Respondents Brief — Turner v. New York

Supreme Court brief1967

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In THE JOHN F. DAVIS, CLERK

3 Supreme Court of th United States

>. October Terr

4 ° ene ee eee eee

ANS 5

~ No. 399

. e

~ .

‘ , a

WuuusMm Turner, AupretT Manze, evi Lavs, RioHaRp

Ruoaps, THEoporeE Ostrow, Joyoz CHapwick, ELLen

Suauurr, Antoun Kunis, Bruno EcxkHanpt, VINcENT CopPE-

LAND, JEREMIAH GELLES, ANN KYLLINGSTAD, PIERRE MxIs-

wes, Freep JproMz, JEREMIAH TEAHAN, Key Martin, RopertT

APTER, ess vA

7 Defendants-Petitioners,

_ against

Tue Prorte or THE Stats or New York,

Respondent.

RESPONDENT’S BRIEF

’ Frank S. Hogan

District Attorney

New York County —

Attorney for Respondent

155 Leonard Street

New York, New York 10013

H. Riowagp UviuEr

Freverioxk P. Harerz |

Assistant District Attorneys

Of Counsel

ELPA LES AE IS 6 HL EEL OL EN APPL RTE RNEE RES FRY RE IE EC NE DTH RNEE Dt MECPNET A OE RA DY EPI Nt

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TABLE: OF CONTENTS

7 : PAGE

7 Ormmi0ns Bmow ielicsuniep escheat enter viata ee

Questions Pemaekan Ree SEE ene een oad adage = ie

Sow ¢ :

Tare Sparute INvonvap oo... eccecceceee. Sic ntact i

STATEMENT a wo ena ed ae me seek spain sink 3

Tue Basen xatadotenton TaeMemey ek aac nace. Seana na

The People’s Case Mion Nene aNy/ Oat MEER oi —

The scene prior: to the police ondera Pm disperse 3

The orders to disperse and subsequent events —-5

a Rees ornaeee sadeninceenseadeeii scleiiosts 10

SumMary OF ARGUMENT 2.00.20... A ee

Pour I—New York’s disorderly conduct statute, as —

_ ©» construed by its courts and as applied here, does

not infringe upon the rights of the defentlants

under the First and Fourteenth Amendments ....... 18

OOMORUBRON . ....2......ce..eccckees ice Se = Se aceon NER ae 28.

| TABLE OF AUTHORITIES

Cases: :

Adderley v. Florida, 385 U. 8. 39 (1966) ......... sical 21

Cantwell v. Connecticut, 310 U. S. 296 (1940) .............. 21

-Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) 25

Cox v. Louisiana, 379 U. 8. 536 (1965)........,..7.. .21, 23, 24, 25

Cox v. New Hampshire, 312 U. S. 569 (1941) OR. 21, 22, 23 .

ur ee a

oat ivy : PAGE _

‘ Edwards v. South Carolina, 372 U.S. 229 (1963) ........24, 25

Feiner v: New York, 340 U. S. 315 (1951) ...c..0. 20, 21, 24

Hague v. CIO, "307 U. S. 496 (1939) Se eranmrenees (a

Peseta eek N.Y.2a 327 CL a a

~ People.v. Feiner, 300 N.Y..391 (1950) .............:.cce. 19, 24

People v. Galpern, 259 N.Y. 279 (1932) ........ ie seas 19

People v. Most, 171 N.Y. 428 (1902) o........cccccccccsssee ae

- People v. Nixon, 248 N.Y. 182°(1928) ........: ES 19 .

People y. Penn et al., 48 Mise.2d 634 (App. Tern’, Ist

: Dept. 1964), aff'd 16 N.Y.2d.581 (1965), cert. de- .

<6 gaged, 988 TW, B. GB (2908) oo sas.eccicssscecccscsceeieue “4 19

as inset dds 362 (1984) kt Womens o

Schneider v. State, 308 U. 8. 147 (1989) 000° QL

Shuttlesworth v. Birmingham, 382 U. S. 87 or .20, 21, 22

Constitution and Statutes: a

New York Penal Law, Section 722 -....... 2. 3, 17, 19, 24, 95, 26

United States Constitution, Amend. I ..............0..0:00000:. 2,18

United States Constitution, Amend. XIV ..................... . ¥:

Periodicals:

Emerson, Toward a Siinad’ Theory of the First.

} Amendment, 72 Yale L. Jour. 877 ere Lawseales 21

\ ; :

IN THE

Supreme Court of the United States

~ a October Term, 1 1966 ee ‘

No. 399 i

. ° :

WruiiaM TuaNEe, ALBERT ‘Manu, Levi ait; RicHarp ©

Rxoaps, THEopoRE Ostrow,. Joyor Cxapwiox, ELLEN

SHauuit, ArtHur Kunis, Bruno. Eoxxarpt, VIncENT Corr;

_ LAND, JEREMIAH GELLEs, ANN Kyiirnestap, -Prerre Mzts-

ner, Frep J at JEREMIAH TEAHAN, Kay Masri, Ropert __

APTER,

; Defendants-Petitioners,

2 against ‘

___Tus PEorz oF THE Srars-or New Riek:

Respondent.

: > iy ¥ . , 7 .

| pret cer iichy BRIEF |

Opinions Below

The trial court did not didioes an opinion. The ¢ opin-

ion of the Appellate Term is reported at 48 Misc. 2d 611

(1st Dept. 1965). The affirmance of the Court.of Appeals,

without opinion, is reported at 18 N. Y. 2d 683 (1966).

(2)

Questions Presented

Dia the Constitution’ s guarantees of-free speech and

_assembly preclude. police frdm ordering the dispersal

ofa political protest meeting held in Times Square,

after observing that. the gathering substantially inter-

fered with pedestrian and vehicular traffic in the area?

Are Sections 722 (2) and:722 (3) of New York’s Petal

Law unconstitutional on their facé or as applied to

convict of disorderly conduct those members of an

: __ assembly who refused to move on in ‘obedience to a

(3)

~ reasonable police order, and who acted in a manner

which disturbed and obstructed others?

Did the petitioners receive adequate notice of the .

_ @harges in the complaint which alleged a failure to obey .

a police order te move ont “ ¢

The Statute Involved |

The relevant portions of Section _ of the New York |

. - Penal. Law provide:

. “Disorderly | Condnet a ae

of the peace, or whereby a breach of the peace may be

occasioned, commits any of the following acts shall be

deemed to have committed the offense of, disorderly |

errasnacey

«2, Acts in such a manner as. to annoy, disturb,

: interfere with, obstruct, or be offensive to others; -

eee. ° Congregates. ‘with others on a public street .

and refuses to move on when ordered by the police; 3.

eg. By his actions causes & crowd to collect, except

; when — ane such a crowd ; nad

Se eee ee

re ‘Any persor person who with intent to provoke a breach |

. Statement

On’ August 8, 1964, a complaint was filed. against the as

defendants in the Criminal Court of the City of N ew York,

charging them with disorderly conduct.in violation of New

| York Penal Law, Section 722, Subdivisions -2, 3 and 4 (R.

1).* On October 2, 1964, after’a joint trial, defendants

were found: guilty as charged (Impeiitrerr, J.), and on

November 18, 1964, sentence was imposed (R. 278, 279).

Defendants Maher, Laub, Rhoads, Ostrow, Shallit, Cope-

land and Teahan were sentenced to pay a fine of twenty-

five dollars. or, in default thereof, to serve five days in

jail. . The remaining defendants received —— sen-

tences (R. 279).

On appeal, the Appellate Term, First ciitiiaad: a

firmed the judgment with an opinion (R.-284-314). The

Court of Appeals affirmed the order of the Appellate Term.

Certiorari was granted by this Court on October 24, 1966.

; THE EVIDENCE eee cee

‘The People’s ‘Case :

The scene prior to the police indste to disperse: |

At about 4 p.m. on Saturday, August 8. 1964, approxi-

mately 200 to 300 persons were gathered on Duffy Square,

‘a concrete island extending from 46th to 47th Streets be-

tween Broadway and Seventh Avenue (Behr, R. 5, 11;

* References, unless otherwise indicated, are to pages * the Tran-

script of Record in. ae Court. ;

. =a

Walsh, B. 90, 95; Koopman, B. 108). Bearing placatds, _

the group loudly chanted, ‘‘Down with American Imperi-

_alism. “Stop the war in Vietnam,” ‘accompanied by de- -

fendant Eckhardt’s “beating on a large, kéttle drum; sev-

; eral paper effigies had been set up on a sidewalk portion

the Square by Eckhardt and the defendant Kunis (Behr,

/R. 10; Koopman, R. 108, 110):, Shortly after 4 p.m. the

Sy defendants Laub, Luce, Copeland and Maher mounted

C steps leading to a statue at the northern end of the Square »

and Laub, through: an electric megaphone, addressed the

crowd (Behr, R. 5, 11; Koopman, R. 107 ). 7

As Laub began to speak, the group ‘‘jamming’’ toward

| him, covered the width of the Square “from side to side”

and began ‘‘spilling out into the street’? (Behr, R. 12, 26-

ie Koopman, R. 11Q). Automobiles were ‘‘veering sharply .

ae the right on Broadway and to the left on Seventh Ave-

. Bue to avoid’’ demonstrators in the street—including Kck-

-hardt, Kunis and. Kyllingstad—-and pedestrians whom the

- demonstrators, blocking the sidewalks on the Square, had

forced into the street (Behr,.R. 12; Walsh, R. 90; Koop-

- man; R. 110). Thus compelled to walk in the street, pe-

destrians complained to several police officers present

' (Behr, R. 21-2). Other “pedestrians couldn’t get through

_ the street. to.the. bus stop’’ on the Square (Walsh, R. 90).

-- Qn the Broadway and Seventh Avenue sidewalks opposite

the Square were approximately 4,000 to 5, 000 pedestrians,

several thousand stopping to look at the demonstrators |

ipeke, R. 14; Koopman, R. 108-9, bead

5. wee.

The orders to disperse and subsequent events

Detective Fritz Behr testified that after Laub spoke

briefly, introducing the defendant Luce, a police inspec-

tor and @ police captain approached Laub, Luce, Cope-

land and Maher at the stairs to the statue.(R. 8). The -

: captain informed them-that because the demonstration was

interfering with pedestrian and vehicular traffic, the meet-

ing would have to be terminated (R. 9). Laub then took

the megaphone from Luce and told the crowd :

‘The captain standing on my left, I think he should

be standing on my right, has informed me that we

. can’t gontinue our mere demonstration here” (R.

9)... .

- He then stated that, ivvtithabon: the demonstration would

continue; and. he returned the megaphone to Luce who

Spoke briefly and in turn introduced Copeland '(R. 9).

Copeland stated that ‘‘if everybody stayed there and pro-

tested to the utmost, that the police department wouldn’t |

do anything about their meeting’’ (R. 10). :

-. At this point the police captain again approached Laub,

Lice, Copeland and Maher, and repeated his order to dis-— |

perse (R. 10). Taking the megaphone, Laub again-urgéd

the group not to disband (R. 10). The crowd began chant- -.

" ing, ‘‘Let him speak. Let him. speak”’ (R. 18). The cap-

tain signalled fifteen policemen, including two on horse-

back, over to the Square (R. 20-21). Behr further-testified

_ that the defendant Maher struck one of the horses several

times with a rolled-up wR: (RB. 48). r

Patrolman Henry Campbeil testified that after the cap-

tain directed Laub to break up the meeting and Laub urged:

the crowd to stay, <‘Then the whole crowd started to run

- all-over the place and they were running in the.gutter and’

on the sidewalks (R. 63-5). -Campbell approached Laub on

the sidewalk of*the Square and told him several times to

move on (R. 65-6). Laub refused and was then placed un-

der arrest (R. 66).

. Patrolman Joseph Hines testified that after the sallies

Jeiethibe spoke to thie defendants at the stairs to the statue,

‘Copeland .ran.-baek and forth across the Square with a

loudspeaker, calling persons over to lim (R. 68-9). He

was arrested after he again mounted the steps to the statue

and refused to leavé the area (R. 69).

_ Patrolman Donald Walsh testified that after the police

- eaptain told the speakers to break up the meeting, the de-

fendant Apter began:

‘running from the sidewalk to the street, back and

- forth, speaking to the crowds, tellitg

-.our orders to get back on the sidewalk/and to make

openings for pedestrians” (R. 88)<~Walsh told Apter

‘‘Stop telling them this and- behave “yourself”’ where-

‘upon Apter ran out in the street,.yelling to the oa

‘‘Stay where you are’’ (R. 88-9). .

'’- Placed under arrest, Apter threw himself down on the

Square and screamed ‘‘brutality, fascist police’? (R. 89).

.As the officer attempted to get him up, the defendants

Teahan and Martin intervened, pulling on Apter and shout-

ing ‘‘Police gestapo’’ (R. 89-90). Told to move on, Teahan

a; .

not to obey .

end Martin refused, whéreupen they were placed under

arrest (R. 90).

nis’ f :

Detective Francis Koopman and. Patrolman Robert

’ Annitto both testified that after.the speakers were ordered .

* to break up the meeting, Maher began running around the —

~ Square, waving a placard, and when mounted policemen

arrived on the scene, Maher ‘‘ran over to gne of the horses *

. and started smacking it’’ with a placard (R. 38,110). An-

nitto testified that the officer kept the horse under control

(R. 99), while Koopman. stated that the horse reared up on

its hind legs when struck (R. 113). Annittd also testified .

that he observed .the defendant Turner standing on the .

sidewalk in front of two policemen, ‘‘tryjng to keep them”’

from bringing another of the defendants ‘into a police car

(RB. 100). Turner was hollering, ‘‘Leave them alone’ and

‘*fascist police” A(R. 99-100).

Patrolman George Knoll testified that he appreached fs

the defendants Gelles and Turner and a third person who

were standing close together on the sidewalk of the Square

and said, ‘‘You fellows can’t stand here. -You are blocking

the roadway and * * * the pathway’’ (R. 82, 84). Gelles

yelled, ‘‘Oh, you fascist cops. You think you can get every-

thing and do anything you want”? (R. 83). Asked twice

more to move ‘on, Gelles refused, and was then placed un-

“der arrest (R. 83). Moments later, Knoll observed the de-

fendant Kyllingstad on the sidewalk of the Square “‘in a

very loud conversation * * * with a sergeant’? (R. 83-4).

She slapped the sergeant, eee Knoll placed her un-

der arrest (R. 84). . ' -

. |

Patrolman Joseph McNulty testified that after the con-

versation between the police captain and the speakers, the

defendant Meisner began ‘running around Duffy Square

Park calling to others, shouting that they did not have to .

- leave; that they could stay’? (R. 46). McNulty approached

‘Meisner on tre sidewalk of the: Square and told him to

move. on, whereupon he refused and was placed’ under ar-

"rest (R. 46-7). “After the oriler to disperse,.the defendant

Jerome, carrying an American flag, began ‘‘running from .

one group to another,’’ shonting that the ‘‘ Fascist police’’

had no right to stop them. ‘‘As the mounted patrolman

would disperse. a group, the defendant Jerome, with the

‘flag, would run behind the horse and call to others’’ (R. 47-

\8).. Ordered to move on, Jerome said “no” and was then

arrested (R. 48). -—

Patrolman Herbert Engelhardt testified that “after the =

crowd was told to disperse, he observed the defendants

Kunis and Chadwick on the. sidewalk being told to move on

(R. 52, 55-7). ‘Kunis then ‘‘ran out into the middle of

Broadway and laid down’’ (RB. 56). When policemen tried .

to move Kunis from the street, Chadwick ‘yelled, ‘‘Leave .

him alone, fascists’’ (R. 52). Again told to move on, Chad-

wick then: sat down on the sidewalk and when an officer

,. attempted to pick her up, she bit him (R. 53). She was then

| Placed in a patrol car (R. 53). s

” ‘Meanwhile, the defendant Shallit was moving all over

the area shouting, ‘‘Do not leave here * * * Come back. We

have our rights.. Don’t give jn to-the police. They are

fascists they have no rights’’ (R. 53): The witness briefly —

lost sight of ‘her then ‘‘saw her again in front of about five

- 2 °

° . / F

_ people. She was sbtaitty oii most of the dite and —

pushing back at * * * police officers trying to move the

people back’’ (R. 53-4). She WAS | then placed under arrest

SO ae :

Patrolman Edward I. Fahy ‘testified that upon observ-

} ‘ing Kunis standing on \the .sidewalk of Duffy Squar

screaming, ‘‘fascists, police brutality, gestapo,’’ he tol

Kunis to. leave the area whereupon Kunis ‘‘ran out into\;

the middle of Broadway and faid down”’ in the second lane

of traffic (R. 74, 75). @ahy went out to him and told him to

get up (R. 74). Kunis ‘‘continued to lay there. Traffic was

getting backed up’? SO Fahy, assisted by ‘Patrolman Coffey,’

carried a nck “imp” body into a — car (BR. 74).

At: this polit: Fahy daseved the defendant ‘Bekhardt

_ “lying in the migdle of Broadway’’—also in the second

_» lane of traffic (R. 74-5). The officer told him that if he did

hot get up, he—would—be—arrestett_whereupon Eckhardt

- threw his arms up and said, ‘‘Here I am’’ (R. 75). Fahy

ae placed him under arrest (R. 75).

puivchase: heaewe 7 Coffey testified that he asgisted Pa-

trolman Fahy in arresting Kunis after he lay down in

the street (R. 59): At that time ‘‘[T]here. was & melee in”

Duffy. Square itself and everybody was running around

' yelling ‘fascist’ cops’ ”’ including the defendant Rhoads who

' was standing on the sidewalk ‘screaming at the top of his

lungs’’ for five.or ten minutes (R. 60-61). Rhoads ran to the

statue. Then observing Rhoads run to the: statue area of |

the Square, Coffey followed him and told him to move on

(R. sia Rhoads refused, the officer — his. order,

ae 7

- 10 ?

- Rhoads again refused and was placed initia arrest (R. 61).

As the officer put Rhoads into a taxicab, assisting the police,

the defendant Ostrow came from the Square into the street

“yelling ‘fascist cop’ ”’ and ‘‘making a lot of noise’’ (R.

62). Upon his refusal to be quiet, Ostrow was placed anor

arrest (R. _

‘The Defense

Phillip. Luce testified that, he was one of the organizers -

and leaders of the meeting at Duffy Square (R. 123). Some-

where between 100 and 150 people - had gathered .there.

. After the introductory speeches a police officer appeared

‘and said that ‘“‘this is an illegal. meeting and has to be

stopped. immediately. You have no right, to hold a meeting

in Duffy Square” (R. 126). After the defendant Laub re-

lated to the crowd what the police officer had said, they did _

. not move, and Laub continued to speak. Suddenly, two

horses rode into the crowd, and the police began arresting

those who were gathered on the steps (R. 121).

’ According to the witness, the group had been absolutely

quiet until the police arrived on the. scene (R. 134). There. .

. had been no diversion or interruption of vehicular traffic,

-and the entire agsembly was in the Square, though it was

possible that: sorhe people might have been, in the street

* (R. 125- 6, 134). Ten thousand leaflets had been printed and

distributed’ around the city, announcing the nami (R.

167).

Joseph Leliveld testified that he is a reporter for the

_ New York Times’ who had been assigned to cover the

meeting at Duffy Square on August 8. When he arrived

_ shortly before 4 o’clock there was a net-work television car,

? s . ; ’

” e

on the scene, but apparently the demonstrators had not yet

arrived (R. 148). Then, a group of people with signs ar-

rived and formed into ranks (R. 149). Signs were dis-—

_tributed and leaflets were circulated. Lae

Early in the meeting, at which there wére no more than

. 60 people, Captain McCallister stepped up and asked who

had given them permission to hold the. meeting in Duffy

Square: ‘‘And I think his first words were, ‘Hold this up. .

Who is giving you permission?’ Something to this effect’?

(R. 150-51), Using the bullhorn, Laub: responded, ‘stating

that they did not need permission (R. 151-2). The captain

withdrew and after'a short while returned, stating that if

they did not disperse they would be subject to arrest for —

disorderly conduct (R. 154). ‘‘[A]t that point things got

a little out of hand, because,a number of people seemed to

start making speeches’’ simultaneously, and ‘‘there'were a_

lot of people that were just plain shonting’’ (R. 154, 163).

When the captain’s warnings were not. heeded, about a

dozen policemen plus two mounted policemen moved .into

the area and began dispersing the group (R. 155). A ma-

‘jority of the group actually moved out of the area, but about °

20 tried to hold their ground. It was this latter group

which the police began arresting (R. 155-6, 163-4).

The witness further stated, that although he was not

sure, he did not observe any interruption of traffic prior

_to the arrival of the police on the scene (R. 156-7). Nor did

he hear ‘Captain McCallister at any time inform the group

that vehicular and pedestrian traffic was being blocked by’

this demonstration (R. 159-60). He did see’a girl hit a po-

lice Officer with her fists (R. 160)...”

stad being taken half-d

es Albert Maher, a defendant, testified that he had been :

at Duffy ‘Square to participate in and ‘‘speak at a meeting

_ to protest the war being carried on now by the United

States in Sotttheast Asia’’ (R. 168).

The defendant acknowledged having hit two horses,

several times, both with a placard and his hand. He claimed

to have done so in order to stop them from going into the ©

crowd (R. 169-70). a

Ten thousand leaflets had been sent out to advertise the.

-Ineeting, and about 100 people were in attendance (R. 172).

_ Bullhorns were used to amplify the speakers’ voices (R.

per |

Theodore Ostrow, a defendant, testified that he had

gone to Duffy Square to attend the meeting 4B. 1745) eine

, Where about 82 or 100 people. had assembled. When he ar-

” ‘rived, Miss Shalit handed him a black armband so that he

could be identified as a monitor, in the demonstration (R._

174). He was to make ‘‘sure that the participants in the

meeting would stay within the. Duffy Square- area and ,

would not go into the street; and if any disorders I could

. handle did break out, I should try to subdue any ruckus or

yelling; or what i have you’’ (B. 174-5). .

“Phe defendant stated that he was arrested about a

or four minutes after the police horses arrived (R: 176).

_He was maintaining his position in’ ° the Square, although

“moving “‘to avoid the hgrses, which were charging in about

every direction,’’ when oe the defendant Miss Kylling.

ged and half walking’? to a pa-

os oe |

trol car or taxicab (R. 176). A personal friend of Miss”

Kyllingstad, he walked over to the officers and informed

them that she éould not, be arrested, because she has a

young baby (R. 177, 179).. The officer replied that ‘they

would ‘‘take care of that later’’ and the defendant was then

shoved hackwards towards Duffy Square Park into a group:

- of two or three’ officers where he was held and then ‘‘shoved —

by them again almost into [his] original position’’ (R. 177).

‘He was then taken to a. taxicab, and bee under arrest

(R. gia

J soni Techan, a defendant, testified that he had _

gone to the meeting “to hear what the May 2nd Committee

had to say: in 1 regard to the foreign policy of the United -— ;

a Southeast Asia’? (R. 184).

. Prior to his arrest he had walked te ahiin the defend-

ant Kunis was lying on the sidewalk (R. 186).. The defend-

ants. Chadwick and Eckhardt were also there (R. 185).

Kunis was carried to a car, where he was joined by Eck-

- hardt (R. 186-7). Teahan ‘‘then went down. further [and]

was pushed away from-there by. several policemen’? (R.

187).. Down further, where Copeland was being taken to a’ -

squad car, Teahan claimed he was then pushed ‘ont of the

way * * * into the street?” by Captain McCallister, where-

upon a policeman told him to ‘Get out of the street” (R.

187, 188). Another ‘policeman then pushed him back onto

the sidewalk where he stayed until. still another policeman

asked him what he was doing there. He.réplied that he ©

was trying to stay away from the horses. / -“In the confu- -

sion, somehow or other, someone pushed”’ him back into the

road, in front df a squad car (R. 188). A policeman grabbed

him from behind and took him to a taxicab, where the de-

- Bree"

Witpe > 14 ne ; a:

® - .

- fendants ‘‘Key Martin and-possibly Apter, had been al-

ready along with Patrolman Walsh?’ wWho-then “‘proceeded —

té punch (Teahan). in the mouth, with _ witness

ent’’ (R. 188-9). | : “ ' ag *

'.. Key Martin, a defendant, test’ fied that + he was at — oS,

‘Square on August 8, ‘‘to speak on behalf of Youth Against ©

War and Fascism, at \a rally opposing the United States |

War in Vietnam. and opposing what seemed at that time

to be the imminent expansion of that war”’ (R. 192-3). ; ee |

Because of his concern for his fellow-peakers, Cope-

land and Meisner, he followed them after they’ had been

- led away. by the police (R. 193). A minute iater, an officer —.«

asked: if he wanted ‘‘to go too’’ and together with ciel

policeman, took him to a cab (RB. 193). _

Robert Apter, a defendant, testified that Patrolman:

Walsh warned him that if he did not move he’ would be

' arrested (R. 201-02). A few seconds later, while he was

“urging people to stay there and to re-group and have a

peaceful meeting”’ Patrolman Walsh grabbed him and said,

-“T told you to move. You are under arrest’? (RB. 202).

On cross-examination, the defendant acknowledged that

he e had been running around and screaming, and that after

“the pelice would tell People ta move al he would tell them —

to stay (R. 203-4). a. [

Brufio Eckhardt, a defendant, testified that he attended | “

the meeting in Duffy Square as part of ‘a puppet theater

‘group (R. 205). Their equipment included a four-head

soldier puppet, which was held by two men wearing skull

masks, and a big kettle drum, which the defendant played

e : 15

but which he stopped playing when told to by the officer (BR.

He observed: Kunis being carried to a patrol car after

Kunis had sat down on the sidéwalk (R. 207). Yckhardt

followed him,: opened the door and sat down next to him

~207). It was not until he was in the station house that:

- che learne was under arrest (R. 207-8). :. ©

Joyce Chadwick, defendant, testified that she is a

friend of the defendants Eckhardt and Kunis, and had

come to the meeting with them (R. 213-14,.216). She and

- Kunis were standing on the steps to the south of the statue |

» When the police approached’ (R. 215-16). Kunis “walked

down, off the steps, onto the sidewalk and sat down orthe

sidewalk, not in the street’’ (R. 215). 7

The ‘defendant acknowledged that she did try to bite .

officer Engelhardt, but she did not believe she had punched |

him (R. 210). She further stated that she did nothing after 7

the officer told her to move off the steps (R. 218, 220).

"Ann Kyllingstad, a defendant, testified that she did_

. strike a police officer on the back: This occurred while the-

- defendant Laub was being placed under arrest (R. 230-32).

Several officers had approached her and said ‘‘Come: on,

Miss, if you do not move on you will be arrested”? (R. 234).

; Arthur Kunis, a , defendant, testified that at the-time

of his arrest he was sitting i in the vicinity of the flagpole,

on the west side of Duffy Square (R. 222-3). The-horses

had been ‘‘turning in circles around, knocking people all

over, and policemen on the horses swinging their clubs at

people’’ (R. 223). Upon witnessing this, the defendant felt”

that he ‘‘had no other‘recourse but to sit down-and refuse

to cooperate.’’ When the police arrived he “went com-

. pletely limp and laid down” on the sidewalk (B. 224-5).

He denied yelling or screaming (R. 228).

> Pierre "Meisner, a defendant, testified that after the

police orders to disperse, he began: shouting ‘‘Let them

~ speak’? (R. 236) and_may: have shouted ‘That they did

’ not have to leave’’’(R. 237-8). He denied being told by an

officer to leave the area (R. 238).

William Turner, a defendant, testified that he-had been .

assigned as a monitor at the meeting—at which possibly 100-

_ , people were in ‘attendance—to maintain order, allow for

“pedestrian traffic and a ane. people out of the street (R. 239-

40). N

* The crowd (including the deitadant) has been chanting

‘‘Let them speak,”’ apparently determined ‘‘to drawn -dut

* * * any further orders”’ when,. after about a minute and —

- a half, the captain left the scene and ‘‘suddenly, the patrol-

men oat the horses came from'each side of the Square, be-

hind the monument; and they appeared to charge headlong . .

into the center of the crowd, and then began to move

around, forcing people,off the sidewalks on either the west :

or the east side, of Daffy Square’’ (R. 241-2, 244-5). ‘The ;

defendant walked up-the steps, holding his placard up, say-

- ing nothing (R. 242). On several occasions he was moved,

" but he continued to hold his “placard up to the people to see

what I was there for’’ (R. 242). Finally, he was taken to

a car (R. 242-3, 247). :

The defendant denied ever screaming ‘*Fascist police”? |

or “*Leave her alone”* al _ .

Cc .

caaatniaanetan oe a guctqqeen ieciidueds

R 17 e

. é

_ Symary of Argumeit

Choosing for assembly an area wholly unrelated to its

purpose, but calculated to obtain the dramatic publicity i in-

herent in a major disruption of that area, petitioners and

several hundred others gathered in Times Square on a ©

: busy afternoon. Spilling into the roadways, menacing the

safety of vehicular and pedestrian traffic, the group was,

asked repeatedly by the — to disperse.

Petitioners refusal to do so constituted a violation of:

New’ York Penal Law Section 722, Subdivision 3. -As con-

strued, that provision punishes refusal to obey an order to

move én only if that order is based on serious and substan-

tial interference with normal commerce. The police action

-here, pufssuant to\that statute, was a classic instance of the

neutral regulation of time, place and manner of public

‘demonstrations’ that this Court has consistently deemed

constitutional. Wholly unsupported i in the record is peti- |

tioners’ bald allegation that hostility to > petitioners’ views

menrEnS the arrests. r

Hven should this Court hold unlawful the police order

fo move on, the chaotic excesses of petitioners’ conduct in

the course of refusing that commarid amply justified their

~ conviction of Section. 722, Subdivision 2. Sharply cireum-

scribed by New York courts, that provision proscribes only

substantial disturbance and annoyance to others.” Strug- —

gling to-avoid the consequences of titeir tumultuous behavior

after the order to disperse, petitioners claim that these acts

were not charged in the complaint; examination of the com- |

‘ plaint, however, reveals that petitioners had. full and fair —

notice of i vee. 7 |

A - POINT I

_ New York’s disorderly conduct statute, as con-

strued by its courts and as applied here, does not in-

fringe upon the rights of the defendants under the

First and F ourteenth Amendments.

- Heralded by the distribution of 10, 600 leaflets, a political

protest meeting was unwisely held at 4 p.m. on an August

Saturday on a small concrete island known as Duffy Square,

located in the middle of the north end of Manhattan’s busi-

est hub, Times Square. - Although initially peaceful, the

gathering. was too large, attracting hundreds of persons -

‘who, ‘quite naturally, began to spill off the narrow confines

of the island into‘the vehicular roadways which surround it.

- Pedestrian traffic was forced to. circumnavigate the pro-

_ testers. Automobiles swerved to avoid the pedestrians in

” traffic Janes. People were unable to get to the bus stop

located on the,island. The curious stood by the thousands,

_ according to police . estimates, congregating around. the

square to observe the scene. “Thus, a classic instance of

interference with the normal flow of pedestrian and vehicu- —

lar traffic developed, endangering life and limb as well as

disrfipting the orderly commerce of a. thronged municipal |

i —-quarter. } 0

”

Presented with this diitinene situation, the sities acted

wisely and with restraint, repeatedly" approaching the lead- °

ers of the group and directing that the meeting on Duffy *

Square be disbanded. Out of the petitioners’ response to

- this obviously necessary and perfectly proper direetion

arose ‘their arrests. . According to the police accounts |. ”

credited by the fact finder, eacl of the present petitioners

reacted i in'a manner calculated to provoke disturbance. Not ¢

only did they refuse to disperse, but they loudly exhorted

the crowd to, stand fast, inveighed against the police with

‘ eries of ‘‘fascist’’ and ‘‘gestapo,’’ slapped -police horses,

assaulted police officers; and rushed into the roadway | to

form human traffic obstacles. Kor this active and aggres-

sive resistance to-the lawful efforts of the police, they

were arrested, tried and convicted. They now attack those

aaron on constitutional grounds. Se

Penal Law, Section 722(3) -

- Petitioners’ willful’ failure to obey the en oxides to

move on constituted a violation of New York Penal Law

Section 722, Subdivision 3. As construed by the New York

courts, this law punishes only the refusal to obey a reason-

able order [People v. Galpern, 259 N.Y. 279 (1932); Peo-

ple v. Nixon, 248 N.Y. 182 (1928) ; see People v. Penn et al.,

48 Misc. 2d 634 ¢App. Term, Ist Dept. 1964), aff’d 16 N-Y.

2d 581 (1965), cert. denied 383 U.S. 969 (1966). The criteria

of reasonableness are the necessities of the situation in

which the order was issued. Illustrative of New York’s

construction of the ‘‘reasonable order’? is the Court of Ap-

peals’ decision in People v. Feiner, 300 N.Y. 391 (1950), up-

holding. deferidant’s éonviction under Subdivision 3. Ad-

dressing. ‘a sidewalk crowd of about seventy-five people, .

Feiner, several times refused to move on when ordered to

do so by a policeman. Deeming the order law®tl, the Court.

of Appeals relied upon the-€vidence' that thetrowd “filled

the sidewalk and spilled - out into the. adjacent thorough-

fare, obstrugting or impeding pedestrian and vehicu-

_ lar traffic’” [id. at 400], and tha’ defendant's speech ‘‘in-

- flamed and agita »? the audience to the: ‘point ‘epee

lence was threatened”? [id.-at —.

iT .

: ~ fe

‘That, judgment was reviewed by this Court in Feimer

v. New York, 340 U. S. 315 (1951). .There, considering for

the first time the constitutionality of a ‘move on’? statute, §g

_ this Court affirmed the conviction, relying§?as did the high ,

; -- Sgourt of New York, ‘on the traffic disturbance and ‘inflam-~*

: matory nature of defendant’s speech. i

More recht, this Court addressed itself to a ‘‘move

on’’ statute in Shuttlesworth v. Birmingham, 382 U. 8. 87

(1965). Defendant, there was convicted under a Birming-

_ ham ordinance setting forth, two separate and disjunctive

offenses: (1) obstruction of free passage on a sidewalk-

or street; (2) failyge to obey a police order to move ot. “«

Deeming unconstitutional the latter provision because it .-

allows a person to stand on the sidewalk ‘‘only at'the whim

‘of any police officer’’ [td. at 90], this Court reversed the

. = ¢onviction on the ground that it might hafe been based on

the unconstitutional part of the ordinance (the trial, court

- haa reridered no opinion). a Py

However, while. ee the Birmingham ordi-

nance, the. Court observed that two’ years after Shuttle-

worth’s conviction, the: Alabama Supreme Court,_in an- ?

other case,-had construed the ordinance to read in the-

conjunctive so that failure to move on was not punishable _

unless the, accused was. ‘‘ ‘blocking free passage’ ? [id- at

91]. All members of this. Court—as expressed i inthe ma- - -

_ jority opinion and ,the three ‘concurring opinions—agreed

that the Birmingham ordinance, as thus construed by the

Alabama courts, was constitutional. As noted sl Mr. Jus: .

pee Forras in his SomearreRS ae er

“(Tf ‘Vane oore 4 selbaael basis’ for emis Shut-

tlesworth with violating the section as. 80 construed,

Py » fe. 8

pO RAS TOSI WME IY ns sit tii kidtaalladhiaial

y, sities 4

“ms 7

[Ls yes ;

he could be retried if Alabama should choose so vig-

-orously 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 privi-

lege to break or — the law”? [id. at 100):

~ Supporting the Feiner dgcision and. the Shuttlesworth

dictum is a, sound and moderate ‘‘accommodation of op-.

posing interests’* which supports as yell the determing-

tion of the New York courts herein. While the highly

valued First Amendment right of expression must never

be defeated, the time, place, ands manner of its exercise

are subject to. minimum regulation in the interests of de-

monstrable requirements of puplic safety and freedom of .

movement [Hague v. CIO, 307 U. S. 496 (1939) ; Schneider

v. State, 308-U. S. 147 (1939) ; Cantwell v. Conmecticut, 310

U. S. 296 (1940); Coarv. New Hampshire, 312 U. S. 569

(1941) ; Coz v. Louisiana, $79 U. S. 536 (1965) ]:. There

can be. no absolute dogma that ‘<people who want to

right to do so whenever and however and wherever they

- please’’»[Adwerley v. Florida, 385 U. S. 39; 48 (1966)]. .

Fire marshals, for instance, could certainly halt a-meeting

in premises unsafe for their use. Fréé exercise of the

right of speech yields to prevention of the collapse of the

- floor, — | Sas yt o.

a ;

.. So, too, assurance of the “safety and convenience’’ of

persons on the public ways has long been deemed a value

of sufficient importance to warrant regulation of public —

* Emerson, Toward a. Gouevel Theory of the First Amendment,

72 Yale Le Jour. 87, 947 (1963).

= -*

a ED nn

220

assemblies [Cox v. New: Hampshire, 312 U. S. 569, 574

(1941)]. Qrdinary commerce and the normal use of public

thoroughfares are the modest marks of a peacetime com- |

munity. Abrogation is not dictated. by the freedom of the

public to assemble. For assembly, regardless of how large,

need not interfere with the flow of commerce, unless its

organizers intend it to do so. Here, in Selecting Times

Square, a spot “wholly “unrelated .to the purpose of the

meeting, the sponsors must have chosen the place not for

its. suitability for assembly, but rather: because they could

reasonably expect to attract attention, perhaps draw a

growd, and, hépefully, create a newsworthy snarl. The

greater their success, the greater the -reasonably antici-

pated: interference with: the ‘commerce of Times Square. |

Such intentional obstruction is not a constitutionally

guarded privilege, subsumed by the protections of speech,

assembly, or even petition for redress of grievances.

ere is no conflict of values here. Unlike revolution,

bona fide oral expressions of political dissent can be easily

accommodated within a peaceful community.

Of course, not any or all ‘police regulation in the name

of traffic control justifies dispersal of a public assembly.

Minor inconveniences, obstruction of momentary \duration

—frustrations exPected and constantly encountered by the

modern. urban dweller under ordinary cireumstances—do

- not eall for police interference with the bothersome ac-

tivity. It is, rather, the substantial, the hazardous—the

‘thard core’? [Shuttlesworth v. Birmingham, supra at 99

~. (Brennan, J., concurring) ]—obstruction, afflicted on their

fellow citizen by demonstrators, that — the —_

ses & 0 disperse. : 3

23 -

The facts of the instant case evidence that degree of

interference with ‘‘safety and convenience’? [Coa v. New .

H ampshire, supra at 574] which justifies police action, At

New York’s central intersection at a busy time, petition-

ers’ assembly overflowed the sidewalks into the roadway,

causing oncoming automobiles to ‘‘veer sharply’’ (R. 12).

other vehicles, to demonstrators in the street and to other .

pedestrians tore into the street—is obvious. Nor was:

the inconvenience to pedestrians minor. In addition to

having to walk out in the roadway of a major thoraugh-

. fare, pedestrians’ access to a bus stop on the Square was

obstructed. Indeed, petitioners’ assembly here.was an en- i

actment of this Court’s illustration of street activity prop-

erly subject to dispersal by the government:

“Nor could | one, contrary to traffic regulations, insist

upon a street meeting in the middle of Times Square

at the rush hour as-a form of freedom: of speech, or

assembly. Governmental authorities have the duty

and responsibility to keep their streets open and avail-

able for movement’’ [Cow v. Lousstana, 379 U.S. vaste

554-5 (1965) J.

: . Us

The petitioners insist, however, that the police efforts

at dispersal were ‘‘pre-determined,’’ to effectuate a ban

on meetings of ‘‘political dissent’’ in the midtown area

and wholly unrelated to traffic considerations: (brief, pp.

5, 15)... Were these allegations borne out by the record,

a patently obnoxious case of arbitrary official restraint of

cherished rights would be presented. The record, however,

contradicts the assertion. Even the petitioners’ own wit-

ness quotes the police officer as announcing a non-discrimi-

natory ban on all meetings in the mid-town area, and sug- |

s .

———.,

eetihe the group move south of 40th Street or ane of

. 59th Street (R. 144, 200, cited by petitioners).

_ Moreover, the People’s testimony clearly catabliched

that far from ‘‘pre-determined,’”’ the police action was an

on the spot ‘‘estimate of a particular -local situation”’

[Feiner v. New York, supra at 321 (concurring opinion,

- Franxrurter, J.)], and that the resulting order to move |

on was dictated ‘exclusively by traffic and safety factors ~

(see R. 9, 77, 97, 110). Indeed, during the half-hour period

prior to the order to disperse, as numerous demonstrators

collected on and near the Square, unfolding placards and:

_ setting up effigies, several of the arresting officers stood . *

by, at no time stating to the group that demonstrations

were banned in that area (R. 4, 5, 30, 107).

Wholly distinguishable are the two recent cases upon

which petitioners primarily rely, Cox v. Louisiana, supra,

and.Edwards v. South Carolina, 372 U. S. 229 (1963). Those

cases, like the present one, concerned convictions of persons

engaged in a protest meeting under a statute punishing the

failure to obey police orders to move on. Similarity, how-

ever, enda-here. Each of those. convictions was reversed

because the ‘‘move on’’ statutes as construed by the South

Carolina and Louisiana courts were ‘‘so generalized” as

_views’’ [id. at 237; Cox v. Louisiana, supra at 551-2]. In

contrast, the high court of New York in Feiner firmly re-

_ jected tise of Section ivision 3 as a tool ‘‘to silence

unpopular opinions” (People v. Feiner, supra at 401].

Nor does the mised here contain any evidence that. the

"police orders were issued because the views of the demon- -

| _ strators were ‘‘opposed to the views - the majority of the

community’? [Edwards v. South Carolina, supra at 237]. —

Petitioners baldly assert that the record establishes that

the police orders were ‘‘motivated by hostility:to * * *

- [their] unpopular views’’ (brief, p. 15), but: they cite no

support i in the “record for this declaration, nor could they.

| Additionally, in Edwards, ‘this Court found ‘‘no ob-

struction of pedestrian or vehicular traffic’? within the area ,

in question [372 U. S. at pp. 231-2]. And, in Coz, this ,

Court observed that the demonstrators ‘‘did not obstruct

- the street”? [379 U. S. at p. 541].

Penal haem: Section 722 (2)

Further, even if this Court deems unlawful the police

_ orders to disperse in the instant ‘case, thus voiding the

_. eonvietion under. Subdivision 3, the subsequent acts com- ..

' mitted by-defendants in the course of their réfusal to move

on brings their sundial within the _ of Subdivision 2

of the statute.

That subdivision, as construed by the New York courts,

proscribes conduct causing ‘‘serious annoyance’’ to others

[People v. Carcel, 3 N.Y.2d 327, 331° (1957) ; see People 2

. Perry, 265 N.Y. 362 (1932); People v. Most, 171 N.Y. 423

(1902)]. In contrast to generalized breach of the peace

statutes like that of South Carolina condemned by this

Court in Edwards v. South Carolina, supra at 237, Subdivi-

sion? of Section 722, like Subdivision: 3, has been ‘Slimited _

to define and punish specific conduct lying wi the do-

main of state power” [Chaplinsky v. New Hampshire, 315

U. S. 568, 573 (1942)]. Illustrative of the narrow compass

of Subdivision 2 is the New York Court of Appeals reversal

of two leaflet distributors’ conviction under this provision

oo tl

- because the evidence showed ‘‘only * *.* that the defendants

were blocking the pedestrians’ right of way’’ [People/v.

Carcel, supra at 332].

In sharp contrast to that mild disturbance, the evidence

in the present case established that after the police had

several timesTrequested the demonstrators to move on, ,-

petitioners purposefully agitated the gathering in the

Square, into a disorderly mob. Understandably, defénd-

ants never—neither in the state courts nor in this ‘Court— -

challenged the People’s proof under Subdivision 2. Their

sole claim as to the application of this provision to their

acts after the police order to disperse is that due process

was violated because the complaint gave ‘‘no indication that

any of them was charged with any * * * ‘matters occurring

after the [police] order’’ other than ome ‘‘failure to move

on”’ (brief, p. 12).

However, the distinction petitioners‘ attempt to draw

between their failure to obey the police order and subse- «

quent acts is specious, for, as the opinion below in the Ap- :

pellate Term observed, the totality of petitioners’ conduct

‘after he order i is material and proper in showing the fail-

ure to obey it’? (R. 294). For example, after the order to

‘disperse, some petitioners sat down on the sidewalk and

seme lay down in the street. This conduct in itself was the

‘‘failure to obey the dispersal order’? which petitioners

concede is properly charged in the complaint. Petitioners’

attempt to separate the act of failure to move on rand these

disorderly acts ones sound reason.

Moreover, the language of the ‘complainant, as the Ap- -

pellate Term properly noted, fully embraces their behavior

after the order to disperse. The complaint states that: . --

enna eS meeese~e =

-. “The-defendants did unlawfully congregate and as-

semble at the above location [Duffy’Square] obstruct-

-, ing the area to the exclusion of those wishing to use

same, and did delay ‘vehicular traffic while carrying .

placards and using loud and boisterous language ; by

their.actions did cause a crowd to collect; when ordered

to move on the defendants did fail to do so, after being

informed that their actions were not lawful. 7 1)

Clearly, petitioners had fair notice that all of their “ob-

structions’’ and ‘‘boisterous”’ acts ‘at Duffy Square were

the subject of the complaint. Dispelling any question as —

- to the scope of the complaint is the heading, charging the

time in question as ‘‘4:25 p.m.’’ This was fully twenty.

minutes after the first police order to the crowd that they

disperse and nearly ten minutes after additional policemen

were summoned to the scene (R.°5, 90, 107, 112). Peti-

tioners’ eruption into riotous behavior, it will be recalled,

began when the additional police assistance arrived. Un-

questionably, then the complaint adequately notified peti- .

tioners that they were charged with the full extent of their

conduct on the day.in question.

' In sum, the police order to disband was ‘reasonable,

dictated by those demands of safety and proper use of pub-

lic streets which have long and wisely governed regulation

of the time; place and size of assemblies. Failure to obey

- the order is itself a punishable offense. In addition, where,

as here, the manner of disobedience creates an annoyance —

and further disorder, it is punishable as well under a sepa-

rate, clear, and express prohibiticn. Therefore, neither

the police order, nor the petitioners’ arrests and convictions |

for disobeying it, infringed upon the constitutionally gnar-

‘ee

28 .

anteed right to gather in-an appropriate place to express

political dissent and grievance. Neither the rights of speech

nor of free public passage need suffer by the warranted

police conclusion that Times Square i ig not a proper meeting

_ hall for a crowd of the size which congregated nee. on an

August Saturday afternoon. .

a Conclusion

The judgment below should be affirmed.

| Respectfully submitted, )

Frank S. Hogan

District Attorney

a New York County

.H. Rionarp UvinuEr :

Frevenjox P. Harerz |

Assistant» District Attorneys _

Of Counsel

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_ , Ce craps:

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