## Facts

- Simon Bouie and Talmadge J. Neal, Black college students, participated in a sit-in at Eckerd’s Drug Store in Columbia, South Carolina, by sitting in the store’s whites-only restaurant area and waiting to be served.
- After they sat down, a store employee placed a chain with a “no trespassing” sign, and the students remained seated quietly.
- The store manager and later a police official asked the students to leave; they refused and were arrested.
- Although charged with breach of the peace and criminal trespass, they were convicted only of criminal trespass under a South Carolina statute punishing entry onto another’s land after notice prohibiting entry.
- At the time of the conduct, the statute had been understood to reach entry after prior notice not to enter, not remaining on the premises after a request to leave.
- On appeal, the South Carolina Supreme Court affirmed by construing the statute to also cover remaining after receiving notice to leave, applying that construction to the students’ earlier conduct.

## Issues

1. Whether due process requires fair warning such that a state court may not retroactively apply a new, expanded construction of a criminal statute to past conduct.
2. Whether retroactive application of an “unexpected and indefensible” judicial enlargement of a criminal statute violates the Fourteenth Amendment by operating like an ex post facto law.

## Decision

- The U.S. Supreme Court reversed the trespass convictions.
- The Court held that the state court’s expanded reading of the trespass statute, applied retroactively, denied petitioners fair warning required by due process.
- The Court treated the retroactive judicial enlargement of criminal liability as functioning like an ex post facto law.
- The Court did not reach the equal protection challenge because the due process violation was dispositive.

## Legal Principles

- Due process requires fair warning of what conduct is criminal; this constraint applies to judicial interpretations when they define or expand criminal liability.
- A judicial construction of a criminal statute may not be applied retroactively when it is “unexpected and indefensible” in light of prior law.
- Retroactive judicial expansion of a criminal prohibition is constitutionally analogous to an ex post facto law and is barred by the Fourteenth Amendment’s due process guarantee.

## Conclusion

Because the trespass statute had not previously been understood to criminalize remaining after being told to leave, the retroactive application of the state court’s expanded construction convicted petitioners for conduct not clearly criminal when committed, violating due process’s fair-warning requirement.


Bouie v. City of Columbia, 378 U.S. 347 (1964)