, violate the Fourteenth Amendment.

In J.883, this Court in The Civil Rights Cases, 109 U. S. 3, set forth the essential dichotomy between discriminatory action by the State, which is prohibited by the Equal Protection Clause, and private conduct, “however discriminatory or wrongful,” against which that clause-“erects no shield,” Shelley v. Kraemer, 334 U. S. 1, 13 (1948). That dichotomy has been subsequently reaffirmed in Shelley v. Kraemer, supra, and in Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961).

While the principle is easily stated, the question of whether particular discriminatory conduct is private, on the one hand, or amounts to “state action,” on the other hand, frequently admits of no easy answer. “Only by sifting facts and weighing circumstances can . the non-obvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, supra, at 722.

Our cases make clear that the impetus for the forbidden discrimination need not originate with the State if it is state action that enforces privately originated discrimination. Shelley v. Kraemer, supra. The Court held in Burton v. Wilmington Parking Authority, supra, that a private restaurant owner who refused service because of á customer’s race violated the Fourteenth Amendment, where the restaurant was located in a building owned by a state-created parking authority and leased from the authority. The Court, after a comprehensive review of the relationship between the lessee and the parking authority concluded that the latter had “so far insinuated itself into a position of interdependence . with Eagle [the restaurant owner] that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so 'purely, private’ as to fall without the scope of the Fourteenth Amendment.” 365 U. S., at 725.

The Court has never- held, of course, that discrimination by an otherwise private entity would be violative of. the Equal Protection Clause if the private entity receives any sort of benefit or service at all from'the State, or if it is subject to state regulation in any degree whatever. Since state-furnished services include such necessities of life as electricity, water, and police and fire protection, such a holding would utterly emasculate the distinction between private as distinguished from state conduct set forth in The Civil Rights Cases, supra, and adhered to in subsequent decisions. Our holdings indicate that where the impetus for the discrimination is .private, the State must have “significantly involved it-sélf with invidious discriminations,” Reitman v. Mulkey, 387 U. S. 369, 380 (1967), in order for the discriminatory action to fall within the ambit of the constitutional prohibition.

Our prior decisions dealing with discriminatory refusal of service in public eating places are significantly different factually from the case now before us. Peterson v. City of Greenville, 373 U. S. 244 (1963), dealt with the trespass prosecution of persons who “sat in” at a restaurant to protest its refusal of service to Negroes. There the Court held that although the ostensible initiative for the trespass prosecution came from the proprietor, the- existence of a local ordinance requiring segregation of races in such places was tantamount to the State having “commanded a particular result,” 373 U. S., at 248. With one exception, which is discussed infra, at 178-179, there is no suggestion in this record that the Pennsylvania statutes and regulations governing the salé of liquor are intended either overtly or covertly to encourage discrimination.

In Burton, supra, the Court’s full discussion of the facts in its opinion indicatés the significant differences between that case and this:

“The land and building, were publicly owned. As an entity, the building was dedicated to ‘public uses’ in performance of the Authority’s ‘essential governmental functions.’ {"Citation omitted.] The costs of land acquisition, construction, and maintenance are defrayed entirely from donations by the City of Wilmington, from loans and revenue bonds, and from the proceeds of rentals and parking services out of which the loans and bonds were payable. Assuming that the distinction, would be significant, [citation omitted] the commercially leased areas were .not surplus state property, but constituted a physically and financially integral and, indeed, indispensable part of the State’s plan to operate its project as a self-sustaining unit. Upkeep and maintenance of the building, including necessary repairs, were responsibilities of the Authority and were payable out of public funds. It cannot be doubted that the peculiar relationship of the restaurant to the parking facility in which it is located confers on each an incidental variety of mutual benefits. Guests of the restaurant are afforded a convenient place to park their automobiles, even if they cannot- enter the restaurant directly from the parking area. Similarly,. its convenience for diners may well provide additional demand for the Authority’s parking facilities. Should any improvements effected in the leasehold by Eagle become part of the realty, there is no possibility, of increased taxes being passed onto it since the fee is held by a tax-exempt government agency. Neither can it be ignored, especially in view of Eagle’s affirmative allegation that for it to serve Negroes would injure its business, that profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency.” 365 U. S., at 723-724.

Here there is nothing approaching the symbiotic relationship between lessor and lessee that was present in Burton, where the private lessee obtained the benefit of locating in a building owned by the state-created parking authority, and the parking authority was enabled to carry out its primary public purpose of furnishing parking space by advantageously leasing portions of the building constructed for that purpose to commercial lessees such as the owner of the Eagle Restaurant. Unlike Burton, the Moose Lodge building is located on land owned by it, not by any public authority. Far from apparently holding itself out as a place' of public accommodation, Moose Lodge quite ostentatiously proclaims the fact that it is not open to the public at large. Nor is' it located and operated in such surroundings that although private in name, it discharges a. function or performs a service that would otherwise in all likelihood be performed by the State. In short, while Eagle was a public restaurant in a public building, Moose Lodge is a private social club in a private building.

With the exception hereafter noted, the Pennsylvania Liquor Control Board plays absolutely no part in establishing or enforcing the membership ór guest policies of the club that it licenses to serve liquor. There is no suggestion in this record that Pennsylvania law, either as written or as applied, discriminates against minority groups either in their right to apply for club licenses themselves or in their right to purchase and be served liquor in places of public accommodation. The only effect that the state licensing of Moose Lodge to serve liquor can be said to have on the right of any other Pennsylvanian to buy or be served liquor on premises other than those of Moose Lodge is that for some purposes club licenses are counted in the maximum number of licenses that may be issued in a given municipality. Basically each municipality has a quota of one retail license for each 1,500 inhabitants. Licenses issued to hotels, municipal golf courses, and airport restaurants are not counted in this quota, nor are club licenses until the maximum number of retail licenses is reached. Beyond that point, neither additional retail licenses nor additional club licenses may be issued so long as the number of issued and outstanding retail licenses remains at or above the statutory maximum.

The District Court was at pains to point out in its opinion what it considered to be the “pervasive” nature of the regulation of private clubs by the Pennsylvania Liquor Control Board. As that court noted, an applicant for a club license must make such physical alterations iii its premises as the board may require,' must file a list of the .names and addresses of its members and employees,, and must keep, extensive financial records. The board is granted the right to inspect the. licensed premises at any time when patrons, guests, or members are present.

However detailed this type of regulation may be in • some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise. The limited effect of the prohibition against obtaining additional club licenses when the maximum number of retail licenses allotted to a municipality has been issued, when considered together with the availability of liquor from hotel, restaurant, and rétail licensees, falls far short of conferring upon club licensees a monopoly in the dispensing of liquor in any given municipality or in the State as a whole. We therefore hold that, with the exception hereafter noted, the operation of the regulatory scheme enforced by the Pennsylvania Liquor Control Board does not sufficiently implicate the State in the discriminatory guest policies of Moose Lodge to make the latter “state action” within the .ambit of the Equal Protection Clause of the Fourteenth Amendment.

The District Court found that the regulations of the Liquor. Control Board adopted pursuant to statute affirmatively require that “[e]very club licensee shall adhere to all of the provisions of its Constitution and By-Laws.” Appellant argues that the purpose of this provision “is purely and simpiy and plainly the prevention of subterfuge,” pointing out that the bona fides of a private club, as opposed to a place of public accommodation masquerading as a private club,' is a matter with which the State Liquor Control Board may legitimately concern itself. Appellee concedes this to be the case, and expresses disagreement with the District Court on this point. There can be no doubt that the label “private club” can be and has been used to evade both regulations of state and local liquor authorities, and statutes requiring ' places of public accommodation to serve all persons without regard to race, color, religion, or national origin. This Court in Daniel v. Paul, 395 U. S. 298 (1969), had occasion to address this issue in connection with the application of Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U. S. C. § 2000a et seq.

The effect of this particular regulation on Moose Lodge under the provisions of the constitution placed in the record in the court below would be to place state sanctions behind its discriminatory membership rules, but not behind its guest practices, which were not embodied in the constitution of the lodge. Had there been no change in the relevant circumstances since the making of the record in the District Court, our holding in Part I of this opinion that appellee has standing to challenge only the guest practices of Moose Lodge would have a bearing on our disposition of this issue. Appellee stated upon oral argument, though, and Moose Lodge conceded in its brief that the bylaws of the Supreme Lodge have been altered since the lower court decision to make applicable to guests the same sort of racial restrictions as are presently applicable to members.

Even though the. Liquor Control Board regulation in question is neutral in its terms, the result of its application in a case where the constitution and bylaws of á club required racial discrimination would be to invoke the sanctions of the State to enforce a concededly discriminatory private rule. State action, for purposes of the Equal Protection Clause, may emanate from rulings of administrative and regulatory agencies as well as from legislative or judicial action. Robinson v. Florida, 378 U. S. 153, 156 (1964). Shelley v. Kraemer, 334 U. S. 1 (1948), makes it clear that the application of state sanctions to enforce such a rule would violate the Fourteenth Amendment: Although the record before us is not as clear as one would like, appellant has not persuaded us that the District Court should have denied any and all relief.

Appellee was entitled to a decree enjoining the enforcement of § 113.09 of the regulations promulgated by the Pennsylvania Liquor Control Board, insofar as that regulation requires compliance by Moose Lodge with provisions of its constitution and bylaws containing racially discriminatory provisions. He was entitled to no more. The judgment of the District Court is reversed, and the cause remanded with instructions to enter a decree in conformity with this opinion.

Reversed and remanded.

Mr. Justice Douglas,

with whom Mr. Justice Marshall joins, dissenting.

My view of the First Amendment and the related guarantees of the Bill of .Rights is that they create a zone of privacy which precludes government from interfering with private clubs or groups. The associational rights which our system honors permit all white, all black, all brown, and all yellow clubs' to be formed.. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates -must be. The individual can be as selective as he desires. So the fact that the Moose Lodge allows only Caucasians' to join or-eóme as guests is constitutionally irrelevant, as is the decision of the Black Muslims to admit to their services only members of their race.

The problem is different, however, where the public domain is concerned. I have indicated in Garner v. Louisiana, 368 U. S. 167, and Lombard v. Louisiana, 373 U. S. 267, that where restaurants or other facilities serving the public are concerned and licqn|és are obtained from the State for operating the business, the “public” may not be defined by the proprietor to include only people of his choice, nor may a state or municipal service be granted only to-some. Evans v. Newton, 382 U. S. 296, 298-299.

Those cases are hot precisely apposite, however; for a private club, by definition, is not in the public domain. And the fact, that a private club gets some kind of permit from the State or municipality does not make it ipso facto a public enterprise or' undertaking, any more than the grant to a householder of a permit to operate an incinerator puts the householder in the public domain. We must, therefore, examine whether there are special circumstances involved in the Pennsylvania scheme which differentiate the liquor license possessed by Moose Lodge from .the incinerator permit.

Pennsylvania has a state store system of alcohol distribution. Resale is permitted by hotels, restaurants, and private clubs which all must obtain licenses from the Liquor Control Board. The scheme of regulation is complete and pervasive; and the state courts have sustained many restrictions on the licensees. • See Tahiti Bar Inc. Liquor License Case, 395 Pa. 355, 150 A. 2d 112. Once a license is issued the licensee must comply with many detailed requirements or risk suspension or revocation of the license. Among these requirements is Regulation § 113.09 which says: “Every club licensee shall adhere to all. of the provisions of its Constitution and By-laws.” This regulation means, as applied to Moose Lodge, that it must adhere to the racially discriminatory provision of the Constitution of its Supreme Lodge that “[t]he membership of lodges shall be composed of male persons of the Caucasian or White race above the age of twenty-one years, and not married to someone of any other than the Caucasian or White race, who are óf good moral character, physically and mentally normal, who shall profess a ber lief in a Supreme Being.”

It is argued that this regulation only aims at the prevention of subterfuge and at enforcing Pennsylvania’s differentiation between places of public accommodation and bona fide private clubs. It is also argued that the regulation only gives effect to the constitutionally protected rights of privacy and of association. But I cannot so read the regulation. While those other purposes are embraced in it, so is the restrictive membership clause. And we have held that “a State is responsible for-the discriminatory act of a private party when the State, by its law,- has compelled the act.”. Adickes v. Kress & Co., 398 U. S. 144, 170. See Peterson v. City of Greenville, 373 U. S. 244, 248. It is irrelevant whether the law is statutory, or an administrative regulation. Robinson v. Florida, 378 U. S. 153, 156. And it is irrelevant whether the discriminatory act was instigated by the regulation, or was independent of it. Peterson v. City of Greenville, supra. The result, as I see it, is the same as though Pennsylvania had put into its liquor licenses a provision that the license may not be used to dispense liquor to blacks, browns, yellows — or atheists or agnostics. Regulation § 113.09 is thus an invidious form of state action.

Were this regulation the only infirmity in Pennsylvania’s licensing scheme, ,1 would perhaps agree with the majority that the appropriate relief would be a decree enjoining its enforcement. But there is another flaw in the scheme not so easily cured. Liquor licenses in Pennsylvania, unlike driver’s licenses, or marriage licenses, are not freely available to those who meet racially neutral qualifications. There is a complex quota system, which the majority accurately describes. Ante, at 176. What the majority neglects to say is that the quota for Harrisburg, where Moose Lodge No. 107 is located, has been full for many years. No more club licenses may be issued in that city.

This state-enforced scarcity of licenses restricts the ability of blacks to obtain liquor, for liquor is commercially available only at private clubs for a significant portion of each week. Access by blacks to places that serve liquor is further limited by the fact that the state quota is filled. A group desiring to form a nóndiscrim-inatory club which would serve blacks must purchase a license held by an existing club, which can' exact a monopoly price for the transfer.' The availability of such a license is speculative at best, however, for, as Moose Lodge itself concedes, without a liquor license a fraternal organization would be hard pressed to survive.

Thus, the State of Pennsylvania is putting the weight of its liquor license, concededly a valued and important adjunct to a private club, behind racial discrimination.

As the first Justice Harlan, dissenting in the Civil Rights Cases, 109 U. S. 3, 59, said:

“I agree that government has nothing to do with social, as distinguished from technically legal, rights of individuals. No government ever has brought, or ever can bring, its people into social intercourse against their wishes. Whether one person will permit or maintain social relations with another is a matter with which government has no concern. . . . What I affirm is that no State, nor the officers of any State, nor any corporation or individual' wielding power under State authority for the public benefit or the public .convenience, can, consistently . . . with the freedom established by the fundamental law . . . discriminate against freemen or citizens, in those rights, because of their race . . . .”

The regulation governing this liquor license has in it that precise infirmity.

I would affirm the judgmént below.

Mr. 'Justice Brennan,

with whom Mr. Justice Marshall joins, dissenting.

When Moose Lodge obtained its liquor license, the State of Pennsylvania became an active participant in the operation of the Lodge bar. Liquor licensing laws are only incidentally revenue measures; they are primarily pervasive regulatory schemes under which the State dictates and continually supervises virtually every detail of the operation of the licensee’s business. Very few, if any, other licensed businesses experience such complete state involvement. Yet the Court holds that such involvement, does not. constitute “state, action” making the Lodge’s refusal to serve a guest liquor solely because of- his race a violation of the Fourteenth Amendment. The vital flaw in the Court’s reasoning is its complete disregard of the fundamental value underlying the “state action” concept. That value is discussed in my separate opinion in Adickes v. Kress & Co,, 398 U. S. 144, 190-191 (1970):

“The state-action doctrine reflects the profound judgment that denials of equal treatment, and particularly denials on account of race or color, are singularly grave when government has or shares responsibility for them. Government is the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct. Therefore something is uniquely amiss in a society where the government, the authoritative oracle of community values, involves itself in racial discrimination. Accordingly, . . . the cases that have come before us [in which] this Court has condemned significant state involvement in racial discrimination, however subtle- and indirect it may have been and whatever form it may have taken [,] . . . represent vigilant fidelity to the constitutional principle that no State shall in any significant way lend its authority to the sordid business of racial discrimination.”

Plainly, the State of Pennsylvania’s liquor regulations intertwine the State with the operation of the Lodge bar in a “significant way [and] lend [the State’s] authority to the sordid business of racial discrimination.” The opinion of the late Circuit Judge Freedman, for the three-judge District Court, most persuasively demonstrates the “state action” present in this case:

“We believe the decisive factor is the uniqueness and the all-pervasiveness of the regulation by the Commonwealth of Pennsylvania, of the dispensing-of liquor under licenses granted by the state. The. regulation inherent in the grant of a state liquor license is so different in nature and extent from the ordinary licenses issued by the- state that it is different in quality.
“It had always 'been held- in Pennsylvania, even prior to the Eighteenth Amendment, that the exercise of the power to grant licenses for the sale of intoxicating liquor was an exercise of the highest governmental power, one in which the state had the fullest freedom inhering in the police power ■ of the sovereign. With the Eighteenth Amendment which went into effect in 1919 the right to deal in' intoxicating liquor was extinguished. ■ The era of Prohibition, ended with the adoption in 1933 of -the Twenty-first Amendment, which has left to each state the absolute power to prohibit the sale, possession or use of intoxicating liquor, and in general to deal otherwise with it as it sees fit.
“Pennsylvania has exercised this power with the fullest measure of state authority. Under the Pennsylvania plan the state monopolizes the sale of liquor through its so-called state stores, operated by the state. Resale of liquor is permitted by hotels, restaurants and private clubs, which must obtain licenses from the Liquor Control Board, authorizing them ‘to purchase liquor from a Pennsylvania Liquor Store [at a discount] and keep on the premises such liquor and, subject to the provisions of this Act and the regulations' made thereunder to sell the same and also malt or brewed beverages to guests, patrons or members for consumption on the hotel, restaurant or club premises.’
“The issuance or refusal of a license to a club is in the discretion of the Liquor Control Board. In order to secure one of the limited number of licenses which are available in each municipality an applicant must comply .with extensive requirements, which in general are applicable to commercial and club licenses equally. The applicant must make such physical alterations in his premises as the Board may require and, if a club, must file a list of the names and addresses of its. members and employees, together with such other information as the Board may require. He must conform his over: all financial arrangements to the statute’s exacting requirements and keep extensive records. He may not permit ‘persons of ill repute’ to frequent his premises nor allow thereon at any time any ‘lewd, immoral or improper entertainment.’ He must grant the Board and its agents, the right to inspect .the licensed premises at any time when patrons, guests or members are present. It is ohly on compliance with these and numerous other requirements' and if the Board is satisfied that the applicant is ‘a person of good repute’ and that the license will not be ‘detrimental to the welfare, health, peace and morals of the, inhabitants of the neighborhood,’ that the license may issue.
“Once a license has been issued the licensee must comply with many detailed requirements or risk its suspension or revocation. He must in any event have it renewed periodically. Liquor licenses have been employed in Pennsylvania to regulate a wide variety of moral conduct, such as the presence and activities of homosexuals, performance by a topless dancer, lewd dancing, swearing, being noisy or disorderly. So broad is the state’s power that the courts of Pénnsylvania have upheld its restriction of freedom of expression of a licensee on the ground that in doing so it merely exercises its plenary power to attach conditions to the privilege of dispensing liquor which a .licensee holds at the sufferance of the state.
“These are but some of the many reported illustrations of the use which thé state has made of its unrestricted power to regulate , and even to deny the right to sell, transport or possess intoxicating liquor. It would be difficult to find a more pervasive interaction of state authority with personal conduct. The holder of a liquor license from the Commonwealth of Pennsylvania therefore is not like other licensees who conduct their enterprises at arms-length from the state,- even though they may have been required to comply with certain conditions, such as zoning or building requirements, in order to obtain or continue to enjoy the license which authorizes them to engage in their business. The state’s concern in such cases is minimal and once the conditions it has exacted are met the customary operations of the enterprise are free from further encroachment. Here by contrast beyond the act of licensing is the continuing and pervasive regulation of the1 licensees by the state to an unparalleled extent. The unique , power’which the. state enjoyá in this area, which has put it in the business of operating state liquor stores and in the role of licensing clubs, has been exercised in a manner whiéh reaches intimately and deeply into the operation of the licensees.
’ “In addition to this, the regulations of the Liquor Control Board adopted pursuant to the statute affirmatively require that 'every club licensee shall adhere to all the provisions of its constitution and by-laws.’. As applied to the present case this regulation requires the local Lodge, to adhere to the constitution of the Supreme Lodge and thus ,to exclude non-Caucasians from membership in its licensed club. The state therefore, has been far from neutral. It has declared that the local Lodge must adhere to the discriminatory provision under penalty - of loss of its license. It would be difficult in any event to consider the state neutral in an area which is so permeated with state regulation: and control, but any vestigé of neutrality disappears when the state’s regulation specifically exacts , compliance by the licensee with an approved provision for dis-r crimination, especially where the exaction holds the threat of loss of the license.
“However it may deal with its licensees in exercising its great and untrammeled power over liquor traffic, the state may not discriminate against others or disregard the operation of the Equal Protection Clause of the Fourteenth Amendment as it'affects personal rights. Here the state has used, its great power to license the liquor traffic in a manner which has no relation to the traffic in liquor itself but instead permits it to be exploited in the pursuit of a discriminatory practice.” 318 F. Supp. 1246, 12481250 (MD Pa. 1970).

This is thus a case requiring application -of the principle that until today has governed our determinations of the existence of “state action”: “Our prior decisions leave no doubt that the mere existence of efforts by the State, through legislation or otherwise, to authorize, encourage, or otherwise support racial discrimination in a particular facet of life constitutes illegal state involvement in those pertinent private acts of discrimination that subsequently occur.” Adickes v. Kress & Co., 398 U. S., at 202 (separate opinion of Brennan, J.). See, e. g., Peterson v. City of Greenville, 373 U. S. 244 (1963); Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961); Evans v. Newton, 382 U. S. 296 (1966) ; Hunter v. Erickson, 393 U. S. 385 (1969); Lombard v. Louisiana, 373 U. S. 267 (1963); Reitman v. Mulkey, 387 U. S. 369 (1967); Robinson v. Florida, 378 U. S. 153 (1964); McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151 (1914).

I therefore dissent and would affirm the final decree entered by the District Court.

       Our recent opinion in Sierra Club v. Morton, 405 U. S. 727, referred to a similar relationship between the standing of the plaintiff and the argument of which he might avail himself where judicial review of agency action is sought.' Id., at 737.

       The Pennsylvania courts have found that Local 107 is not a . “place of public accommodation" within the terms of the Pennsylvania Human Relations Act, Pa. Stat. Ann., Tit. 43, § 951 et seq. (1964). Pennsylvania Human Relations Comm’n v. The Loyal Order of Moose, Lodge No. 107, Ct. Common Pleas, Dauphin County, aff’d, 220 Pa. Super. 356, 286 A. 2d 374 (1971).

       Unlike the situation in Public Utilities Comm’n v. Poliak, 343 U. S. 451 (1952), where the regulatory agency had affirmatively approved- the practice of the regulated entity after full investigation, the Pennsylvania Liquor Control Board has neither approved nor endorsed the racially discriminatory practices of Moose Lodge.

       Regulations of the Pennsylvania Liquor Control Board § 113.09 (June 1970 ed.).

       Brief for Appellant 10.

       Section 92.1 of the General Laws of the Loyal Order of Moose presently provides in relevant part as follows:
      “Sec. 92.1 — To Prevent Admission of Non Members — There shall •never at any.time be admitted to any social club or home maintained or operated by any lodge, any person who is not a member of some lodge in good standing. The House Committee may grant guest privileges to persons who are eligible for membership in the fraternity consistent with governmental laws and regulations. A member shall accompany such guest and shall be responsible for the actions of said guest, and upon the member leaving, the guest must also leave. It is the duty of each member of the Order when so requested to submit for inspection his receipt for dues to any member of any House Committee or its authorized employee.”

       It has been stipulated that Moose Lodge No. 107 '‘is, in all respects, private in nature and does not appear to have any public characteristics.” App. 23. The cause below was tried solely on the theory that granting a Pennsylvania liquor license to a club assumed to be purely private was sufficient state involvement to trigger the Equal Protection Clause. There was no occasion to consider the question whether, perhaps because of a role as a center of community activity, Moose Lodge No. 107 was in fact “private” for equal protection purposes. The decision today, therefore, leaves this question open. See Comment, Current Developments in State Action and Equal Protection of the Law, 4 Gonzaga L. Rev. 233, 271-286.

       Indeed, the quota is more than full, as a result of a grandfather clause in the law limiting licenses to one per 1,500 inhabitants. Act No, 702 of Dec. 17, 1959, § 2, There are presently 115 licenses in effect in Harrisburg, and based on 1970 census figures, the quota would be 45.

       Hotels and restaurants may serve liquor between 7 a. m. and 2 a. m. the next day, Monday through Saturday. On Sunday, such licenses are restricted to sales between 12 p. m. and 2 a. m., and between 1 p. m. and 10 p. m. Pennsylvania Liquor Code, § 406 (a). Thus, such licensees may serve a total of 123 hours per week. Club licensees, however, are permitted to sell liquor to members and ' guests from 7 a. m. to 3 a. m, the next day, seven days a week. Ibid. The total hours of sale permitted club licensees are 140, 17 more than are permitted hotels and restaurants. (There is an additional restriction on election-day sales as to which only club licensees are exempt. Ibid.)

       The majority asserts that appellee Irvis had “standing” only to challenge Moose Lodge’s guest-service practices, not its membership policies, on the theory that his “injury . . . stemmed, not from the lodge’s membership requirements, but from its policies with respect to the serving of guests of members.” Ante, at 166. I submit that appellee’s standing is not so confined.
      A litigant has standing, for purposes of the Art. Ill “case” or “controversy” requirement, if he “alleges, that the challenged action has caused him injury in fact, economic or ptherwise.” Association of Data Processing Service Organizations v. Camp, 397 U. S. 150, 152. When Moose Lodge refused service to appellee Irvis solely because of his race, it imposed upon him a special disability apart from that suffered by the population at large. If this discrimination is chargeable to the State, Irvis has standing, not only to challenge. Moose Lodge’s guest policies — the immediate cause of the harm — but also to challenge the state scheme which authorized these policies. For an individual “subjected by statute to special disabilities necessarily has . . : a substantial, immediate, and "real interest in the validity of the statute which imposes the disability.” Evers v. Dwyer, 358 U. S. 202, 204.
      Moreover, once called into question, all discrimination authorized by the scheme is at issue. Just as a federal eourt may order an entire school desegregated upon the petition of a litigant representing only the fifth grade, so could the court below cure thé invidious •discrimination it found to exist in Pennsylvania’s liquor licensing scheme upon the petition of a litigant injured only by one aspect of that discrimination. The root evil was that Irvis was discriminated against with the blessing of the. State, not that he was discriminated against qua “guest” or “member.”
      In my view, moreover, a black Pennsylvanian suffers cognizable injury when the State supports and encourages the maintenance of a system of segregated fraternal organizations, whether or not he himself had sought membership in or had been refused service by such an orgánization, just as a black Pennsylvanian would suffer cognizable injury if the State were to enforce a segregated bus system, whether or not he had ever ridden or ever intended to ride on such a bus. Cf. Evers v. Dwyer, supra. American culture and history have been so plagued with racism and discrimination that it is clear beyond doubt that in such circumstances blacks suffer “injury in fact.” It “is practically a brand upon them, affixed by the law, an assertion of. their inferiority, and a stimulant to . . . race prejudice . . . Strauder v. West Virginia, 100 U. S. 303, 308. Their stake is analogous to the “spiritual stake” in First Amendment values which we have held may give standing to raise claims under the Establishment Clause and Free Exercise Clause. See Flast v. Cohen, 392 U. S. 83.
      Thus, whether state action be found in Regulation § 113.09, in Pennsylvania’s creation of a monopoly which operates to restrict access to places in which blacks may be served liquor, or both, appellee Irvis has standing to challenge all aspects of the discriminatory ' scheme.


author: Per Curiam. Mr. Justice Rehnquist,

text:
    TAYLOR et al v. McKEITHEN, GOVERNOR OF LOUISIANA, et al.
    No. 71-784.
    Decided June 12, 1972
   Per Curiam.

The 1970 self-reapportionment of the. Louisiana Legislature was challenged in this lawsuit on the dual grounds that it offended both the one-man, one-vote principle and the prohibition against voting arrangements designed to dilute the voting strength of racial minorities. After the United States Attorney General interposed an objection to. the election law change under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U. S. C. § 1973c, the District Court appointed a Special Master to prepare a court-imposed plan. The Master was verbally instructed to hold hearings and to devise a proposal to maintain the integrity of political subdivisions and to observe natural or historical boundaries “as nearly as possible.” He was also instructed, that “[n]o consideration whatsoever was to be given to the location of the residence of either incumbents in'office or of. announced or prospective candidates.” Opinion of Judge West, Civil Action No. 71-234,. Aug. 24, 1971.

The Special Master held four days of hearings, during which over 100 persons were heard. Proposed plans were received by him. No one was denied a hearing. He then submitted his recommendation to the District Court and after a hearing it was adopted by the court.

This dispute involves only four state senate' seats affected by the reapportionment. At the hearing held by the District Judge on the Master’s proposal, the State Attorney General presented a counterplan which differed from the 'Master’s only with respect to four senatorial districts in the New Orleans area. Although the judge found that both plans satisfied the one-man, one-vote requirement, he found that the two schemes differed in their racial composition of the four districts, as is set out in greater detail in the margin. Under the State Attorney General’s scheme, four “safe” white districts were proposed whereas the Master’s design would have created two districts of slight majorities of black voters. Also, under the counterplan each incumbent would continue to reside in his “own” district, whereas under the Master’s proposal the residences of the four incuinbents would fall evenly between the two districts to bé composed primarily of white voters, ensuring defeat for two of the four incumbents.

At the hearing the State Attorney General contended that the court’s plan would make hash of the traditional ward-and-precinct lines. The District Court acknowledged that there would be some departure from the historical patterns but concluded that the “ ‘historical’ boundaries of voting districts in Louisiana reflect [ed]. a history of racial discrimination. Adherence to the historical boundaries alluded to by objectors [had] been the prime reason why only two negroes [had] been allowed to sit in the Louisiana Legislature in the last 75 years.” 333 F. Supp.. 452, 462. The court found that the alternative proposal would “operate to diversify the negro voting population throughout the four districts and thus significantly dilute their vote” and would practically eliminate “the possibility of a negro being elected from any of the four districts,” while the court-approved plan would at least give blacks “a fair chance in two out of the four districts. . . \” Id., at 457. The court-approved plan sought “to protect the rights of the people while the primary purpose of the Senators’ plan appear[ed] to be the protection of incumbent office holders.” Id., at. 458. Accordingly, as mentioned, the District Court adopted- the Master’s recommendation.

Despite the District Court’s findings, however, the Court of Appeals reversed without opinion and adopted the Attorney General’s alternative division of New Orleans. The petitioners are the original plaintiffs and they now seek review of this summary reversal.

An examination. of the record in this case suggests that the Court of Appeals may have believed that benign districting by federal judges is itself unconstitutional gerrymandering even where (a) it is employed to overcome the residual effects of past state dilution of Negro voting strength and (b) the only alternative is to leave intact the traditional “safe” white districts. If that were in fact the reasoning of the lower court, then this petition would present an important federal question of the extent to which the broad equitable powers of a federal court, Swarm v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15, are limited by the colorblind concept of Gomillion v. Lightfoot, 364 U. S. 339, and Wright v. Rockefeller, 376 U. S. 52, 57, 67 (Douglas, J., dissenting). In reapportionment . cases, as Justice Stewart has observed, “the federal courts are often going to be faced with hard remedial problems” in minimizing friction between their remedies and legitimate state policies. Sixty-Seventh Minnesota State Senate v. Beens, 406 U. S. 187, 204 (dissenting opinion).

Because this record does not fully inform us of the precise nature of the litigation and because we have not had the benefit of the insight of the Court of Appeals, we grant the petition for writ of certiorari, vacate the judgment below, and remand the case to the Court of Appeals for proceedings in conformity with this opinion.

Mr. Justice Blackmun concurs in the Court’s, judgment.

Mr. Justice Rehnquist,

with whom The Chief Justice and Mr. Justice Powell join,

dissenting.

The short recitation of specific facts in the Court’s opinion makes clear that the issues in this case,- as viewed by both petitioners and respondents, are well developed in the record. The federal questions adverted to by the Court in its opinion are undoubtedly important pnes. They are either presented by the proceedings below on this record, or they are not; this Court, in exercising its certiorari jurisdiction, may wish to consider such problems as are presented in this case at this time, or it may not. While an opinion from the Court of Appeals fully explaining the reason for its reversal of the District Court would undoubtedly be of assistance to our exercise of certiorari jurisdiction here, it is by no means essential. I do not believe that the Court’s vacation of the judgment below with a virtually express directive to the Court of Appeals that it write an opinion is an appropriate exercise of this Court’s authority.

The courts of appeals are statutory courts, having the power to.prescribe rules for the conduct of their own business so long as those rules are consistent with applicable law and rules of practice and procedure prescribed by this Court, 28 U. S. C. § 2071. No existing statute or rule of procedure prohibits the Fifth Circuit from issuing a short opinion and order, as it has done here, or from deciding cases without any opinion at all. Cf. Rule 21, Court of Appeals for the Fifth Circuit. The courts of appeals, and particularly the Fifth Circuit, which has experienced the heaviest caseload of all the circuits, heed the maximum possible latitude to deal with the “flood tide” of appeals that , the “ever growing explosive increase” of federal judicial business has produced. See Isbell Enterprises, Inc. v. Citizens Casualty Co., 431 F. 2d 409 (CA5 1970); NLRB v. Amalgamated Clothing Workers, 430 F. 2d 966 (CA5 1970).

If there are important federal questions presented in this record, this Court should address itself to them. Instead of doing that, it calls upon the Fifth Circuit to write an amicus curiae opinion to aid us. I think decisions as to whether opinions should accompany judgments of the courts of appeals, and the desirable length and content of those opinions are matters best left to the judges of the courts of appeals. I therefore dissent from the order of vacation and remand.

       According to the District Judge’s opinion, the percentages of black registered voters in each of the four districts under each of the competing plans would be:

        Master’s Attorney General’s

        Plan Plan-

      District 2. 51% 37.6%
      District 3.'. 1,8% .25.7%
      District 4. 58% 44.3%
      District .5. 20% 24.0%

       It is possible, but unlikely, that the Court of Appeals believed that benign districting, although permissible, was achievable here with less violence to the parish’s historical district lines. But had that been its view presumably the. court would have remanded' for the construction of a less drastic alternative rather than simply directing the adoption of the Attorney General’s counterplan.

       Although similar in some respects, this case is not controlled by Whitcomb v. Chavis, 403 U. S. 124. To be sure, in both cases the District Courts were writing on clean’ slates in .the sense that they were fashioning court-imposed reapportionment plans. And, in each case the equitable remedy of the court conflicted with a state policy. (There the state policy favored multi-member districts whereas here the policy favors maintenance of traditional boundaries.) The important difference, however, is that ini Whitcomb it was conceded that the State’s preference for multi-member districts was not rooted in racial discrimination, 403 U. S., at 149. Here, however, there has been no such concession and, indeed, the District Court found a long “history” of bias and franchise dilution in the State’s traditional drawing of district lines. Cf. id., at 155.

       We, of course, agree that the courts of appeals should have wide latitude in their decisions of whether or how to write opinions.- That is especially true with respect to summary affirmances. See Rule 21, Court of Appeals for the Fifth Circuit. But here the lower court summarily reversed without any opinion' on a point that had been considered at length by the District- Judge. Under the special circumstances of this case, we are loath to impute to the Court of Appeals reasoning that would raise a substantial federal question when it is plausible that its actual ground of decision was of more limited importance.

       See, e. g., Lego v. Twomey, 404 U. S. 477, 482 n. 6 (1972).

       In fiscal year 1971, 2,316 new matters were docketed in the Fifth Circuit, 380 more than in any of the other circuits. This represented a 120%' increase in a 10-year period, although the number of circuit judges was increased by only 60%. Annual Report of the Director of the Administrative Office of the United States Courts 106 (1971). The increase in the business of the courts of appeals has been almost exponential. In 1961 the Fifth Circuit carried over only 278 cases that were undisposed of. By 1970 there' were 1,181 cases put over to the succeeding year. NLRB v. Amalgamated Clothing Workers, 430 F. 2d 966, 968 n. 4 (CA5 1970).