Raymond Wayne Hill v. The City of Houston, Texas

Westheimer. Kelley approached Officer THORNBERRY, Before RUBIN and Hill began speaking Charles and him with HIGGINBOTHAM, Judges. Circuit his testimony about behavior. The about happened conflicting. what next is Ray- RUBIN, Judge: ALVIN B. Circuit that, mond Hill testified after a short con- appeal constitutionality This involves the Kelley versation between Officer under the First and Fourteenth Amend- Hill, attempted leave, Charles Charles city ments to the Constitution of a ordi- Kelley grabbed but Officer him by the prohibits nance that an individual from in began yelling shoulder and him. Ray- any opposing, molesting, abusing, manner that, mond Hill further testified after Offi- interrupting policeman in the execu- Kelley permitted leave, cer Charles to Kel- duty. tion of his An who individual has him, and, ley upon catching chased him and violating been arrested several times for being joined by partner, challenged his ordinance, and who has never been fight. court, Charles to The district how- guilty, challenges found its constitutionali- ever, disregarded testimony, this and found ty violating right freedom of Kelley approached “Officer Charles speech. plaintiff hold that We Hill began speaking with him.” Such standing challenge constitutionality finding supported by the record and is ordinance, and that the section in its clearly erroneous.1 present facially form is overbroad and un- point, Raymond At this yelled Hill to the constitutional. We therefore reverse the policemen, in attempt an admitted to divert judgment of the district court and remand Hill, their attention from Charles “Leave appropriate for a determination re- him Why you pick alone. don’t on some- lief to plaintiff. be awarded to the body your own size?” or words to that Raymond standing effect. Hill ap- I. proximately twenty-five feet from the offi- 34-ll(a) Section of the Code of Ordi- unaccompanied cers. His statements were Houston, Texas, nances of City pro- by any menacing threatening gesture, vides: although Kelley Officer characterized the Sec. 34-11. Assaulting or tone Hill’s as “loud” and “bois- interfer- ing policemen. with support terous.” There is no evidence to

(a) finding Raymond the district court’s It any person shall be unlawful for Hill assault, Kelley. abuses” at Officer strike or in manner “shout[ed] molest, oppose, interrupt abuse or According Kelley’s testimony, to Officer any policeman in the execution of his him, Raymond yelled after Hill duty, any person summoned to aid asked, you turned towards Hill and “Are making an arrest. interrupting my capacity me in official as a Violation of the Ordinance is a Class C Houston officer?” He testified that misdemeanor, punishable upon standing conviction who was with a crowd of him, Municipal in the City people put Court of the of Hous- his hands on his behind hips Why you pick ton a fine not replied, to exceed “Yes. don’t $200.00. Co., Reading Drilling Gypsum 1. See United States v. United States Williams v. & Bates Co., (5th Cir.1985). 92 L.Ed. 746 Kelley ny from other individuals who had somebody my size?” Officer been charged Raymond Hill and under the ordinance and other then arrested arrested There is violating him with the ordinance. Houston officers who have made ar- nothing ordinance, to show that Officer the record the court en- rests under the that, if he was Kelley had warned Hill judgment for the of Houston. tered officer, interfering he would be with an Raymond The court first found that Hill court, municipal arrested. After a trial standing challenge lacked the unconsti- guilty. Hill was found not tutionality of the ordinance. The court if Hill did on to hold even have went Hill Raymond This the first time was not standing, his claim for relief would still be violating ordi- charged had been denied because the ordinance was neither approached nance. Hill Officers broad, overly vagueness, ap- nor void mak- Stoffel and Strodman while were plied in an unconstitutional manner as to ing down a traffic arrest. first wrote February, Hill’s arrest in on the officers’ the identification numbers vehicle, and then walked to within arm’s

length of one of the officers on the side II. nearest the officer’s revolver. Officer We turn first to the issue of stand along. Instead Stoffel asked Hill to move Although recognized ing. the district court offi- complying, of Hill moved closer to the standing the usual rules of do not cers, arrested. He was later and was then necessarily apply First Amendment “when guilty. tried and found not stake,” are interests the court found standing Asy-

In Hill near the “that the Plaintiff has not succeeded Bookstore, claims,” raising any arcade in which valid First Amendment lum an adult basis, and, police suspected illegal standing activities were on this denied Hill to the pursue progress. When Hill observed vice his claim. nearby, the squad parked cars he entered standing litigate Hill’s the constitu- public over the bookstore and announced tionality must not con- of ordinance be system officers were address apparent fused with the merit or lack of present patrons and that should be challenge. “Standing” merit in his is one produce pa- prepared to identification. controversy” or limi- element of the “case announcement, upon hearing the trons fled jurisdiction, on federal court and fo- tation interfering Hill was arrested for party seeking primarily cuses “on the investigation. The case was subse- complaint a court.” get his before federal quently dismissed. standing” gist question of the “The October, 1982, alleged Finally, eight plaintiff months “such whether of the con- personal the incident in- stake the outcome after he was arrested for that concrete ad- volving Raymond troversy Hill was as to assure Charles sharpens presentation violating the ordinance when verseness which arrested for largely the court so upon the immediate area of issues which he refused leave investigat- depends the illumination of difficult two officers were where unknown, questions.”3 uncon- ing parked a car with an constitutional person charges inside. The were scious words, standing In other involves wheth- arresting dismissed when the officers later request plaintiff proper party is a er this appear Municipal failed to Court. particular issue. adjudication separate inquiry from whether hearing testimony Raymond from This is After fact, prevail. Kelley, party as testimo- should Hill and Officer well Cohen, Broadcasting Corp., 927-28 Flast v. — U.S.-, Cir.1983), aff’d, L.Ed.2d L.Ed.2d 114 Carr, 3. Baker v. KVUE, Austin Inc. v. proper the court to consider the likeli- ment for his in challenging conduct on the merits in statute, hood of success determin- he will refrain from engaging standing ing plaintiffs proceed.4 further in the activity. Society as a whole then would be the loser. Hill did not raise the constitutionali Thus, danger where there chilling is a city ordinance as a defense ty of the to his speech, free the concern that constitu- Instead, he prosecution under law. adjudication tional be avoided whenever action, separate independent brought a possible may outweighed by society’s prosecution, any pending or threatened unconstitutionality alleging having of the ordi interest in challenged. the statute seeking declaratory injunc therefore, nance and “Litigants, permitted are Specifically, alleges tive relief. challenge a statute not because their own irrespective prior of both own conduct rights violated, expression free application possibly and the constitutional but because of judicial prediction of the ordinance to him on earlier occa assumption very that the statute’s exist- sions, the law nevertheless is unconstitu ence cause others not before the challenged “the tional because ordinance court to refrain protected speech from substantially abridges on its face First expression.”6 rights.” Amendment important Protection free is so standing The usual rule in this situation plaintiffs that courts have allowed in a application is clear: “one to whom of a myriad declaratory injunc- of suits for statute is constitutional will not be heard to tive relief to raise First Amendment chal- ground impli- attack the statute on the lenges to alleged statutes because of their edly might applying also be taken as vagueness.7 overbreadth or persons other or other situations which Even heightened sensitivity with the application be unconstitutional.”5 federal determining courts use in a liti challenge When the is based on the First gant’s standing Amendment, however, challenge a statute on different considera- explained grounds, First Amendment apply. by Supreme tions As certain thresh requirements Court: old must be satisfied before court consider such a claim. Even where First Amendment chal- requirements These lenge brought by clearly are most set actually could be one engaged protected forth in activity, City Angeles there is a Los Lyons.8 v. of There, possibility punish- rather Lyons sought than risk damages arising out 490, Seldin, 500, lage Schaumburg 4. See Warth v. 422 U.S. 95 S.Ct. v. a Better Envi- Citizens of 2197, 2206, (1975); KVUE, ronment, 620, 633-35, 826, 45 L.Ed.2d 343 Inc. 444 U.S. 100 S.Ct. 922, Broadcasting Corp., v. Austin F.2d 834-35, 709 927 (1980); 63 L.Ed.2d 73 Babbitt v. United — -, Cir.1983), aff'd, U.S. 104 S.Ct. 289, Union, Farm Workers National 442 U.S. 1580, (1984); White, 80 L.Ed.2d 114 v. O'Hair 298, 2301, 2309, (1979); 99 S.Ct. 60 L.Ed.2d 895 680, (5th Cir.1982) (en banc). 685 See Oklahoma, 601, 611-12, Broadrick v. U.S. 413 93 Miller, generally Wright, Cooper, 13 C. A. & E. 2908, 2915-16, (1973); S.Ct. 37 L.Ed.2d 830 (1984). Federal Practice and § Procedure 3531 479, 486-87, Pfister, Dombrowski v. 380 U.S. 85 1116, 1120-21, (1965); S.Ct. 14 L.Ed.2d 22 17, 21, Raines, 5. United States v. 362 U.S. 80 KVUE, Broadcasting Corp., Inc. v. Austin 709 519, 522, (1960). S.Ct. 4 L.Ed.2d 524 See Broad — 922, (5th Cir.1983), aff'd, F.2d 927-31 Oklahoma, rick v. 2908, 2915, 413 U.S. 93 S.Ct. -, 1580, (1984); 104 S.Ct. 80 L.Ed.2d 114 (1973) 37 L.Ed.2d 830 and cases Holy Spirit Association World cited therein. for Unification of (N.D. Christianity Hodge, F.Supp. v. 582 Secretary Maryland Joseph 6. State v. H. of of Tex.1984). Grace, United States v. 461 U.S. Cf. —Co., U.S.-,-, Munson 104 S.Ct. 736, (1983); 75 L.Ed.2d (1984), quoting 81 L.Ed.2d 786 Broadrick Jacksonville, v. Erznoznik of Oklahoma, v. 2916, S.Ct. 45 L.Ed.2d 125 (1973) (footnote omitted). See, 8. 461 U.S. L.Ed.2d e.g., Secretary Maryland State v. —Co., U.S.-,-, Joseph H. Munson 2839, Vil- injuries subject he had received from a choke manner that will him to further by Angeles po- hold administered the Los arrests under the ordinance. has Lyons sought declaratory lice. also relief shown, therefore, that he faces more than injunction against city prohibit- and an “subjective apprehension” repeated in- ing choke holds all but those situations jury; he faces a “credible threat” of fu- when there is the immediate threat prosecutions ture criminal under the ordi- deadly against use of force the officer. speculative nance that is more than a mere possibility.15 therefore, and remote Supreme The Lyons Court found lacked clearly standing challenge the consti- standing episode because the one “does tutionality of the ordinance on First nothing to a real and immediate establish grounds. Amendment again stopped threat that he would for a violation, offense, traffic or for other

by illegal- an officer or officers who would

ly choke him into unconsciousness without III. any provocation or resistance on his We now consider Hill’s claims that part.”9 34-11(a) Section is unconstitutionally overbroad, vague, specifically pointed applied out that w;as Lyons’ standing” equitable “lack of to seek unconstitutional manner to effectuate his speculative relief rested “on the nature of February, arrest in 1982. Because we find again experience his claims that he will unconstitutionally the ordinance to be over- injury practice as the result of that even if broad, we do not reach Hill’s other two continued.” The Court also relied on its arguments.

earlier decisions in v. Golden Zwickler11 “An overbroad statute is one that is de- Mattis,12 in which it held Ashcroft signed to punish burden or activities which standing challenge a statute was are not constitutionally protected, merely by the fact that established plaintiff single previous includes scope had on a occasion within its activities [that] application, been harmed the statute’s which the First Amend- absent a realistic likelihood statute ment.” An overbroad statute is invalid would, future, applied in the be to his own face, merely applied, not as detriment.13 cannot be enforced until it is either re- drafted or narrowly by construed more findings by The record and of fact properly This, authorized court.17 in ef- requi- district court show that Hill has the fect, speech-limiting removes the “sword of standing in Lyons. sites to defined Hill Damocles” from over the heads of those violating has been arrested for the ordi- who engage expression wish to times, nance four once less than six months protected Amendment, by the First but addition, after he filed this suit. In who are deterred their inclination to repeatedly steadfastly asserted speak they when learn that what seek that he intends to continue to act 106, Lyons, supra, Id. at 8, 14. 103 S.Ct. at 1667. 9. 461 U.S. S.Ct. at at 107 n. 1668 n. 8. 10. Id. 103 S.Ct. at 1669. Lawson, 15. Kolender v. n. 11. U.S. 22 L.Ed.2d 113 103 S.Ct. 1857 n. 75 L.Ed.2d 903 (1969). Wooley Maynard, v. (1977). 12. Nowak, 16. J. Young, R. Rotunda & J. Handbook on Constitutional Law 722 Lyons, supra, 461 U.S. at 103 S.Ct. at Gunther, 1666-67. Accord Carter v. Orleans Parish Public 17. G. Cases and Materials on Constitu- Schools, (5th Cir.1984). 1980). tional Law 1186-87 ed. expression must be both real and substan- by unlawful the over- rendered say is to tial.26 provisions of the statute.18 broad in Broadrick v. Supreme Court The Court found all of these criteria to Oklahoma19, application warned that applied be met. It noted that the statute to “strong medi doctrine is the overbreadth persons employed by, with, all or connected employed “sparingly to be cine” and it is theatres, and drive-in forced theatre own- In only last resort.”20 order as a offerings ers either restrict their movie statute, to invalidate a employ the doctrine protective provide fencing.27 or to This therefore, of a statute “the overbreadth type regulation,28 of content-based al- real, only be but substantial must though protecting “captive aimed at audi- well, in relation to the statute’s judged promoting highway safety, ences” and sweep.” This standard

plainly legitimate imprecisely pass too drawn to First Amend- by regardless of whether a law its applies scrutiny. ‘pure’ apt ment movie is “[A] speech: conduct or proscribes terms just distracting ‘im- be drivers as an must be substantial before overbreadth one, pure’ just upon and to be as intrusive facially to be court hold statute privacy unwilling captive of an invalid.22 imper- audience.”29 Because the ordinance requirements Despite stringent that missibly upon intruded an identifiable and satisfied before a statute will be must be speech rights pro- substantial class of free invalid, facially down as over- Amendment, struck by tected the First the Court challenge a viable doctrine remains and, breadth held the statute to there- be overbroad impinge on activities fore, to laws invalid. Amendment, and it has been the First Similarly, Village Schaumburg v. times since applied by the Court several Environment,30 the Citizens a Better

Broadrick. Erznoznik Jack- for Court found unconstitutional an ordinance sonville,23 example, Supreme Court prohibiting door-to-door solicitation of con- challenge validity sustained a to the facial organizations tributions charitable prohibiting of an ordinance drive-in movie percent did not use at least 75 of their public from theaters with screens visible receipts purposes,” for “charitable such showing containing streets films nudi- from purposes being defined to exclude solicita- ty.24 The reiterated Broadrick’s salaries, expenses, tion and other adminis- warning that the overbreadth doctrine expenses. trative applied “caution and re- would be “unnecessary interference straint” avoid The Court held that the ordinance was program,”25 and regulatory with a state proffered jus- It found that the overbroad. facially deemed a statute protecting public tifications of from invalid, legitimate its deterrent effect on insuring privacy fraud and residential were 134, 231, 205, 2268, 18. See Arnett v. Kennedy, 416 U.S. 94 23. 422 U.S. S.Ct. L.Ed.2d 125 45 (1974) (Marshall, (1975). S.Ct. 40 L.Ed.2d 15 Nimmer, dissenting); Speech J. M. Freedom of (1984). § 4.11[A] 24. Id. at 95 S.Ct. 2271. 2908, 601, 216, 19. 413 U.S. 93 S.Ct. 37 L.Ed.2d 830 25. 2276. Id. at 95 S.Ct. at (1973). 26. Id. 613,

20. Id. at 93 S.Ct. at 2916. 217, 27. Id. at S.Ct. at 2277. 615, 21. Id. at S.Ct. at 2918. J., 218, (Douglas, 28. at 2277 con- Id. at 95 S.Ct. curring). Ferber, 22. See New York v. (1982). 73 L.Ed.2d 1113 Accord Fer Estelle, 29. guson Cir. Id. v. 732-33 Galveston, 1983); Basiardanes v. of (5th Cir.1982). generally 30. F.2d See 1216-17 Nimmer, 4.11[B], supra, at § M. inadequate clause, however, the Al- The sustain ordinance. next separated legitimacy though it did not discount the of the conjunction “or,” from first the interests, governmental these the de- any person makes “unlawful for ... “sufficiently termined that could be any oppose, molest, manner abuse or [to] served less measures destructive of interrupt any policeman in the execution of First Amendment interests.”31 duty____” (emphasis supplied). This permits many impermissible clause applica- IV. statute, applications tions of the sig- discussing These cases and others nificantly compromise traditional First substantial under overbreadth Broadrick’s Amendment activities. standards,32 approach dictate the we must literally proscribed The conduct by the analyzing alleged take in overbreadth ordinance includes much that completely of the ordinance. We must first determine dictionary The “oppose,” lawful. defines protected by not whether Hill’s conduct is include, example, “to stand in the the First Amendment but whether the stat of; way obstruct,” hinder or “to have an applied ute to others not before opinion adverse concerning” or “to offer the court whose activities are constitution arguments against.”34 “Molest” is defined This, turn, ally protected. requires us to as, bother, with, “to annoy.”35 interfere potential applications consider the of the “Interrupt” include, is defined to stop “to law, adequacy City’s justifica person] in saying the midst of doing [a having tions for ordinance its something esp. by interjected form, re- present possibility serving and the of Applying mark.”36 these City’s interests definitions37 to narrowly with more ordinance, the second clause of the Following analysis, drawn law. this line of it is 34-ll(a) we hold that clear Section is unconstitu that the statute affects a range broad tionally overbroad. of activities. If a pleads mother policeman with a “spare my baby” while The ordinance makes it “unlawful policeman arrests her son in front of assault, strike, any person inor home, “opposed” their she police- molest, oppose, interrupt manner abuse or man in the execution his duties. If a any policeman in the execution of his policemen tourist sees two on the street duty.” protects police first clause citizen, questioning stops to ask them being man from assaulted or struck in the hotel, directions to a the tourist has “inter- performance duty, clearly ap of his rupted” the officers in the execution of plies only physical conduct. This clause person their If duties. in a crowd at a properly of the ordinance “covers a whole political continually begs po- function range easily identifiable and constitu barricade, him conduct,”33 past liceman to let tionally proscribable ... person policeman has “molested” the presents no real and substantial over- problems possible applica breadth execution of his duties. The district court tions. found that Officer warned 31. Id. at 100 S.Ct. at 836. ed States Civil Service v. Commission National Carriers, Association Letter 580- Secretary Maryland Joseph See State —Co., U.S.-, H. Munson City L.Ed.2d 786 Members Council v. of College Dictionary 34. The Random House 933 — Vincent, -, Taxpayers U.S. 104 S.Ct. for (revised 1975). ed. 2118, (1984). 80 L.Ed.2d 772 Schad v. Bor- Cf. 61, ough Ephraim, Mount U.S. 452 101 S.Ct. of 35. Id. at 860. 2176, (1981). generally L.Ed.2d 68 671 See G. Gunther, Cases and Materials on Constitutional Id. at 698. (10th 1980). Law 1187 ed. Price, 174, (5th 733, 760, v. F.2d 37. See Kramer 712 179 Levy, 33. Parker v. 417 U.S. 94 S.Ct. Cir.1983) (Rubin, J., 2547, 2563, dissenting). (1974), quoting 41 L.Ed.2d 439 Unit- 1164 voicing objection interfering policeman nonprovocatively with a in for might be

he duties, ordi- obviously highly of but the to what he ... the execution [feels is] warning requires no such and its offi- questionable by nance a [conduct] 40 permit charge language would be cer.” any warning advance lodged without City’s interests can served ade- The be annoyed, hence “mo- against anyone who quately by narrowly a more drawn statute lested,” policeman. precisely tailored more towards the conduct short, of the second clause Section proscribe. example, City wishes to For 32-11(a) mere well encompasses verbal as prohibits “assaulting, resisting federal law situation, In such a physical as conduct. It impeding” certain federal officers.41 unquestionably the statute at- “where ordinance, city the Houston is similar to conduct, the protected sanctions to taches qualifies proscribed conduct with but it deter that likelihood that the statute will “forcibly.” the adverb The statute thus ordinarily sufficiently great to conduct is persons physical applies only to who use 38 attack.” The ar- justify an overbreadth assault, resist, oppose person force to encompassed by conduct eas of by covered the section.42 Mere verbal re- “margin- are more than mere the ordinance proscribed by sistance is not this section.43 applications al in which the statute would dissenting, Higgin- While our brother values.”39 infringe on First Amendment botham concedes that the ordinance is over- range pro- They comprise a substantial of broad, only and differs with us as speech and verbal communications tected substantiality admittedly of its unconstitu- present deterred wound, Like tional reach. Mercutio’s wording of the statute. abridgment deep constitutional is not so put for the ordinance for- The rationale a well nor so wide as a church door but it is City of Houston does not ward penetrating enough to be fatal. sweep. legitimacy of justify its broad The ordinance would not be invalid City’s “facilitating police interest possible for if it were to con overbreadth beyond question. This interest duties” is narrowly impact strue it so as not however, itself, in and of is not of such courts, protected speech. Federal how overriding importance that can serve as ever, ‘super’ legisla “do not sit as a state that permits the basis for an ordinance ture, impose people merely own policemen to arrest [and] [their] them, narrowing construction onto the ordinace” speaking purely verbal conduct already if the state courts have not fully protected by the First Amend- done Here, “Surely punished any ment. one is not to be so.44 there is no indication that 38. Members $5,000 City Taxpayers Council v. imprisoned not more than not more of — — —, 19, Vincent, U.S. n. 104 S.Ct. years, than three or both. 2118, 19, (1984), citing 2126 n. 80 L.Ed.2d 772 205, 42. See United Mathis, 415, States v. Jacksonville, F.2d 579 418 City v. 422 U.S. Erznoznik Cir.1978); Camp, (7th United States v. 2268, 541 F.2d 217, 45 L.Ed.2d 125 95 737, (8th Cir.1976) 739 and cases cited therein. (1975). 39. Parker v. 43. See United States Levy, Cunningham, v. 417 U.S. 94 S.Ct. F.2d 509 Glover, 2547, 2563, (1974). (D.C.Cir.1975); United States v. 963 (D.Ark.1970). F.Supp. 321 594 40. Norwell v. Cincinnati, 14, 16, City U.S. 187, 188, (1973). 44. Beckerman v. 94 S.Ct. 38 L.Ed. 170 Tupelo, City Mississippi, Cir.1981), citing Gooding v. F.2d 41. 18 U.S.C. pertinent part, provides, Wilson, § follows: See also v. L.Ed.2d 408 Erznoznik Jacksonville, 205, 216-17, assaults, resists, opposes, forcibly Whoever Accord impedes, intimidates or interferes with Director, Depart Gormley Connecticut State designated person 114 of this title in section Probation, (2d ment per- n. engaged while in or on account of the denied, duties, Cir.), cert. shall be fined formance of his official

1165 I ger the doctrine of overbreadth. Because limiting construc- placed a court state indeed, application this of the ordinance to be ordinance, and, City find tion on the and no substantial over- constitutional that this court suggested one has not itself shown, ordinance to I of the In- breadth authority do so. might use had potentially leave troublesome cases would categorically that stead, City asserts day. for another broadly more “does not reach the ordinance protect reasonably necessary to le- than interests.” Our governmental gitimate homosexual, Hill, forty- a is a Raymond thus concedes in dissent

brother Houston, year old resident of Texas. read, undeniably over- three ordinance is “the years peni- in the state serving five broad,” argues should sua After that we but convictions, burglary Hill re- tentiary for possible sponte proffer constructions in 1975 and formed the turned to Houston its It is not with- limit overbreadth. would He has since been a municipal Gay ordi- Political Caucus. power to construe in our homosexuals, rights for by state vocal advocate not limited nances that have been Board of Directors for the courts, beyond prov- and sits on the certainly it is our employment In to his urged Caucus. addition interpretations not ince to volunteer Overbreadth, radio shows for a local paralegal, a he does there- by City itself.46 community broadcasting station by narrowing service fore, a cannot be avoided and, press badge.1 accordingly, carries construction. reasons, challenged arrest of Feb- hold that Before his now foregoing we For the 14,1982, Hill had arrested twice 32-11(a) unconstitutionally ruary over- been Section ordinance, violating disputed al- broad, entirety. in its and therefore invalid He had though he convicted. court is there- was never judgment of the district had, fact, filed REVERSED, REMAND- read the ordinance and the case fore challenging federal court appropriate suit a Houston ED for consideration suit dis- constitutionality. That was plaintiff. to the to be awarded relief any decision. While it is missed without recites, HIGGINBOTHAM, true, that at the majority as the Circuit PATRICK E. Hill February 1982 arrest time of the Judge, dissenting: if he that he would be arrested was not told application of persuaded that the I am interfering ongoing persisted in did not tread ordinance here the Houston precisely told investigation, he had been right speech, free Raymond Hill’s of an earlier arrest. that at the time majority escapes by use of the inquiry the short, ordi- as familiar with the doctrine, persuaded and I am overbreadth Kelley, if not more so. nance as Officer regulation impermis- is not that the as well happen- this confrontation with the Nor was sibly My difference overbroad. deliberately he Hill testified that by in the main a differ- stance. majority is fueled making engaged in ar- Ray- officers context in which confronted perception of the ent that on one speech oc- rests. There was also evidence assertedly protected mond Hill’s arrests, Hill had taunted trig- prior of his curred, by greater reluctance to Dillard, suggest that Hill is these facts not to 1. I surface Walker v. denied, (4th Cir.), any greater First Amend- or lesser entitled cert. F.2d them, generally protection but in order See because of L.Ed.2d 136 ment S.Ct. Nimmer, picture provide complete the indi- supra a more § 4.11[D]. M. Kelley and Holt- Officers vidual who confronted brought out at trial sclaw. These facts were J., (Higginbotham, at 1170 F.2d dissent- City, by effort to show that in an ing). target local likely harassment he was however, undisputed, that neither police. It is Jacksonville, 46. See Erznoznik reputa- knew Hill or his nor Holtsclaw 2276 n. 216 n. they arrested him. tion before L.Ed.2d 125 away, twitching making one find and all arresting officer that no would kinds of violating Hill guilty strange him the ordinance. noises from his throat. perceived by what he to be was disturbed ex-

police harassment of homosexuals and stop. I him I him told told to come response to such conduct plained his walking. kept back and he I walked as follows: kept telling him him stop behind and Well, get rather that I arrest- I would kept walking, and he so I reached out whose careers can be dam- ed than those turned, and took him the arm and aged; get I rather that I arrested would him, stopped turned him around. than those whose families wouldn’t un- matters, complicate began To a crowd derstand; get I rather that I ar- would forming Kelley proceeded in- to further spend rested than those who couldn’t terrogate this unusual detainee. As he long jail. prepared I am re- time it: described spond any legal, nonagressive or non- way, any illegal police activity, violent me; forming I felt a crowd around there time, any at under circumstances. people walking up was numerous and they down the sidewalks and were cross- Thus, sophisticated it was a and confron- ing they slowing the street and were tation-minded Hill that came to the street down, converg- but all seemed to be scene the Montrose section of Houston ing centering right in an area behind February heavily on 1982. Montrose is me here on the corner. populated gay com- members of munity busy “cruising” and a area for point Raymond It was at this Hill prostitutes, Indeed, male and female. al- picture, standing entered the in front of the though shortly midnight, it was after crowd, it, according “in control” of to Kel- heavy still had area traffic. ley, approximately eight seven or yards away spot from the Kelley where Kelley

Officer testified before the feder- standing. Kelley and the black man were court al below that he confronted a black “heard Mr. Hill holler to me to him male leave attempting who had been to direct alone, anything wrong,” he hadn’t done busy traffic on Westheimer Boulevard. Kelley Kelley ignored challenge When ordered the man to and turned the side- identification, investigation. Immediately walk and asked for back to his Hill the man it, began making gutteral yelled again, Kelley sounds and twitch- described “[this] ing loud, Kelley ..., motions which time later learned ... more more boisterous T product said, disability. Kelley you were of a As him Why pick leave alone. don’t ” described the man: somebody your black Kelley own size?’ in- terpreted the remark as somewhat threat- very strange He was a individual. His ening because of the tone Hill used: extremely actions were erratic “[It loud, very strange. very strong was voice. A twitching He was all of the a] time____ commanding words, voice. other body jerk His whole would requesting wasn’t speaking while he was I wasn’t—he me to leave and didn’t know alone; demanding what to make of I him he was that I that. didn’t know if leave rapport he was him about to have a seizure or if he alone.” Hill’s with the crowd being Kelley perceived was insolent or I no to the threat what. had contributed because, view, Kelley’s idea what to think of it. the situation was likely permitted to escalate if Hill Before could determine the cause challenge. continue his behavior, began for the black man’s he walking away. Kelley explained: Accordingly, Kelley asked whether him, interrupting Kelley he was in his official speaking

So while I was mind policeman. response, in just seemed to he duties as a Hill’s wander and seemed to would, view, if Kelley’s suggested that Hill away. turn and walk still had his I.D. hand, necessary, physically interrupt the investí- my walking ... and he was me, gation: directly looked Hampshire, he “[H]e placed hips his hands on his and in a very (1941). L.Ed. 1049 interpret Houston’s manner, said, yes. Why you bold don’t prohibition on police interference with offi- pick somebody my size?” It was at this restriction,3 cers as such a and accordingly, point violating that arrested Hill for application by test its balancing the inter- the ordinance.2 ests at stake. Konigsberg See v. State California, Bar 366 U.S. 81 S.Ct. II (1961). 6 L.Ed.2d 105 Compare id. at One can speech view this difficult case (Black, 81 S.Ct. at J., 1010-1022 through either prisms of two classic of dissenting). The applied test to be is clear. First argued Amendment law. It can be government We balance interests fur- balancing city’s terms that the interest thered suppression this speech insuring the safe execution of lawful ar- against speech affected, interests con- outweighed any speech rests interests of sidering significance both the gov- of the v. New Hampshire, Cox 312 U.S. objective ernmental and alternative forums (1941), 61 S.Ct. 85 L.Ed. 1049 and it for dissemination of protected expres- well, argued terms, can be in categorical See, sion. e.g., v. International Heffron engaging that Hill was not Society Consciousness, Krishna Inc., speech. Chaplinsky Hampshire, v. New 452 U.S. 101 S.Ct. 315 U.S. 86 L.Ed. 1031 (1981). seen, As will be the distinctions between the two analysis lines of Applying have part test, the first it somewhat, been blurred but under either cannot be City doubted that the of Houston approach I would conclude that the ordi- legitimate has a interest in prohibiting in- nance was constitutionally applied to Hill. police terference with its officers while they are pursuing investigations lawful or -1- executing lawful arrests. City’s inter- I do not doubt that the First Amendment ests here are not limited to facilitating law protects right express Hill’s publicly his enforcement; pro- extend as well to opposition police actions such as Officer moting safety of its officers and the Kelley’s interrogation of the black man. safety persons of those lawfully who are right Nor is that limited to communications detained or arrested. I do suggest not passers by; addressed to it peti- includes citizens must public submit to authorities police themselves, tions directed to officers lambs, like docile Douglas for as Justice cop undeniably for the on the street func- observed, has “at the constitutional representative government. tions as a level speech sedative; need rights speak But our not be a petition are can be absolute, disruptive.” may constitutionally and Colten Kentucky, be limit- 104, 122, pursuant regulations ed that are con- 32 L.Ed.2d time, (1972) only J., tent-neutral restrict (Douglas, dissenting). But place speech. and manner of Cox v. New the context of investigations arrests and 2. Of course Hill’s City conduct, version of the incident applies extent the it at all to verbal different, somewhat but the court below found any particular is not a message, restriction on Kelley’s version of the incident to be more cred- public whether addressed to the au- Although ible. he did not make detailed find- Rather, thorities. the ordinance restricts inter- Judge ings, DeAnda did conclude that Hill’s lan- ference with officers in the course of guage provoked was abusive and that he duties, rights execution of their making pre- officers into the arrest. I am not only speech might are limited to the extent that pared findings to hold that these factual be used to create such interference. Since the erroneous; clearly amply supports the record content-neutral, proper ap- restriction is it is these conclusions. ply balancing test. v. International Heffron Consciousness, Inc., Society For Krishna possible I address constructions of the ordi- nance sary in Section III. For now it is neces- infra ordinance, point only out that the to the challenge, one which ordi- one, annoyanc- that Hill’s challenges a serious harmless, appeared seemed appropriate narily have be an might otherwise

es authorities, threatening, quite offered as it was in front opposition to voicing means converging Kelley explained may well of a crowd. present risks that setting, in that apprehensive he “felt towards the the constitutional when unacceptable of Mr. Hill” and that he Surely in that context crowd because is struck. balance insuring perceived that its the crowd as threat to his own interest in detainee, safety, in- that of his and that of his work without pursue their can officers issuing a partner who was traffic citation terference, caused force or whether then, nearby. surprising, It is not that speech. unwilling simply turn Kelley was his nearly a identical addressed The Court pursue investigation. on Hill and his back Kentucky, supra. v. situation Colten contrast, speech disorderly con- In interests at issue under a was arrested Colten First, remaining compelling. are far from there he insisted on here when duct statute citation, despite many places times and where the ac- a traffic at the scene of may Although tions of law enforcement officials requests that he move on. police challenged; challenges to restrict made in Amendment that the First Colten claimed investigations the context of arrests or man right to advise the who protected his significantly opportunity does not limit the and his efforts to getting the citation was speech. importantly, for such But more I for the driver help arrange transportation require do not construe the Constitution the state courts found passengers, and his adopt a and atti- an officer to “wait see” aggravate, only purpose was to that his interrupt investiga- tude when threats police as harass, inconvenience and Certainly there tion or arrest. is little rea- ticket, accordingly sus- they issued the and protect speech only purpose son to whose Supreme his conviction. The tained is, here, police to distract a officer in the affirmed, dismissing and in the First performance of his duties. Hill conceded defense stated that: Amendment trying at trial that he was not to address right had no constitutional [Colten] persuade Kelley to release the crowd ticket or the issuance of a traffic observe pur- the black man. He admitted that his issuing in conversa- engage officer Kelley’s pose was to divert attention from legit- has a tion at that time. The state his detainee and to substitute himself as enforcing its traffic imate interest necessary the arrestee if because Hill and its officers were entitled to laws might feared the man black become possible from interfer- enforce them free little, police There if victim of violence. bystanders, interruption ence from any, support factual basis to the contention third-party interest claiming even those however, present, that such risks were and Here the had the transaction. speech assertion does not Hill’s bolster apprehension cause for that a roadside prevention Indeed if the claim. violence and automo- strip, persons crowded with purpose, any was Hill’s contention that he biles, might expose entourage, pass- disseminating was information to the motorists, ing and to the risk of rings crowd hollow. accident. short, In conclude that in this would at 1957. Id. at context, particular Hill’s arrest for his Hill present when Similar risks were There is no speech was constitutional. Kelley the Montrose challenged Officer speech plainly that is not out- interest here Whether or not would streetcorner. by City’s weighed interests. actually had have assaulted Officer unimportant he not been arrested is -2- —his sufficient, that Hill’s Relatedly, I would conclude disruption threatened terms, was, be, categorical not enti- prevent Kelley from was intended to In protection. He tled to First Amendment pursuing investigation. testified case-specific sensitivity, tive of the Court’s Murphy explained Justice Chaplinsky balancing also contains an element of protect speech but does not the Constitution interests, speech and state if in different irrespective of its content: settings, example, terms. other nar- There are certain well-defined racketeer,” epithet by “Goddamned used pre- speech, the rowly limited classes of Witness in Chaplinsky, the Jehovah’s have punishment of which vention and response, provoked have no much any thought to raise constitu- never been one, fighting and there less a would have the lewd problem. These include tional speaker. no cause to arrest the been libelous, obscene, profane, insulting ‘fighting’ words— and the arguably problem, This definitional in- very their utterance those which Chaplinsky because the construct can be incite an immediate injury flict or tend to applying only seen as to cases where the the breach. It has been well breach of presented risk of violence or other harm is utterances are no es- observed that such words, leaving the choice of cases such ideas, exposition of part any sential predictive inquiry as this to the of a “clear slight social value as and are of such danger” analysis present of the words step benefit to truth Ohio, Brandenburg laid context. See clearly out from them is be derived 444, 1827, 23 L.Ed.2d 430 U.S. interest in law and weighed by the social (1969). context, But even when we look to morality. analysis Chaplinsky plays the a vital role. 571-72, Where, here, at 769. purpose speech 315 U.S. at S.Ct. the the of is shown to be interference with a analysis entails the risk Chaplinsky The by challenging fight, him officer First which, speech al- giving short shrift to of only Amendment values are attenuated provoking, none- though offensive and is are, analysis. elaborated Such statements pro- speech-laden. speech That is theless view, my slight in “of such social value as a challenging cannot alone reduce vocative step any may to truth that that benefit be exchange ques- protection. Heated clearly outweighed by from them is derived tioning authority part parcel morality.” in the social interest law and subscription to Milton’s the courts’ John Chaplinsky, 315 U.S. at 62 S.Ct. at ideas, marketplace regardless ideal of a speech, I 769. would conclude Hill’s accuracy subscrip- of that of the historical considering both its content and the con- States, tion. v. 250 U.S. Abrams United utterance, text of its was not entitled to 616, 624, 63 L.Ed. 1173 S.Ct. protection. First Amendment See FCC v. J., (1919) (Holmes, dissenting); Terminiel- Foundation, 742- 1, 69 S.Ct. Chicago, lo v. 337 U.S. Pacifica 57 L.Ed.2d 1073 remains, (1949). There none- L.Ed. 1131 theless, speech narrow which is band content or value as to be so without social Ill unprotected. challenged Nor do I find the ordinance band, despite distinguish this We narrow unconstitutionally provides: It overbroad. categorical ap- seeming crudity of the Assaulting interfering Sec. 34-11. wholly proach, approach is not because policemen. with Chap- categorical operation. Under the (a) person any It shall unlawful for be currently by the linsky analysis, as defined assault, strike or in manner Court, as content we look to context well molest, interrupt any oppose, abuse or See, “fighting” e.g., Lew- to define words. duty, policeman the execution of Orleans, 913, 92 S.Ct. is v. New 408 U.S. making any person summoned aid (1972) (opinion 33 L.Ed.2d added). (emphasis an arrest Powell, J.). necessary The look to the con- provision majority concludes that the a look The speech, text of the that must follow amount of themselves, on its face bans a substantial only is not reflec- at the words courts application until the state has no accordingly holds protected Although actually give it some construction. do unconstitutional. ordinance overbroad, Thus, majority’s I would aversion undeniably I do not share the ordinance majority limiting heavily sponte, possible than does sua proffering, more stress command Contrary of the Court’s importance for the ordinance. constructions Oklahoma, majority, v. suggestion Broadrick would to the (1973), a construction of the ordinance impose not abridge a substantial Rather, must restriction in- City. I believe that upon the activity before the protected amount plausibility of constructions quiry into the The ordi- is offended. First Amendment to the City might make is relevant that the subject to constructions possibly nance Indeed, substantiality. inquiry into both overbreadth, so would limit its which and our aversion to principles of federalism least, said to be it could questions they when deciding constitutional substantially I would leave overbroad. suggest ought that we can be avoided applications of possible unconstitutional possible, constructions where proffer such they if resolved and when statute to be the state courts will con- and assume that arise. fact “consistently the ordinance strue Time, Inc. constitutional command.” See -1- rooted in The of overbreadth is doctrine majority appar- conduct the notion that where recognize possibility ently refuses to by the Amendment be chilled the First may yet limit the the state courts statute, adju- sweep of an overbroad literal if are not sweep of the ordinance by case basis which dication on a case opportunity. denied the problems is un- constitutional avoid suscep- is the ordinance on its face While possible of acceptable. But consideration in troubling posed constructions tible to the that limiting for a statute constructions it need not be majority’s hypotheticals, the potential some or all of its might alleviate could, The state courts for so construed. always appropriate, even problems is requirement example, imply an intent challenge is one of the constitutional where prohibit only as to that the ordinance so See, Broadrick, 413 e.g., overbreadth. non-verbal, conduct, that is in- verbal 617, majority The 93 S.Ct. at 2918. U.S. at actually does interfere with tended to and any attempt to limit the eschewing errs trivial, Thus in- ongoing police activities. sweep City’s the ordinance. of “interruptions” unintended significant, majority is correct that the Although the might proscribed. Nor need not be yet put limiting a Texas have not courts of applicable to all construed as ordinance be it challenged provision, construction sug- clause functions—indeed its last police to do so they have refused is not because intended gests that the ordinance be op- they yet have not had an but because only in the context of arrests operate so. Those who violate portunity to do certainly could be limited to detentions. It municipal courts tried in the ordinance functions, public chal- so that lawful Houston, have recent- City which for police activities lenges to unauthorized is of record. There ly made courts been would be unaffected. right from those appeal now give regulation attempt do county court and to the criminal courts here, I think it definitive construction appeal. to the state courts thereafter assumed, purposes may safely be 1(a), 7, art. 1200cc See Tex.Rev.Civ.Stat. §§ substantiality of the inquiry into the our (Vernon that we Supp.1985). The notion overbreadth, it be that could ordinance’s con- by authoritative state court are bound limited, applies at all the extent statute, see, York e.g., of a New structions .it with on- interferences speech, to intentional Ferber, 102 S.Ct. unlawful, is not going police work (1982),logically L.Ed.2d 1113 3361 n. whether that interference is achieved substantiality with that the requirement in over- above, speech suggested or conduct. As analysis breadth is not expres- limited to conduct, City ought prohibit to be able to sive applies conduct but as well where “pure speech,” even so-called when inter- “pure speech” so-called regulated. In- feres with to such an extent deed, the Court relied on the substantiality duties, longer carry can no out their requirement uphold the child pornogra- undoubtedly City that this is all the of phy challenged law in Ferber. Houston seeks to achieve here. While substantiality requirement The by no prosecution of such conduct or may means eviscerated analysis, overbreadth yet pose problems some constitutional —in- however, for majority describes, as the deed, there likely limiting no construc- Court has sustained overbreadth chal- tion of the ordinance which would confine lenges since Broadrick. See Erznoznik v. completely permissible its reach to propor- Jacksonville, possibility tions—the of such a limiting con- 2268, Village of struction is required inquiry relevant to the Schaumburg v. Citizens a Better En- into whether the ordinance is substantially vironment, U.S. overbroad. It is to that issue that I now L.Ed.2d 73 gleaned What can be turn. applications from these of the Broadrick formulation is yet that it leaves courts with -2- judgment a broad Oklahoma, In Broadrick v. broad that it now is —so inevitably almost (1973), case-specific inquiry. tightened Ironically, since Court there is not a clearly restrictions on the doc- more test, trine stated constitutional by of overbreadth. An it is a Oklahoma stat- case inquiry case prohibited ute certain of the determines whether a state’s civil employees statute will participating from be read on a case partisan case basis. short, activities, political whether a and the law statute will be struck was chal- lenged necessarily grounds. judicial on First mirrors intuitive Amendment valua- recognized tions such a persons’ conclusory that “some fashion argu- as to give guidance ably protected little [might] escape necessary conduct caught critique. are, statute,” however, There informing or chilled id. at my view, concerns mitigate S.Ct. at but nonetheless found the this difficulty. provision constitutional. Justice White ex-

plained: First, substantiality is a reconciliation of Although laws, such if broadly too word- competing Striking constitutional values. ed, may protected speech deter to some down a statute permis- that has at its core extent, unknown point there comes a inhibitory sible might functions because it that prediction— where effect—at best a be apply construed to to conduct cannot, justify with confidence invalidat- by the First Amendment is in tension with ing prohibit- a statute on its face and so constitutionally our footed devotion to the ing enforcing a State from the statute decision of actual cases. As Justice White against conduct admittedly that it is explained Broadrick, the traditional rule power within its proscribe____ put to To person is “that a may to whom a statute way, particularly the matter another constitutionally applied be will not heard be merely speech where conduct and not is challenge to that ground statute on the

involved, we believe that the overbreadth that conceivably applied it be unconsti- real, of a only statute must not be but others, tutionally to in other situations not well, judged substantial as when in rela- before the Court.” 413 at plainly legitimate tion to the statute’s L.Ed.2d at 2915. This limitation is based sweep. on Article Ill’s command that we decide controversies, Id. at only per- 93 S.Ct. at 2917-18. The Court actual cases or Ferber, made clear in supra, rights, New York v. sonal nature of and constitutional presence will quite real. Its can be ad- effect limitations on constitutional prudential facts, however, objective Ferber, signalled be 102 S.Ct. at 3360. judication. sponta- penalty, level of as the such for First permitted exception The chilled, speech to be anticipated neity of the par- challenges by overbreadth Amendment applica- to contest the opportunity and the is whose conduct as ties such here, When, as of the statute. tion “chilling” upon the predicated is protected, constitu- is a misdemeanor penalty that an cases —the fear speech problem raised application can be tionality of its chal- might never be statute overbroad chilling effect is defensively, the risk of a properly could those who lenged because I those who Nor have found lessened. adju- expected to cannot be the issue raise reluctant at all question such laws be Broadrick, rights. their own dicate of our federal through the wide doors walk L.Ed.2d at 2915-16. U.S. at courthouses. does much to substantiality requirement Second, substantiality is informed tension, recognizes that for it this alleviate When, regulation. character doctrine of the overbreadth application here, inhibitory and noncen- the statute medicine,” and insures “manifestly strong operation, ought to be more in its we sorial applied “sparingly” in fact be it will applications willing hypothetical to leave 613, 93 Id. at last resort.” and “as a Broadrick, to other concrete cases. See short, requirement at 2916. L.Ed.2d As at 2918. our consti- accommodates substantiality above, Amendment con- discussed First of concrete to the decision devotion tutional mitigated somewhat when the cerns are separation cases, devotion to as our as well unacceptable regulation does not rest on an federalism. powers speech ei- of the content of the valuation ther discriminatory way. Of in a direct or majority agree I with Thus while course, permissible valuations in there are an overbreadth standing to raise Hill has valuations, see of multi-tiered the sense challenge rests on challenge,4 because 726, 98 S.Ct. Pacifica, hypothetical FCC application the ordinance’s (1980); Ferber, cases, the substan- persons hypothetical J., (Stevens, concurring), S.Ct. at 3365-68 applied ought to be tiality requirement this ordinance can be and to the extent that substantiality re- stringently. A diluted such, is even less there primacy characterized perceived expresses a quirement explained to find it overbroad. As III reason above, Article values over of First Amendment ordinance, the extent judi- power and defined judicial checks of conduct, can applies at all to verbal so, roles, doing eschews what cial proscribe only speech which is construed analytical tool see to be a fundamental fide intention to not made with a bona of struc- adjudication constitutional —that I find inference, history. solely right, text and exercise a constitutional tural justifica- interfering text a nowhere in constitutional the intention of with carry deciding attempting out officers who slighting our devotion to tion for functions, actually and which Although saying lawful only presented cases. skepti- does create such interference. As with this, expressed my implicitly I have at issue in the disorderly conduct statute chilling upon others who cism of the effect case, supra, rights, I rec- Colten the ordinance “comes exercise fear to only the individual’s chilling operation into where such a ognize that in some cases See, however, sug- e.g., Levy, majority’s Parker v. troubling, the tion to others. 733, I find 4. 2547, 2560-62, standing challenge gestion the L.Ed.2d that Hill grounds Tribe, vagueness well. There on as ordinance L. American Constitutional jus principles of tertii when is no cause to relax Law 12-29 § vague- challenge is based on the constitutional intimately Hill was familiar with ordi- overbreadth, problem than ness rather applied by Houston nance and how it was effect, chilling vague is not its with a statute arrest, police prior and indeed was to his 1982 rights personal infringement of notice Kelley regarding questioned his in- Officer only a statute is It is when and fair trial. perfectly him. tent to interfere before arrested is, poten- vague, vague in all of its standing vagueness Thus Hill has no to raise vagueness applications, becomes a tial problem suggestion challenge, majority’s he and the Thus to First Amendment. for the standing applicable to blends the rules does litigant vagueness, prevail must on a claim of vagueness, doctrines we have overbreadth and ques- ordinarily in demonstrate that the statute See, kept e.g., Ferguson v. heretofore distinct. conduct, vague applied to his own tion is Cir.1983). Estelle, 734-35 regard potentially vague applica- without to its light of all judged expression, interest factors, compared to is ‘miniscule’ relevant NEALY, Petitioner-Appellant, James expression preventing public interest place.” Col at that time or conduct As ten, 92 S.Ct. at 1958. 407 U.S. at CABANA, Superintendent A. Donald Colten, potential with the statute Penitentiary, Mississippi State seriously does not of this ordinance reach Respondent-Appellee. constitutionally protected con threaten others; present certainly it does not duct of No. 83-4274. strike it down threat that we must such a substantially overbroad. Appeals, United States Court Fifth Circuit. IV sum, me that the record convinces In July constitutionally ap- Houston ordinance conduct on Hill for his Raymond plied streetcorner, and his chal- Montrose be sustained provision cannot lenge to the Nor is his attack sustaina- ground. on that ordinance ground that on the ble threatens rights oth- the constitutional of the interpretation my view an ers. application confine its that would ordinance possible, proportions is to constitutional of Texas a give the courts should and we construed, limit it. So chance to so abridge substantially ordinance does should leave as speech, and we prob- constitutional yet undemonstrated day. At the least this for another lems to be trimmed allows the ordinance course finds perceived overbreadth pro tanto as its expression to the gives actual cases are ill-suited to resolve reality that courts constitutionally issues and are hypothetical only concrete cases. enjoined to decide AND PETITION FOR REHEARING ON REHEARING FOR

SUGGESTION

EN BANC GEE, CLARK, Judge, RU- Before Chief RANDALL, POLITZ, REAVLEY, BIN, WILLIAMS, JOHNSON,

TATE, WOOD, GAR- HIGGINBOTHAM, JOLLY, DA- JONES, HILL, Judges. VIS, Circuit

BY THE COURT: in active service A of the Court member suggestion poll on the having requested a majority rehearing en and a banc having voted in active service

judges banc, rehearing en granting favor shall be this cause IT IS ORDERED with oral en banc reheard fixed. to be argument on a date hereafter briefing schedule specify a will

The Clerk filing supplemental briefs. for the

Case Details

Case Name: Raymond Wayne Hill v. The City of Houston, Texas

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 4, 1985

Citation: 764 F.2d 1156

Docket Number: 84-2181

Court Abbreviation: 5th Cir.