Petitioner and a group of companions were standing near a street
intersection on a Birmingham, Alabama, sidewalk which a policeman
thrice requested them to clear for pedestrian passage. After the
third request, all but petitioner, who had been questioning the
policeman about his order, had begun to walk away, and the
policeman arrested petitioner. Petitioner was tried before a court,
without a jury, which, without any factfindings or opinion,
convicted him of violating two ordinances, §§ 1142 and 1231, of
Birmingham's city code. The Alabama Court of Appeals affirmed.
Because of their breadth if read literally, these ordinances
present grave constitutional problems. In other decisions
subsequent to petitioner's conviction, § 1142 was construed by the
Alabama Court of Appeals as applicable only to standing, loitering
or walking on a street or sidewalk so as to obstruct free passage,
and refusing to obey an officer's request to move on, and § 1231
was confined to the enforcement of the orders of a traffic officer
while directing vehicular traffic.
Held:
1. The conviction under §1142 must be set aside in view of the
possibility that it was based upon an unconstitutional construction
of the ordinance. Pp.
382 U. S.
90-92.
2. Since petitioner, when directed to move on, was a pedestrian
not around a vehicle, and the arresting policeman was not directing
traffic, the conviction under § 1231 must fall for lack of any
evidence to support the alleged violation.
Thompson v. City of
Louisville, 362 U. S. 199,
followed. Pp.
382 U. S.
93-95.
42 Ala.App. 296, 161 So. 2d 796, reversed and remanded.
Page 382 U. S. 88
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was brought to trial in the Circuit Court of
Jefferson County, Alabama, upon a complaint charging him with
violating two sections of the General Code of the City of
Birmingham, Alabama. [
Footnote
1] After trial without a jury, the court found him "guilty as
charged in the Complaint," and imposed a sentence of imprisonment
for 180 days at hard labor and an additional 61 days at hard labor
in default of a $100 fine and costs. The judgment of conviction was
affirmed by the Alabama Court of Appeals, 42 Ala.App. 296, 161 So.
2d 796, and the Supreme Court of Alabama declined review. 276 Ala.
707,
161 So. 2d
799. We granted certiorari to consider the petitioner's claim
that, under the Fourteenth Amendment of the United States
Constitution, his conviction cannot stand. 380 U.S. 905.
The two ordinances which Shuttlesworth was charged with
violating are §§ 1142 and 1231 of the Birmingham General City Code.
The relevant paragraph of 1142 provides:
"It shall be unlawful for any person or any number of persons to
so stand, loiter or walk upon any street or sidewalk in the city as
to obstruct free passage over, on or along said street or sidewalk.
It shall also be unlawful for any person to stand or loiter upon
any street or sidewalk of the city after having been requested by
any police officer to move on."
Section 1231 provides: "It shall be unlawful for any person to
refuse or fail to comply with any lawful order, signal or direction
of a police officer." The two counts in the complaint were framed
in the words of these ordinances. [
Footnote 2]
Page 382 U. S. 89
The evidence was in conflict, but the prosecution's version of
the facts can be briefly summarized. On April 4, 1962, at about
10:30 a.m., Patrolman Byars of the Birmingham Police Department
observed Shuttlesworth standing on a sidewalk with 10 or 12
companions outside a department store near the intersection of 2d
Ave. and 19th St. in the City of Birmingham. After observing the
group for a minute or so, Byars walked up and "told them they would
have to move on and clear the sidewalk, and not obstruct it for the
pedestrians." After some, but not all, of the group began to
disperse, Byars repeated this request twice. In response to the
second request, Shuttlesworth said, "You mean to say we can't stand
here on the sidewalk?" After the third request, he replied, "Do you
mean to tell me we can't stand here in front of this store?" By
this time, everybody in the group but Shuttlesworth had begun to
walk away, and Patrolman Byars told him he was under arrest.
Shuttlesworth then responded, "Well, I will go into the store,"
Page 382 U. S. 90
and walked into the entrance of the adjacent department store.
Byars followed and took him into custody just inside the store's
entrance. [
Footnote 3]
I
On its face, the here relevant paragraph of § 1142 sets out two
separate and disjunctive offenses. The paragraph makes it an
offense to "so stand, loiter or walk upon any street or sidewalk .
. . as to obstruct free passage over, on or along said street or
sidewalk." The paragraph makes it
"
also . . . unlawful for any person to stand or loiter
upon any street or sidewalk . . . after having been requested by
any police officer to move on."
(Emphasis added.) The first count of the complaint in this case,
tracking the ordinance, charged these two separate offenses in the
alternative. [
Footnote 4]
Literally read, therefore, the second part of this ordinance
says that a person may stand on a public sidewalk in Birmingham
only at the whim of any police officer of that city. The
constitutional vice of so broad a provision needs no demonstration.
[
Footnote 5] It
"does not provide for government by clearly defined laws, but
rather for government by the moment-to-moment opinions of a
policeman on his beat."
Cox v. Louisiana, 379 U. S. 536,
379 U. S. 559,
379 U. S. 579
(separate opinion of MR. JUSTICE BLACK). Instinct with
Page 382 U. S. 91
its ever-present potential for arbitrarily suppressing First
Amendment liberties, that kind of law bears the hallmark of a
police state. [
Footnote 6]
The matter is not one which need be exhaustively pursued,
however, because, as the respondent correctly points out, the
Alabama Court of Appeals has not read § 1142 literally, but has
given to it an explicitly narrowed construction. The ordinance,
that court has ruled,
"is directed at obstructing the free passage over, on or along a
street or sidewalk by the manner in which a person accused stands,
loiters or walks thereupon. Our decisions make it clear that the
mere refusal to move on after a police officer's requesting that a
person standing or loitering should do so is not enough to support
the offense. . . . [T]here must also be a showing of the accused's
blocking free passage. . . ."
Middlebrooks v. City of Birmingham, 42 Ala.App. 525,
527, 170 So. 2d 424, 426.
The Alabama Court of Appeals has thus authoritatively ruled that
§ 1142 applies only when a person who stands, loiters, or walks on
a street or sidewalk so as to obstruct free passage refuses to obey
a request by an officer to move on. It is our duty, of course, to
accept this state judicial construction of the ordinance.
Winters v. New York, 333 U. S. 507;
United States v. Burnison, 339 U. S.
87;
Aero Mayflower Transit Co. v. Board of Railroad
Comm'rs, 332 U. S. 495. As
so construed, we cannot say that the ordinance is unconstitutional,
though it requires no great feat of imagination to envisage
situations in which such an ordinance might be unconstitutionally
applied.
The present limiting construction of § 1142 was not given to the
ordinance by the Alabama Court of Appeals,
Page 382 U. S. 92
however, until its decision in
Middlebrooks, supra, two
years after the petitioner's conviction in the present case.
[
Footnote 7] In
Middlebrooks, the Court of Appeals stated that it had
applied its narrowed construction of the ordinance in affirming
Shuttlesworth's conviction, but its opinion in the present case, 42
Ala.App. 296, 161 So. 2d 796, nowhere makes explicit any such
construction. In any event, the trial court in the present case was
without guidance from any state appellate court as to the meaning
of the ordinance.
The trial court made no findings of fact and rendered no
opinion. For all that appears, that court may have found the
petitioner guilty only by applying the literal -- and
unconstitutional -- terms of the ordinance. Upon the evidence
before him, the trial judge, as finder of the facts, might easily
have determined that the petitioner had created an obstruction, but
had subsequently moved on. The court might alternatively have found
that the petitioner himself had created no obstruction, but had
simply disobeyed Patrolman Byars' instruction to move on. In either
circumstance, the literal terms of the ordinance would apply; in
neither circumstance would the ordinance be applicable as now
construed by the Alabama Court of Appeals. Because we are unable to
say that the Alabama courts in this case did not judge the
petitioner by an unconstitutional construction of the ordinance,
the petitioner's conviction under § 1142 cannot stand.
Page 382 U. S. 93
II
.
We find the petitioner's conviction under the second count of
the complaint, for violation of § 1231 of the General City Code, to
be constitutionally invalid for a completely distinct reason. That
ordinance makes it a criminal offense for any person "to refuse or
fail to comply with any lawful order, signal or direction of a
police officer." Like the provisions of § 1142 discussed above, the
literal terms of this ordinance are so broad as to evoke
constitutional doubts of the utmost gravity. But the Alabama Court
of Appeals has confined this ordinance to a relatively narrow
scope. In reversing the conviction of the petitioner's codefendant,
the court said of § 1231:
"This section appears in the chapter regulating vehicular
traffic, and provides for the enforcement of the orders of the
officers of the police department in directing such traffic."
Phifer v. City of Birmingham, 42 Ala.App. 282, 285, 160
So. 2d 898, 901. [
Footnote
8]
The record contains no evidence whatever that Patrolman Byars
was directing vehicular traffic at the time he told the petitioner
and his companions to move on. Whatever Patrolman Byars' other
generally assigned duties may have been, [
Footnote 9] he testified unambiguously that
Page 382 U. S. 94
he directed the petitioner's group to move on, to "clear the
sidewalk and not obstruct it for the pedestrians." [
Footnote 10]
Five years ago, this Court decided the case of
Thompson v.
City of Louisville, 362 U. S. 199.
There, we reversed the conviction of a man who had been found
guilty in the police court of Louisville, Kentucky, of loitering
and disorderly conduct. The proposition for which that case stands
is simple and clear. It has nothing to do with concepts relating to
the weight or sufficiency of the evidence in any particular case.
It goes, rather, to the most basic concepts of due process of law.
Its application in Thompson's case turned, as MR. JUSTICE
Page 382 U. S. 95
BLACK pointed out "not on the sufficiency of the evidence, but
on whether this conviction rests upon any evidence at all." 362
U.S. at
362 U. S. 199. The
Court found there was "no evidence whatever in the record to
support these convictions," and held that it was "a violation of
due process to convict and punish a man without evidence of his
guilt." 362 U.S. at
362 U. S. 206.
See also Garner v. Louisiana, 368 U.
S. 157.
No more need be said in this case with respect to the
petitioner's conviction for violating § 1231 of the General Code of
the City of Birmingham, Alabama. Quite simply, the petitioner was
not in, on, or around any vehicle at the time he was directed to
move on or at the time he was arrested. He was a pedestrian.
Officer Byars did not issue any direction to the petitioner in the
course of directing vehicular traffic, because Officer Byars was
not then directing any such traffic. There was thus no evidence
whatever in the record to support the petitioner's conviction under
this ordinance as it has been authoritatively construed by the
Alabama Court of Appeals. It was a violation of due process to
convict and punish him without evidence of his guilt.
For these reasons, the judgment is reversed and the case is
remanded to the Court of Appeals of Alabama for proceedings not
inconsistent with this opinion.
Reversed and remanded.
[
Footnote 1]
This was a trial
de novo on appeal from a judgment of
conviction in the Recorder's Court of the City of Birmingham.
[
Footnote 2]
"
Count One"
"Comes the City of Birmingham, Alabama, a municipal corporation,
and complains that F. L. Shuttlesworth, within twelve months before
the beginning of this prosecution and within the City of
Birmingham, or the police jurisdiction thereof, did stand, loiter
or walk upon a street or sidewalk within and among a group of other
persons so as to obstruct free passage over, on or along said
street or sidewalk at, to-wit: 2nd Avenue, North, at 19th Street,
or did while in said group stand or loiter upon said street or
sidewalk after having been requested by a police officer to move
on, contrary to and in violation of Section 1142 of the General
City Code of Birmingham of 1944, as amended by Ordinance Number
1436-F."
"
Count Two"
"Comes the City of Birmingham, Alabama, a municipal corporation,
and complains that F. L. Shuttlesworth, within twelve months before
the beginning of this prosecution and within the City of
Birmingham, or the police jurisdiction thereof, did refuse to
comply with a lawful order, signal or direction of a police
officer, contrary to and in violation of Section 1231 of the
General City Code of the City of Birmingham."
[
Footnote 3]
The record contains many references to a so-called "selective
buying campaign" in which Birmingham Negroes were engaged at that
time. There was no showing, however, of any connection between this
campaign and the presence of the petitioner and his companions
outside the department store on the morning of his arrest.
[
Footnote 4]
See note 2
supra.
[
Footnote 5]
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 97;
NAACP v. Button, 371 U. S. 415,
371 U. S. 433,
371 U. S. 435;
Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme
Court, 109 U.Pa.L.Rev. 67, 75-81, 96-104 (1960).
Cf. Smith v.
California, 361 U. S. 147,
361 U. S. 151;
Baggett v. Bullitt, 377 U. S. 360,
377 U. S.
371.
[
Footnote 6]
Lovell v. City of Griffin, 303 U.
S. 444,
303 U. S. 451;
Kunz v. New York, 340 U. S. 290,
340 U. S. 293;
Schneider v. New Jersey, 308 U. S. 147,
308 U. S.
163-164.
[
Footnote 7]
The petitioner's trial took place in October, 1962. The Alabama
Court of Appeals affirmed the judgment of conviction in November,
1963. The
Middlebrooks case was decided in October, 1964.
42 Ala.App. 525, 170 So. 2d 424. The
Middlebrooks
construction of the ordinance was adumbrated in
Smith v. City
of Birmingham, decided the same day. 42 Ala.App. 467, 168 So.
2d 35.
[
Footnote 8]
Cf. Shelton v. City of Birmingham, 42 Ala.App. 371, 165
So. 2d 912, affirming the conviction of a defendant who refused to
obey an officer's direction to get out of the middle of a street
which had been closed to private vehicles and in which "[p]olice
cars and fire engines were being used to move and quiet the
crowd."
[
Footnote 9]
Patrolman Byars testified that, on the morning in question, he
was a "utility officer," and that, as such, he was "in charge of
the direction and movement of all traffic at 3rd Avenue and 19th
Street and four blocks in an east, west, north and south
direction." He conceded that he was "not regularly placed" at the
intersection where the arrest occurred, and that he had "nothing to
do with the other officers who were also there."
[
Footnote 10]
The record shows that the officer directing vehicular traffic at
the intersection of 2d Ave. and 19th St. at the time of the
petitioner's arrest was Officer Hallman. His relevant testimony was
as follows:
"Q. Now, you observe on these corners from your position here
when you police that corner, do you not?"
"A. I try to."
"Q. Had you seen these people over there blocking traffic before
you saw Officer Byars?"
"A. I saw him standing over there talking to them."
"Q. Did you see them before he was talking to them?"
"A. I saw them over there. I didn't pay any particular attention
to them."
"Q. Did you get the impression they were waiting for the light
to change?"
"A. I couldn't answer that because I don't know what they had on
their mind."
"Q. You formed no impression when you first saw them?"
"A. No."
"Q. You took no note of them when you first saw them, is that
right?"
"A. Just saw them standing over there."
"Q. The only time you made note of them standing over there was
when you saw the policeman assisting you talking to them?"
"A. When I saw him over there talking to them. He wasn't
assisting me."
"Q. He wasn't assisting you with your corner."
"A. No."
MR. JUSTICE DOUGLAS, concurring.
I join Part II of the Court's opinion, but would reverse on
Count I for a somewhat different reason. The police power of a
municipality is certainly ample to deal with all traffic conditions
on the streets -- pedestrian as well as vehicular. So there could
be no doubt that, if petitioner were one member of a group
obstructing a sidewalk, he could, pursuant to a narrowly drawn
ordinance, be asked to move on, and, if he refused, be arrested for
the obstruction.
Page 382 U. S. 96
But, in this case, the testimony is that the group dissolved
when warned by the police, save only the petitioner.
* At the time of
the arrest, petitioner was no longer blocking traffic. Section 1142
of the Birmingham General Code makes it unlawful to "obstruct the
free passage of persons on . . . sidewalks." The ordinance, as it
has been construed by the Alabama Court of Appeals, has been held
to apply only to one who continues to block a sidewalk after a
police warning to move.
Middlebrooks v. City of
Birmingham, 42 Ala.App. 525, 527, 170 So. 2d 424, 426. There
was no such "obstructing" here, unless petitioner's presence on the
street was itself enough. Failure to obey such an order, when one
is not acting unlawfully, certainly cannot be made a crime in a
country where freedom of locomotion (
Edwards v.
California, 314 U. S. 160) is
honored. For these reasons, I think there was no evidence, within
the meaning of
Thompson v. City of Louisville,
362 U. S. 199, to
sustain the conviction, and hence I would reverse the judgment
outright.
*
See 382 U.S.
87app|>Appendix hereto.
|
382 U.S.
87app|
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.
Officer Robert L. Byars, who made the arrest, testified on
cross-examination as follows:
"Q. How many persons were standing there at that intersection
when you first observed it?"
"A. Some ten or twelve."
"Q. Were they all colored or white people, or altogether or
what?"
"A. I didn't pay particular notice to the race."
"Q. You stood there a minute or minute and a half, and then you
went out and cleared the intersection?"
"A. I went out and asked them to move. "
Page 382 U. S. 97
"Q. Was that great big crowd out there and the intersection
completely blocked? You testified you had half of the south-north
crosswalk free, that the defendants were not blocking half of the
south-north crosswalk, they were standing in the west part of the
crosswalk where they should be standing, assuming they were going
south, they were not blocking the east-west crosswalk at all. Now,
where was the crowd that was blocking?"
"A. They were all standing on the sidewalk."
"Q. You mean the crowd?"
"A. That's right, including the defendant."
"Q. Now, you placed the defendants where you have the X. Now,
the crowd is what we are interested in now, the crowd they were
blocking, where were they?"
"Mr. Walker: We object. There has been no testimony that there
was a crowd that was being blocked; the testimony is there was a
crowd blocking the moving traffic."
"Q. Are these defendants charged then with assembling the crowd
or something? Who were they blocking? Where were the persons they
were blocking, these two defendants here?"
"A. They were blocking half of the sidewalk causing the people
walking east to go into the street around them."
"Q. The people walking east along what street?"
"A. Along 2nd Avenue."
"Q. Along this way (indicating)?"
"A. That's right."
"Q. The people walking along 2nd Avenue from west to east had to
go around them?"
"A. That is true."
"Q. While they stood there?"
"A. That is true."
"Q. And you observed that for a minute or minute and a half?
"
Page 382 U. S. 98
"A. That is true."
"Q. And then you went out and you required them to move on. Did
you speak directly to the Defendant Shuttlesworth?"
"A. I spoke to the people standing assembled there."
"Q. They all moved but him, is that correct?"
"A. Not on the first request they didn't all move. Some began to
move."
"Q. Well, all had moved by the time you made the arrest?"
"A. Except Shuttlesworth."
"Q. Nobody was standing there but Shuttlesworth?"
"A. Nobody was standing; everybody else was in motion except the
Defendant Shuttlesworth, who had never moved."
"Q. Was he talking to you during this time?"
"A. He made a statement to me on two occasions when I informed
him to move on on three occasions."
"Q. Did he ask you where you wanted him to move?"
"A. No."
"Q. Did you tell him where to move?"
"A. I did not."
"Q. You didn't arrest anybody but Shuttlesworth?"
"A. Not at that time."
(R. 27-28.)
Officer C. W. Hallman, who observed the above after having been
called over by Officer Byars, testified on direct examination as
follows:
"Q. About how many was in the group at that time, if you
know?"
"A. I would say five or six. It could have been more or
less."
"Q. What happened to the group then, if anything?"
"A. All of them dispersed except Shuttlesworth."
"Q. What happened after that?"
"A. Officer Byars told him he was under arrest for blocking the
sidewalk and placed him under arrest."
(R. 59-60.)
Page 382 U. S. 99
MR. JUSTICE BRENNAN, concurring.
I join the Court's opinion on my understanding that
Middlebrooks v. City of Birmingham is being read as
holding that § 1142 applies only when a person (a) stands, loiters
or walks on a street or sidewalk so as to obstruct free passage,
(b) is requested by an officer to move on, and (c) thereafter
continues to block passage by loitering or standing on the street.
It is only this limiting construction which saves the statute from
the constitutional challenge that it is overly broad. Moreover,
because this construction delimits the statute to "the sort of
"hard-core" conduct that would obviously be prohibited under any
construction,"
Dombrowski v. Pfister, 380 U.
S. 479,
380 U. S.
491-492, it may be legitimately applied to such conduct
occurring before that construction.
MR. JUSTICE FORTAS, with whom THE CHIEF JUSTICE joins,
concurring.
I agree that Shuttlesworth's conviction must be set aside. But I
am concerned lest the opinion of the Court be considered as
indicating that Shuttlesworth can constitutionally be convicted of
violating the General Code of the City of Birmingham, Alabama, on
the facts here presented. Any such conviction would violate basic
constitutional guaranties. I would make this clear now.
The Court's opinion does not challenge the constitutionality of
§ 1142 of the Birmingham Code as that section was construed by the
Alabama Court of Appeals two years after Shuttlesworth's
conviction. The opinion may be read to imply that, if Shuttlesworth
is now put to trial for violation of § 1142 as construed, the vice
of the present conviction may be eliminated. I would make it clear
that the Federal Constitution forbids a conviction on the facts of
this record, regardless of the validity of the ordinance
involved.
Page 382 U. S. 100
I agree that, as construed by Alabama two years after
Shuttlesworth was convicted, § 1142 cannot be held unconstitutional
on its face. I agree that, if there were a rational basis for
charging Shuttlesworth with violating the section as so construed,
he could be retried if Alabama should choose so vigorously to
protect the sidewalks of Birmingham. Civil rights leaders, like all
other persons, are subject to the law, and must comply with it.
Their calling carries no immunity. Their cause confers no privilege
to break or disregard the law.
But there is here no possible basis for a conviction which would
be valid under the Federal Constitution. The accused provision
would be unconstitutional as applied to Shuttlesworth's facts even
after the plastic surgery by Alabama's Court of Appeals in 1964.
Middlebrooks v. City of Birmingham, 42 Ala.App. 525, 170
So. 2d 424. [
Footnote 2/1] A
revision of the formula does not and cannot change the facts; and
those facts do not permit the State to jail Shuttlesworth for his
actions on April 4, 1962.
Taking the prosecution's version of the facts, it appears that
Shuttlesworth was one of a group of 8, 10, or 12 [
Footnote 2/2] persons who, at 10:30 a.m. on April
4, 1962, were accosted by a patrolman 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 by the patrolman,
Page 382 U. S. 101
the group commenced to move away. The officer repeated his
command, and Shuttlesworth said, "You mean to say we can't stand
here on the sidewalk?" After the third command, Shuttlesworth said,
"Do you mean to tell me we can't stand here in front of this
store?" The officer then told Shuttlesworth he was under arrest.
Shuttlesworth said he would go into the store. The officer
followed, and arrested him. There was no resistance. By this time,
everybody in the group except Shuttlesworth had moved away. The
entire incident took less than four and one-half minutes, from
arrival of Shuttlesworth and his friends at the corner to his
arrest.
For this, Shuttlesworth was tried, convicted and sentenced to
spend half a year at hard labor and to pay a fine of $100.
In my view, there is nothing in the facts which justified an
arrest and conviction. Prior to the officer's command, the
situation was that a small group of people occupying one-half of
the sidewalk were engaged in orderly conversation. Promptly upon
the officer's command, the group began to disperse, and only
Shuttlesworth remained. He alone cannot be held to have blocked the
sidewalk. His rhetorical questions may have irritated the
patrolman, but a policeman's lot is not a happy one -- and
certainly, in context, Shuttlesworth's questions did not rise to
the magnitude of an offense against the laws of Alabama. If one
were to confine oneself to the surface version of the facts, a
general alarm for the people of Birmingham would be in order. Their
use of the sidewalks would be hazardous beyond measure.
But this, of course, is fiction. It is facade for a narrower,
but no less disagreeable, truth. On April 4, 1962, the Negroes of
Birmingham were engaged in a "selective buying campaign" -- an
attempted boycott -- of Birmingham's stores for the purpose of
protesting discrimination against them. Shuttlesworth and his
companions were
Page 382 U. S. 102
Negroes. [
Footnote 2/3] They
were standing in front of a department store. Shuttlesworth, as an
officer who participated in the arrest testified, was a "notorious"
person in the field of civil rights in Birmingham. [
Footnote 2/4]
In my view, the net effect of the facts in this case is
inescapable. Shuttlesworth's arrest was an incident in the tense
racial conflict in Birmingham. This may explain the arrest, but it
adds nothing to its lawfulness. There is no basis in the facts and
circumstances of the case for charging that Shuttlesworth was
"blocking free passage" on the sidewalk,
Middlebrooks,
supra at 527, 170 So. 2d at 426, or that he culpably refused to
obey an order of an officer to move on, or remained after such an
order so as to justify arrest, trial or conviction. Any attempt to
punish Shuttlesworth in these circumstances would, in my view,
violate the Fourteenth Amendment of the Federal Constitution.
[
Footnote 2/1]
As the Court's opinion herein points out, in
Middlebrooks, the Court of Appeals stated that its
narrowed construction of the ordinance had been the "
ratio
decidendi" of
Shuttlesworth, decided a year earlier.
But there is no indication of this in
Shuttlesworth
itself.
[
Footnote 2/2]
Officer Renshaw testified there were 8, 10 or 12 people in the
group (R. 40). Officer Byars testified to 10 or 12 (R. 17).
[
Footnote 2/3]
Testimony of Officer Renshaw (R. 49). Officer Byars testified
that he didn't know what color they were (R. 27, 36).
[
Footnote 2/4]
The principal arresting officer testified that he did not
recognize Shuttlesworth, but he had seen his picture on television.
He had heard of him, had read that he had frequently been arrested,
and that he had been in the Birmingham jail. Shuttlesworth's walk
on April 4, 1962, started during a recess in a federal court civil
rights trial in which he was involved. The trial had been
publicized.