noting ‘‘ever-present hostility and simmering rage of many persons from poor and minority communities about unjust police conduct’’
How later courts described this case
- noting ‘‘ever-present hostility and simmering rage of many persons from poor and minority communities about unjust police conduct’’
Written by the judges who cited it.
The opinion
JOHN B. ROBBINS, Judge, concurring. I also would affirm appellant’s conviction. I believe that the proof recited in the majority opinion, which describes the yelling, cursing, and actions of the appellant, constitutes substantial evidence to support appellant’s conviction for disorderly conduct. However, I feel compelled to write this concurring opinion to give some additional response to the dissenting opinion.
While the dissent addresses the merits of the sole issue raised by appellant on appeal and agrees with appellant’s argument that the evidence was insufficient to support his conviction, it appears that the major portion of the dissenting opinion advances the proposition that the initial contact by policé with appellant, the appellant’s arrest, and the charges filed were racist, i.e., that they occurred as the result of racist judgment on the part of the law enforcement officers involved. If I am correct in this observation, I note that the dissent raises an issue not raised by appellant, proceeds to argue the issue for the appellant, and concludes by suggesting surprise and disappointment that the majority of the judges deciding this case will not address the issue raised by the dissenting judges and agree with their presumptions. It would be contrary to well-established rules of appellate review for this court to engage in such a procedure.
Furthermore, in order to create the issue, it was necessary for the dissent to presume that the police officers involved in this incident were white. There is nothing in the record that supports this presumption. While I do not know that the officers were not white, neither do the dissenting judges know that they were. Then, based on this presumption, the dissent presumes that the actions of the police officers were not reasonably responsive or justified by the conduct of appellant, and would not have occurred but for the fact that appellant is black. I submit that a white man who yells and curses at a police officer, and who jerks his shirt off, clenches his fists, and assumes a fighting stance toward the police officer would likely be arrested and charged just as quickly as appellant was.
I do not condone discriminatory conduct by anyone, especially by officers charged with the responsibility of enforcing our laws. While I respect the dissenting judges’ sensitivity and zeal, and do not for a moment question that racial equality is a noble cause, I do not believe the thesis they advance is relevant to the argument advanced by appellant or to the facts presented by the record in this case.
[A judge] is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.
—Benjamín N. Cardozo, The Nature of the Judicial Process 141 (1921)
Courts stand ... as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or ... non-conforming victims of prejudice and public excitement. Chambers v. Florida, 309 U.S. 227 (1940)