*1 v. CITY OF BIRMINGHAM. SHUTTLESWORTH Argued No. October 1965. Decided November 1966. 5. III argued James M. Nabrit for petitioner. cause him Greenberg, With on the brief were Jack Norman C. Amaker, Hall, Billingsley, Jr., Peter A. Orzell Anthony G. Amsterdam. argued
Earl McBee the cause and filed a brief for respondent. opinion of delivered Stewart
Mr. Justice *2 Court. in the Circuit to trial brought was
The complaint a upon Alabama, County, of Jefferson Court of General sections the violating two him with charging After trial Birmingham, Alabama.1 City the of of Code charged as “guilty him found a the court jury, without imprison- of a sentence imposed and Complaint,” in the 61 an additional labor and days hard for 180 ment costs. $100 of a fine and labor default at hard days by the Alabama was affirmed of conviction judgment 296, 796, So. 2d and App. 42 161 of Ala. Appeals, Court review. 276 of Alabama declined Supreme Court granted certiorari to con- 161 2d 799. We Ala. So. the Fourteenth petitioner’s claim that under sider his the United States Constitution Amendment stand. S. 905. cannot 380 U. conviction charged was The two ordinances which Shuttlesworth Birmingham 1231 violating §§ with are and of the City paragraph Code. The relevant General for any person any “It shall be unlawful or provides: to persons stand, upon any number of so loiter or walk or in the city street sidewalk to free passage obstruct on or over, along said street or sidewalk. It shall also any person be unlawful upon any for to stand or loiter street or of the city having sidewalk after been requested by any police officer move on.” pro- Section 1231 vides: “It any shall be for unlawful or refuse fail to comply signal with lawful or order, direction police of a officer.” The two in the complaint counts were framed in the words of these ordinances.2
1This was a appeal judgment trial de novo on from a of convic tion City Birmingham. Recorder’s Court of the “Count One City “Comes Birmingham, Alabama, municipal corpora- a tion, complains and Shuttlesworth, that F. L. within twelve months ver- prosecution’s conflict, but the was The evidence April 4, On briefly summarized. the facts can be sion of Byars m., a. Patrolman at about 10:30 Department observed Shuttlesworth Birmingham Police companions or 12 outside with 10 standing on sidewalk of 2d Ave. and near intersection department store Birmingham. observing After 19th St. in the so, up for a walked “told group minute on and they them would have to move clear the sidewalk pedestrians.” some, and not it for the After obstruct all, group began but not re- disperse, Byars peated this request response twice. In to the second request, said, say Shuttlesworth “You mean to we can’t *3 here on stand the sidewalk?” After the request third he “Do replied, mean to tell me we can’t stand here in front of this store?” By this time everybody in the group but Shuttlesworth begun had away, to walk and Patrolman him told he was under arrest. Shut- tlesworth then responded, I “Well, gowill into the store,” before the beginning prosecution of this City and within the of Birmingham, police jurisdiction or the thereof, stand, did loiter or upon walk a street or sidewalk among within and group a of other persons so as to passage over, obstruct free along on or said street or at, sidewalk Avenue, to-wit: 2nd North, at 19th Street or did group while in said upon stand or loiter said street or sidewalk after having requested by police been on, a officer contrary to move and in violation of City Section 1142 of Birming- the General Code of ham of as amended Ordinance Number 1436-F.
“Count Two City “Comes the Birmingham, Alabama, municipal corpora- tion, complains and Shuttlesworth, F. L. within twelve months beginning prosecution before the City this and within the police or jurisdiction thereof, comply did refuse to order, signal with a lawful or police contrary direction of officer, in to and violation of City Section 1231 of the General Code of the Birmingham.” department adjacent entrance walked into the
and custody just him into took and Byars followed store. entrance.3 the store’s inside
I. 1142 sets paragraph here its relevant face, On para- offenses. The disjunctive two separate out “so or walk stand, offense to loiter graph makes it an pas- free any street or sidewalk to obstruct upon ... along street or sidewalk.” The sage over, or said any paragraph person it “also unlawful for makes . . . upon or any to stand loiter street sidewalk . . . after having been requested any police officer to on.” move (Emphasis added.) complaint count of first case, tracking the ordinance, charged these two separate offenses the alternative.4
Literally read, therefore, part second of this ordi- says nance may that a stand on a public sidewalk Birmingham only at the whim of police officer of city. The constitutional vice of so provi- broad a sion needs no It provide demonstration.5 “does for not government by clearly laws, defined but gov- rather for ernment by the opinions moment-to-moment of a police- man on Louisiana, his beat.” Cox v. U. S. (separate opinion of Mr. Instinct with Black). Justice 3The many record contains references to a so-called “selective *4 buying campaign” in Birmingham Negroes which engaged that time. There was no showing, however, of connection campaign between this presence of the and his companions department outside the store morning on the of his arrest. 4 2, supra. See note 5 Alabama, Thornhill v. 88, 310 97; Button, NAACP v. U. S. 415, 371 U. S. 433, 435; Amsterdam, Note, Void-for-Vagueness The Supreme Doctrine Court, 75-81, 109 Pa. 67, U. L. Rev. 96-104 (1960). Cf. Smith California, v. 147, 151; Baggett 361 U. S. v. Bullitt, 360, 377 U. S. 371.
91 arbitrarily suppressing for potential ever-present its of law bears the liberties, kind First Amendment a police hallmark of state.6 pur- exhaustively is one which need
The matter not be respondent correctly points sued, however, because, as 1142 Court of has read out, Appeals § the Alabama not literally, it an con- given explicitly but has to narrowed “is di- ordinance, ruled, struction. The court has along on obstructing passage over, rected at the free or a by person street or sidewalk the manner in which stands, thereupon. accused loiters or walks deci- Our sions make it clear that move on after the mere refusal to a police standing officer’s that a requesting person loitering enough support should do so is not to showing offense. . . . must also be a [T]here blocking accused’s free . passage . . .” Middlebrooks v. 525, City Birmingham, 42 App. Ala. 170 2d 527, So. 424, 426.
The Alabama Court of
has
Appeals
thus authorita-
tively
applies
ruled that
1142
only
§
when a
who
stands, loiters, or walks
a street
or sidewalk so
passage
obstruct
free
obey
refuses to
an
request
officer to move on.
It is
duty,
course,
accept
our
this state judicial construction of
Win-
the ordinance.
York,
ters v. New
507;
U. S.
United States v.
Burnison, 339
Aero
87;
Mayflower
U. S.
Transit Co. v.
Board
Comm’rs,
Railroad
given to the ordinance the Alabama Court Appeals, Lovell Griffin, 444, 451; 303 U. S. Kunz York, v. New U. S. 293; State, Schneider v. U. S. 163-164.
92 Middlebrooks, two supra, in its decision
however, until case.7 present in the conviction petitioner’s after years that it had stated Appeals the Court In Middlebrooks of the ordinance construction narrowed applied its opinion its conviction, but affirming Shuttlesworth’s 161 So. 2d App. 296, 42 Ala. case, present any In construction. explicit any makes such nowhere was without present in the case event, the trial court as to the mean- appellate from state court guidance ing of the ordinance. findings
The trial court made no of fact and rendered opinion. may no For all appears, that court have guilty found the petitioner only by applying the literal-— Upon unconstitutional —terms of the ordinance. the evidence before him, judge the trial finder might easily facts have determined that had an obstruction, created but subsequently had moved on. might The court alternatively have found petitioner himself had created no obstruction, but had simply disobeyed Byars’ Patrolman instruction to move on. In either circumstance the literal terms of the ordi- nance apply; would in neither circumstance would the ordinance be applicable as now construed the Ala- bama Court of Appeals. Because we are say unable to the Alabama courts in this case did not judge the petitioner by an unconstitutional construction of the ordinance, petitioner’s conviction under cannot stand. petitioner's place trial took in October 1962. The Alabama Appeals
Court of
judgment
affirmed of conviction in November
1963. The Middlebrooks case was
decided October 1964. 42 Ala.
App. 525,
II. under the second conviction find the petitioner’s We of 1231 of the § violation complaint, for of the count for a constitutionally invalid City Code, to General be it a makes reason. That ordinance distinct completely or fail to com any for “to refuse offense criminal signal police direction of any order, lawful ply with provisions above, of 1142 discussed § Like the officer.” so of this broad as evoke the literal terms ordinance are gravity. of utmost But the constitutional doubts the of Alabama Court has confined this ordinance Appeals scope. relatively reversing to a narrow In convic the codefendant, tion the petitioner’s of the said of court 1231: “This appears chapter section in the regulating provides vehicular and for traffic, the enforcement of the police orders the officers of department in direct ing traffic.” City such Birmingham, 42 Ala. Phifer App. 282, 285, 160 So. 2d 901.8
The record contains no evidence whatever that Patrol- Byars man was directing vehicular traffic time he told the his companions and to move on. Whatever Byars’ Patrolman other generally assigned may duties have been,9 unambiguously he testified City Cf. Shelton v. App. 371, 42 Ala. 165 So. 2d affirming the conviction of a defendant obey who refused to an get officer’s direction to out the middle of a street which had private been closed to “[pjolice vehicles and in which cars and fire engines being used quiet to move and the crowd.” 9 Patrolman testified that on morning question he “utility officer,” was a and that as charge such he was “in direction and movement of all traffic at 3rd Avenue and 19th east, Street and four west, blocks an north and south direction.” that, He conceded he regularly placed” was “not at the intersection occurred, where the arrest and that “nothing he had to do with the other officers who were also there.” “clear on, move group petitioner’s directed he pedestrians.” it for not obstruct sidewalk Thomp- case of decided this Court ago years Five we There 199. Louisville, S. 362 U. son v. found had been man who of a the conviction reversed Kentucky, of Louisville, court police in the guilty for proposition disorderly conduct. loitering and It has noth- and clear. simple is stands which case weight or suffi- relating to the concepts ing to do with goes, It case. particular of the evidence ciency of law. concepts process of due most basic rather, to the *7 as Mr. turned, case Thompson’s application Its Jus- directing vehicular traffic at the officer The record shows petitioner’s at the time of the of 2d Ave. and 19th St. the intersection testimony was as follows: Hallman. His relevant arrest Officer was your position you from here “Q. Now, on these corners observe you you police corner, do not? when tryI to. “A. people blocking
“Q. you over there traffic before Had seen these Byars? you saw Officer talking
“A. I saw him standing there to them. over talking “Q. you to them? see them before he was Did any pay particular I them over there. I didn’t attention “A. saw to them.
“Q. you get impression they waiting light for to Did change? they I
“A. I couldn’t answer that because don’t know what had on their mind.
“Q. impression you no when them? You formed first saw “A. No.
“Q. you them, You took no note of them when first saw is right ? standing over
“A. Just saw them there. “Q. only you standing time made note of them over there you policeman assisting talking when saw the to them? was talking I him over there to “A. When saw them. He wasn’t assisting me.
“Q. assisting you your with He wasn’t corner.
“A. No.” sufficiency on “not pointed out, tice Black upon any whether this conviction rests evidence, on but found S., at 199. The Court evidence at all.” U. support to was “no evidence whatever the record there convictions,” and held that it was “a these violation process punish man evi- due convict without guilt.” S., dence of his at 206. also Garner U. See Louisiana, 368 U. S. 157. No more need be said in this case with to the respect petitioner’s for violating conviction 1231 of the General Quite Code of the Alabama. sim- ply, on, any was in, not around vehicle at the time he was directed move or at the time he was He was pedestrian. arrested. Byars Officer did not issue direction to the petitioner in the course directing vehicular traffic, because Officer was not then directing any such There traffic. was thus no evi- dence whatever in the support record to petitioner’s conviction under this ordinance it has been authorita- tively construed the Alabama Court of Appeals. It was a violation of process due to convict him and punish without of his guilt. evidence
For these reasons the judgment is reversed and the case is remanded the Court of Appeals of Alabama *8 for proceedings not inconsistent with opinion. this
Reversed and remanded. Douglas, MR. Justice concurring.
I join Part II of opinion the Court’s but would reverse I for Count a somewhat different reason. The police power of a municipality is certainly ample to deal with all traffic conditions on the pedestrian as well as streets — vehicular. So there could be no petitioner doubt that if were one member of a group a obstructing sidewalk he could, pursuant narrowly to a drawn ordinance, be asked to move on if and, he refused, be arrested for the obstruc- group the testimony is that case But
tion. petit only police, save warned when dissolved no was arrest time At the ioner.* Birmingham 1142 of the blocking traffic. Section longer free makes it to “obstruct unlawful Code General ordinance, on . sidewalks.” . . persons passage Ap the Alabama Court construed it has been continues only to one who apply held to been has peals, move. warning to police a block a sidewalk after 525, App. City Ala. v. Middlebrooks “obstructing” no such 424, 426. There was 2d So. itself on the was presence street petitioner’s unless here, is not obey order, an when such one enough. Failure certainly cannot be made a crime acting unlawfully, (Edwards v. freedom of locomotion country where California, 160) is honored. For these reasons 314 U. S. meaning I was no within evidence, think there Louisville, Thompson to sustain U. S. judgment the conviction and hence I would reverse the outright. TO
APPENDIX OPINION OF MR. JUSTICE
DOUGLAS. Officer Robert L. who Byars, made testified arrest, on cross-examination as follows:
“Q. many persons How standing there at that you intersection when first observed it?
“A. Some or ten twelve.
“Q. they all Were or colored white or alto- people, or gether what? I pay particular
“A. didn’t notice the race. “Q. stood there You minute a half minute and and then went out and cleared the intersection?
“A. I went out and asked them to move. Appendix
*See hereto. *9 the inter- there and big crowd out great that “Q. Was half had you testified You blocked? completely section the defendants free, walk cross of the south-north walk, cross south-north blocking half of the not were walk cross part the west standing in they were going assuming they were standing be they should where cross walk blocking the east-west were south, they not blocking? that was was the crowd Now, all? where standing on the sidewalk. were all They “A. crowd?
“Q. You mean the including the right, defendant. That’s
“A. have where the defendants “Q. Now, you placed we are interested crowd is what Now, X. they? where were they blocking, were crowd now, the no testi- There has been object. “Mr. Walker: We being blocked; a crowd that was there was mony moving blocking testimony is there was crowd trafile. assem- charged then with Are these defendants
“Q. blocking? something? they Who were bling crowd or these two they blocking, were persons were the Where here? defendants causing half of blocking the sidewalk They
“A. go into the street around walking east people them. walking along east what street?
“Q. people The Along Avenue. “A. 2nd
“Q. Along way (indicating)? right.
“A. That’s from walking along 2nd Avenue west “Q. people go them? had to around east “A. That is true. there? they stood
“Q. While That is true.
“A. or minute for minute “Q. you observed And and a half? *10 is
“A. true. That “Q. to you required And then went out and them you you speak on. Did to the directly move Defendant Shuttlesworth? I spoke people standing
"A. to the there. assembled “Q. all They him, moved but is that correct? they “A. Not on the first all move. request didn’t began Some to move.
“Q. all Well, you had moved the time made arrest?
“A. Except Shuttlesworth.
“Q. Nobody was standing there but Shuttlesworth? “A. Nobody was standing; everybody was else in mo- except tion the Defendant Shuttlesworth, who had never moved.
“Q. talking Was he you during this time? “A. He made a statement to me on two occasions when I him informed to move on on three occasions.
“Q. he you Did ask you where wanted him to move? “A. No.
“Q. Did tell him where move?
“A. I did not.
“Q. You didn’t anybody arrest but Shuttlesworth? “A. atNot (R. 27-28.) time.” Officer C. W. Hallman, who observed the above after having been over by called Officer Byars, on testified direct examination as follows:
“Q. how many About was in the group at that time, if you know? I
“A. say would five or six. It could have been more or less.
“Q. happened What to the group then, if anything? “A. All dispersed of them except Shuttlesworth. “Q. happened What after that?
“A. Officer told him he was under arrest for blocking the sidewalk placed and him under arrest.” (R. 59-60.) concurring. Brennan,
Mr. Justice understanding my opinion I the Court’s join being read is Middlebrooks v. (a) only when a applies holding as to so a street or sidewalk or walks on stands, loiters by an officer (b) requested is passage, free obstruct passage to block thereafter continues on, (c) move only is standing on the street. It loitering or *11 statute from the which saves the limiting construction More- challenge overly it is broad. constitutional statute to delimits the over, because this construction obviously be that would of ‘hard-core’ conduct “the sort Dombrowski v. any construction,” under prohibited ap- may legitimately it be Pfister, 479, 491-492, 380 S.U. construction. occurring before that plied to such conduct with whom The Chief Justice Fortas, Mr. Justice concurring. joins, be set conviction must
I agree that Shuttlesworth’s opinion I of Court But am concerned lest aside. con- can indicating, Shuttlesworth considered as be violating General Code stitutionally be convicted on the facts here Birmingham, Alabama, City of of the basic conviction would violate Any such presented. I would make this clear now. guaranties. constitutional opinion challenge does not the constitu- The Court’s tionality Birmingham of 1142 of the Code as that sec- § Appeals tion was the Alabama two construed Court years opinion may after Shuttlesworth’s conviction. The imply that if put be read to Shuttlesworth is now to trial § for violation of as construed, the vice present may conviction be eliminated. I make it would clear that the Federal Constitution forbids a conviction regardless on the record, validity facts the ordinance involved.
100 that,
I agree years as Alabama two after construed convicted, Shuttlesworth was cannot be held un- agree constitutional on its face. I if there were a rational charging violating basis for Shuttlesworth with the section as construed, so he could be retried if Ala- bama vigorously protect choose so should the sidewalks of Birmingham. rights leaders, Civil like all per- other sons, are subject comply the law and must with it. calling Their immunity. carries no Their cause confers privilege no or disregard to break the law.
But possible there is here no basis for a conviction which would be valid under the Federal Constitution. provision The accused would be unconstitutional ap plied to Shuttlesworth’s facts plastic even after the sur gery by Alabama’s Appeals Court of in 1964. Middle brooks App. Ala. So. 2d 424.1 A revision of the formula does not and change cannot facts; and those facts do permit not jail State to Shuttlesworth for his actions on April 4, 1962.
Taking the prosecution’s version of the facts, it appears *12 that Shuttlesworth was one of a group of 8, 10 or 12 persons who at 10:30 a. m. April 4, 1962, were accosted patrolman a after they had stood for a minute or a minute and a half at 19th Street and 2d Avenue in Birmingham. They occupied one-half of the sidewalk. They were conversing among themselves. There is no suggestion of disorder or of deliberate obstruction of pedestrian traffic. After the first command pa- the opinion 1 As the Court’* points out, herein in Middlebrooks, the Appeals Court of stated that its narrowed construction of ordinance had been the “ratio Shuttlesworth, decidendi” of decided year a earlier. But there is no indication of Shuttlesworth itself. 2Officer Renshaw testified there were people, 10 or 12 in the 40). group (R. Officer (R. testified 17). to 10 or 12 The offi- away. to move commenced trolman, group “You said, and Shuttlesworth command, repeated his cer After on the sidewalk?” here we can’t stand say mean to “Do mean said, command, Shuttlesworth the third of this store?” in front stand here me we can’t to tell arrest. was under he Shuttlesworth officer then told The The the store. go would into said he Shuttlesworth resist- There was no him. and arrested followed officer group except Shut- in the everybody By this time ance. took incident away. entire moved had tlesworth arrival of from minutes, and one-half less than four to his arrest. at the corner and friends Shuttlesworth his and sen- convicted tried, was this, For Shuttlesworth pay hard labor and year half a spend tenced to $100. fine of justified which nothing in the facts there is my view,
In officer’s command Prior to the an and conviction. arrest occupy- group people that a small the situation was orderly engaged sidewalk were ing one-half command, officer’s Promptly upon the conversation. re- only disperse and Shuttlesworth group began blocked the cannot be held to have He, alone, mained. may have questions irritated His rhetorical sidewalk. one— n happy lot is not a policeman’s but a patrolman; did questions context, Shuttlesworth’s certainly, against the laws magnitude of an offense to the not rise surface If were to confine oneself Alabama. one people alarm for the facts, general version in order. Their use of the side- Birmingham would be measure. beyond hazardous walks would be a nar- It is facade for course, is fiction. this, But April 4, 1962, truth. disagreeable, no less On rower, but in a Birmingham engaged “selective Negroes of boycott Birming- campaign” attempted buying —of —an *13 protesting discrimination purpose for the ham’s stores companions and his were against them. Shuttlesworth Negroes.3 They standing department were of a in front in participated store. as an officer who Shuttlesworth, testified, the arrest was a “notorious” in the field Birmingham.4 in rights of civil In effect of the facts in this case is my view net inescapable. Shuttlesworth’s arrest was an incident in Birmingham. may the tense racial conflict in This ex- plain the but arrest, nothing adds to its lawfulness. it There is no basis in the facts and circumstances of the charging case for “blocking Shuttlesworth was free sidewalk, passage” Middlebrooks, on the supra, at 527, 170 So. 2d, that he culpably obey an refused order of an officer to move on, or remained after such an order so as to justify arrest, trial or Any conviction. attempt punish Shuttlesworth in these circumstances would, my view, violate the Fourteenth Amendment of the Federal Constitution. 3 Testimony of (R. 49). Officer Renshaw Officer testified that he didn’t know they what (R. 36). color principal arresting officer recognize testified that he did not Shuttlesworth, but he picture had seen his on television. He had
heard of him, had read frequently that he had arrested, been that he had Birmingham jail. been walk Shuttlesworth’s April 4, 1962, during started recess rights federal court civil trial in which he was involved. publicized. The trial had been