# Shuttlesworth v. City of Birmingham (382 U.S. 87)/Concurrence Douglas

* 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
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. 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. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119) is honored. For these reasons I think there was no evidence, within the meaning of Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, to sustain the conviction and hence I would reverse the judgment outright.
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.
'Q. Was that great big crowd out there and the intersection completely blocked? You testified you had half of the south-north cross walk free, that the defendants were not blocking half of the south-north cross walk, they were standing in the west part of the cross walk where they should be standing assuming they were going south, they were not blocking the east-west cross walk 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? '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.) 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, 491-492, 85 S.Ct. 1116, 1124, 14 L.Ed.2d 22, 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.
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. 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 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, 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 Negroes. 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.
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.

## Notes

* ↑ 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.
* ↑ Officer Renshaw testified there were 8, 10 or 12 people in the group (R. 40). Officer Byars testified to 10 or 12 (R. 17).
* ↑ Testimony of Officer Renshaw (R. 49). Officer Byars testified that he didn't know what color they were (R. 27, 36).
* ↑ 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.
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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