# Shuttlesworth v. City of Birmingham (382 U.S. 87)/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Douglas
United States Supreme Court
382 U.S. 87
Shuttlesworth v. City of Birmingham
Argued: Oct. 11, 1965. --- Decided: Nov 15, 1965
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. 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, 85 S.Ct. 881, 13 L.Ed.2d 793.
The two ordinances which Shuttles-worth 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.
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,' and walked into the entrance of the adjacent department store. Byars followed and took him into custody just inside the store's entrance.
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.
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. 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. State of Louisiana, 379 U.S. 536, 559, 579, 85 S.Ct. 453, 466, 469, 476, 13 L.Ed.2d 471, 487 (separate opinion of MR. JUSTICE BLACK). Instinct with its ever-present potential for arbitrarily suppressing First Amendment liberties, that kind of law bears the hallmark of a police state.
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. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; United States v. Burnison, 339 U.S. 87, 70 S.Ct. 503, 94 L.Ed. 675; Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99. 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, however, until its decision in Middlebrooks, supra, two years after the petitioner's conviction in the present case. 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.
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.
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, he testified unambiguously that he directed the petitioner's group to move on, to 'clear the sidewalk and not obstruct it for the pedestrians.'
Five years ago this Court decided the case of Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. 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 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 199, 80 S.Ct. at 625. 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 206, 80 S.Ct. at 629. See also Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207.
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.

## Notes

* ↑ This was a trial de novo on appeal from a judgment of conviction in the Recorder's Court of the City of Birmingham.
* ↑ 'Count One
* ↑ 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.
* ↑ See note 2, supra.
* ↑ Thornhill v. State of Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093; N.A.A.C.P. v. Button, 371 U.S. 415, 433, 435, 83 S.Ct. 328, 338, 339, 9 L.Ed.2d 405; 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. People of State of California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205; Baggett v. Bullitt, 377 U.S. 360, 371, 84 S.Ct. 1316, 1322, 12 L.Ed.2d 377.
* ↑ Lovell v. City of Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949; Kunz v. People of State of New York, 340 U.S. 290, 293, 71 S.Ct. 312, 314, 95 L.Ed. 280; Schneider v. State of New Jersey, 308 U.S. 147, 163-164, 60 S.Ct. 146, 151-152, 84 L.Ed. 155.
* ↑ 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.
* ↑ 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.'
* ↑ 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.'
* ↑ 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 dont's 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.'
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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