Motion to Dismiss or Affirm — Callender v. New York

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Text

: APR 6 1967

—

_ Supreme Court of he United SI

Gcteher Ferm, 1966

No.1 LO. 3 |

. ©” HERBERT CALLENDER, — ¥

aaa * _ Defendant-A ppellant,

gaimst

THE PEOPLE ‘OF THE STATE OF NEW YORK, .

. ' Appellee.

MOTION TO DISMISS OR AFFIRM |

L«

Frank 8. Hocan

( District Attorney

¥ New York County

v Attorney for. Appellee.

—< 155 Leonard Street -

New York, New York 10013

H. Ridwarp Uviize

Freperi0x P. Harerz

_, Assistant District Attorneys

Of Counsel .

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TABLE OF CONTENTS:

PAGE

. Tae Sraruts InNvo.vep ....... CR Saat PT EET VE A RIT RR TIONS: Fs at oe

Tue EvIveEnce. ...... be a ee ee

The People’s Case......... cil souecsnnnebaawon See eae et -

The Defense ................ aiid’ Res An Shain §

ARGUMENT

No Substantial Federal Questions Are Presented ..... 6

RES EE IRS NS ETE MRNA ke AI mo a 1i

TABLE OF AUTHORITIES

Cases: ot

_ Chaplinsky v. New Hampshire, 315 U. 8. 568 (1942) .. 7

‘Cox v. Louisiana, 379 U. S. 536 (1965) ooo... 7, 9, 10, 11

‘Cox v. New Hampshire, 312 U.S. 569 (1940) ......... 9

Edwards v. South Carolina, 373 U.S. 229 (1968) ore 7

. Feiner v. New York, 340 U. 8. 318 (1951) ........ sccsssrss8y 9, 10

Giboney v. Empire Storage and Ice Co., 336 U. S. 490 - |

TE as ed ES ORR 10

Martin v. Struthers, 319 U. S. 141 RID icchaviscinipsenteetice 9

. People v. Careel, 3 N. Y. 20 827 (1957) ..cccccscsssesoe 7

People v. Feiner, 300 N. Y. 391 (1950) «00.00.00. 8:

People v.: Galpern, 259-N. Y. 279 (1982) ............. a ee

Reople v. Most, 171 N. Y. 423 (1902) 00.0... oe

People v. Nixon, 248 N. Y. 182 (1928) .......0..ccccceeee .

“se * oe PAGE

People v. Penn et al:, 48 Mise. 2d 634°(Appellate Term,

First Department, 1964), aff'd 16 N. Y. 2d 581

(1965), cert. denied, 383 U. S. 969 (1966) .............. 8,10

People v. Perry, 265 N. Y. 362 (1932) ........ “Rh amen 7

People v. Stover, 12 N. Y. 2d 462 (1963) .....0.0.0000.... _ 9

Poulos v. New Hampshire, 345 U. S. 397 (1953) ............ 9

Schneider v. State, 308 U. S. 147 (1989) o.....0.0..c0000. 10

Shuttlesworth v. Birmingham, 382 U. S. 87 (1965) ...... 8

_ Stromberg v. California, 283 U. S. 259 (1931) .............. 9

Turner et al. v. New York (No. 399, to be argued on

April 12, 1967) ........... SE Ai ETT) PAL ee - 10

Other Authorities:

Constitution of the United States |

ee I avi discscosinvberiziasesisvcssmnnenssas Siceieeea 8, 9, 10

New York Penal Law

Section 722, Subdivisions 1,2 ea A: 2, 7,10

Supreme Court of the United States

October Term, 1966

Herbert CALLENDER,

Defendant-A ppellant,

. against

Tue Prope oF THE State or New York,

Appellee.

MOTION TO DISMISS OR AFFIRM —

Pursuant to Rule 16 of the Rules of the Supreme Court

of the United States, appellee respectfully moves to dis-

miss the appeal in the. above-entitled case on the ground

that it does not present a substantial federal — or

to affirm. | |

The Statute Involved

The relevant portions of Sections 133 of the Penal Law

provide:

‘Disorderly Conduct.

**Any person who with intent to provoke a breach

of the =m or whereby a breach of the peace may

be occasioned, commits any of the following acts shall

be deemed to have comimitted the offense of disorderly

* conduct:

‘1. Uses offensive, disorderly, dutates, abu-

sive or insulting language, conduct or behavior;

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

interfere with, obstruct, or be offensive to others;

‘$3. Congregates with others on a public street and

_. Yefuses to move on when ordered by the police ;’’

THE EVIDENCE

The People’s Case

_ Sergeant Dennis Burke testified that on July 15, 1961,

he was on duty. at a police gate in a corridor of City Hall

leading to the Mayor’s Office (45).* The corridor, from

its beginning point to the gate, was eight feet wide and

twelve feet long; the gate itself was three feet wide (5,

13). Beyond the gate were, in addition to the Mayor’s ~ |

Office, the offices of the hiceutive Secretary to the Mayor,

the Legal Assistant to the Mayor, the Secretary of the

Deputy Mayor, the Deputy Mayor, several other assist-

ants, and the clerical staff (5). Aside from officials, mes-

senvers and clerical help who were permitted to ‘‘come

right through’’ the gate, the: standard police practice was —

fe .

to admit only persons who had an appointment with some-

one inside (16). | ,

At about 10:50 that morning, the defendant, accom-

panied by several other. persons, approached Sergegnt

* References, unless otherwise indicated, are to the typewritten

minutes of trial. -

Aeyene re SE

- Burke at the gate (6-7). Defendant stated that he had

come to make a citizen’s arrest of the Mayor and that he .

wanted Sergeant Burke to assist him (7). The sergeant

informed defendant that he would not assist him because

he had been advised by the Corporation Counsel and the

Legal Bureau of the Police Department that such arrest

would be illegal (7). At this point there were about thirty

‘persons in the corridor, standing ‘‘four or five across and

about six deep,’’ and entry through the gate was possible

only by ‘‘pushing people aside’”’ (10, 16). Tke crowd in-

cluded persons who were waiting to-see the Mayor in éon-

nection with his scheduled ‘‘ announcement concerning a

gift to Mt. Morris Park,’’ and some newsmen and camera-

men (8, 13). After Burke’s refusal of assistance, defend-.-

ant asked him for his identification. The officer showed

his badge to defendant and then requested him to leave,

telling him ‘‘thatshe was causing a crowd to collect and

interfering with the normal business of City Hall by pre-

venting normal exits through the gate’’ (7-8, 10).

Ignoring Burke’s request, defendant began speaking to

newsmen, and then approached another officer, Lieutenant

Delehanty, requesting his assistance in arresting the

Mayor (10). Observing that the crowd had grown larger,

_ Burke approached defendant and agaih told him to leave

because ‘‘He obstructed the entrance to the hall and inter- «°

fered with the Mayor’s business’’ (11). Defendant replied:

that ‘‘he would remain there until he would make the

arrest of the Mayor’’ (11). Burke informed Callender

that if he refused to move on, he would be arrested (11).

Defendant again refused to move ‘and was then placed

under arrest (11). ;

Lieutenant John W. Delehanty testified that at about

10:50 a.m. on the morning in question, the defendant and

two others arrived at City Hall and approached: the gate

leading to the Mayor’s Office (18-19). In the eight by

‘twelve foot corridor leading to the gate was a small crowd

waiting to be escorted through the gate ‘‘for the Mayor’s

scheduled calendar of a gift for Mr: Rogers from Mt.

Morris Park’’ (sic) (20). In a waiting room inside the.

gate was another group waiting to attend the Mayor’s

scheduled signing of a minimum wage law (20, 23). The

Mayor’ s schedule that morning also included the signing

of some > other local laws (20). |

Precee o Sergeant Burke at the police desk behind

the gate, the defendant stated that he wanted to make a

citizen’s. arrest of the Mayor and wished Burke to assist —

him (19). Refusing to assist, Burke told ‘defendant that

according to the opinion of the Corporation Counsel, such

arrest would be illegal (19). Defendant repeated his re-

quest and Burke again refused (19). Turning. then to :

Lieutenant Delehanty, defendant twice made the same re-

quest and Delehanty twice gave the same answer as Burke

had given (19). At this.time a crowd of about forty or

fifty persons had collected in the corridor; there was no

access to the gate because ‘‘It was impossible to get

through the crowd that was.gathered around’’ (21, 24).

Sergeant Burke then ‘‘asked Mr. Callender to leave * * *

because he was causing a:crowd to collect and interfering

‘ with the normal business of City Hall’’ (19). Defendant

refused whereupon Lieutenant Delehanty reiterated the

request (19). When defendant again refused, Burke placed

him under arrest (19-20).

RO AD ALE EP POLL ILL ILI LEILA LLL LAIN IE

—

The Defense a ~

—

Herbert Callender, the defendant, previously intend

of unlawful intrusion, testified that he was a field secre-

tary “for the Congress of Racial Equality (25, 36). At:

‘about 10 a.m. on the day in question, together with two

other CORE workers, he arrived at City Hall and ap- »

proached a gate leading to the Mayor’s Office (26, 30).

Standing directly in front of the gate, Callender meauaren :

to Sergeant Burke that he had come:

‘*to effect. a citizen’s arrest of Mayor Wagner, charg-

- ing him with misappropriation of: public funds, that

the funds were being used for public protection sup-

plying ‘contractors. and discriminated against Negroes

and Puerto Ricans, that to focus this law, this is one

of the means “that we wanted to» bring before the

court” (26-7).

In the corridor leading to the gate were many people, in-

cluding ‘‘a number of pressmen’’ (30). Callender had

previously issued a press release announcing his intended

arrest ‘of the Mayor at City Hall (30).

Restying to defendant, Burke Suittnasl to assist be-

cause he had been advised that such an arrest would be

illegal (27). Defendant moved to the side of the gate and.

continued his conversation with Burke (27). As they

_ spoke, newsmen thrust a radio microphone between them

(27). Unsuccessful with Sergeant Burke, defendant then

walked over to Lieutenant Delehanty and reiterated his

request (28). Delehanty also refused to assist (28). A

' few minutes later, as defendant stood ‘‘up against the

s 7 P ‘ praeg FS ee ON NE OR ORR ATONE

wall,’’ Burke ‘approached him and. asked whether he was

going to leave (28). Defendant explained to Burke:

‘‘T am not here to engage myself in any civil disobe-

dience * *** but I am here to make a citizen's arrest

‘and I believe that is my right, and that I was willing

‘to wait until that arrest could be effected when some

police officer could assist me with it. I was willing

to try to find at least one’’ (38).

phaanbibel that he would be arrested if he did not ani

defendant again requested Burke to assist him whereupon

. the officer placed him under arrest (28).

| ARGUMENT

No Substantial Federal Questions Are Presented.

On a. busy morning at City Hall, defendant, flanked —

“by two‘confederates and followed by numerous reporters

and television cameramen, walked tothe police gate in

the narrow corridor leading ‘to the Mayor’s Office and an-

nounced to the-officers there. that he wanted their assist-

ance in making a citizen’s arrest of the Mayor. Declin-

ing to assist, the officers explained that. they had been

advised by the Corporation Counsel that such arrest would: |

_be unlawful, Defendant, however, continued to request

pi thei? assistance. Finally, the officers informed defendant

‘‘that he was causing a crowd to collect and interfering

| with the normal business of City Hall by preventing nor-

_ mal [access ] through the gate,’’.and they requested him

to move on (8). The small, eight by twelve foot corridor

leading to the gate, previously uncrowded, had, upon de-

fendant’s arrival, suddenly become jammed by a crowd of

over thirty persons, standing ‘‘four or five across”’ (16),

and ‘‘[i]t was impossible to get through the.crowd”’ (21)

without ‘‘pushing people aside’’ (10).

Brazenly ignoring the police requests, defendant turned

to a group of reporters and began speaking to them. The

officers, knowing that the Mayor had a busy schedule that

morning again requested that defendant leave. Persist-

ing there, defendant replied that ‘‘he would remain * * *

until he would make the arrest of the Mayor’’ (11). At

this time defendant was placed under arrest.

Unquestionably, defendant’s acts, causing total obstruc-

tion of a public entrance to a vital wing of City Hall, con-

stituted disorderly conduct under New York Penal Law

Section 722, Subdivision 2. That provision, as. construed

by the New York Courts, proscribes conduct causing ‘‘seri-

- ous annoyance’’ to others [People v. Carcel, 3 N. Y. 2d

327, 331 (1957) ; see People v. Perry, 265 N. Y. 362 (1932) ;

People. v. Most, 171 N. Y. 423 (1902)]. In contrast to

the ‘‘generalized’’ breach of the peace statutes condemned ~

by this Court in Edwards v..South Carolina, 372 U. 8. 229, -

237 (1963) and Coa v. Louisiana, 379 U. S. 536 (1965) [cited

by appellant, brief, pp. 10, 12], Subdivision 2, as con-

strued, has been ‘‘limited to define and punish specific

conduct lying within the domain of State power”? [Chap-.

linsky v. New Hampshire, 315 U. 8. 568, 573 (1942)]. Illus-

trating the narrow compass of Subdivision 2 is the New

York Court of Appeals’ reversal of two leaflet distributors’ ;

conviction under this provision because the evidence

showed ‘‘only * * * that the defendants were blocking the

pedestrian’s right of sc, dil [People v. Carcel, supra, at ~

wat : oe |

ae. ews See OT EN Saeew ne

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* ‘Additionally, the evidencé amply supports defendant’s

convistion under Subdivision ‘3. of the statute. As con-

# strued by the New York Courts, this law punishes only

‘the refusal to. ‘obey a ‘resonable’ order. [People v: Galpern,

3 259 N. Y. 279 (1932) ; People v. Niwon, 248 N. Y. 182 (1928) ;

.- see People v. Penn, et al., 48 Mise. 2d 634 (Appellate Term,

) First Dept. 1964); aff’d 16 N.Y. ad 581 (1965), cert. dented

383 U. S. 969 (1966).] The criteria. of reasonableness ‘are

the necessities of the situation. ‘Thus, i in People v. Feiner,

300 N. Y. 391 (1950), the New’ York Court of Appeals, —

deeming: lawful a police order to move on, relied upon evi-

| dence that defendant attracted a erowdwhich. ‘filled the -

_ sidewalk and’ spilled ‘out into the adjacent thoroughfare, ob-

* structing oF impeding both pedettzian and vehicular traf-

fie’? [id at 400). ry

\ .

In Feinet v. New York: 1340 U.S. 1. B15 (1951), this Court. .

‘upheld the constitutionality: of Subdivision 3. And, re-

cently, in Shuttlesworth v. Birmingham, 382 U.. S. 87° (1965),.

; this Court, in dicta, deemed constitutional a Birmingham

és ordinance which; as “construed by Alabama. ‘courts, pun-

_ ished failure to obey a police order’ to move on based on

S the accused’s ‘sblocking free passage’’ Ltd. at 91}.

. ‘Sebking ta justify his’ piviatiins conduct, ‘defendant

* contends that. his attempt to-arrest: the Mayor was a form

* of : expressing, ‘a political cause—the Mayor’s . alleged

_gontracts ° with unions practicing racial discrimination—

and, therefore, was protected ‘by the First Amendment..

It is true that certain fornss of nonverbal expression have

_ been accorded First Amendment prjeotion, such as — :

. .

arte. ES MENT NER, RN PPE NL NIA PLIERS FMT OE IN LP ETRY AIG MTT f

~ = dete pier» masse aa. Sg ,y t

trolling, marching, and picketing’’ [Cox v. Louisiana, 379 fe

B. S. 536, 555 (1965)], exhibition of a flag [Stromberg v. -

California, 283 U. S. 259 (1931)], and | ‘even hanging a

clothesline filled with: dirty clothes on a front lawn [Peo-

ple v. Stover, 12 N. Y. 2d 462 (1963) ]. However, the conduct

here—an attempted physical seizure of another person—

is so obviously beyond the pale of the most far reaching

constitutional embrace of nonverbal expression that it

. merits no protection. Presumably, by defendant’ ‘Ss reason-

ing, a physical attack on the Mayor intended as a petition

for the redress of grievante would fall within the ambit

of the First Amendment. Detendant’s argument wholly

distorts the nature of the right bestowed in the First

Amendment.

Moreover, defendant’s’ argument incorrectly assumes

that the act in question here is his attempt to arrest the

Mayor. Examination of the record, however, clearly re-

veals that the thrust’ of the case against defendant was

_ his continued, disruptive presence in City Hall after his

‘ attempt to arrest the Mayor had failed by virtue of the

police officer’s adamant refusals to ‘assist him in effecting

a citizen’s arrest.

. Even assuming, however; that ‘defendant’s conduct was

a form of First Amendment activity, its restriction was

proper. This Court has consistently held that communica-

tion of ideas i in public places is subject to reasonable regu-

Jation [Cox v. Louisiana, 379 U. S. 550 (1965); Poulos v?

‘ New Hampshire, 345 U. S. 397 (1953) ; Feiner v. New York,

340 U. S. 315 (1951); Martin v. Struthers, 319 U. S. 141

(1943); Cox v. New Hampshire, 312 U. S. 569 (1940);

SN DES TR NT Ee weg ewan ier PRONE pa SLA EY RES BODE ERR Pr PRE ITE IDE ONC ag

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‘Schneider v: State, 308.U. 8: 147 (1939)].. And, it is

equally clear that where communication is by conduct, the

First and Fourteenth Amendments do not ‘‘afford the

same kind of freedom * * * as these amendments afford to

_ those who communicate ideas by pure speech’”’ [Coz v.

Louisiana, supra, at 555; Giboney v. Empke Storage.and

Ice Co., 336 U. S. 490 (1949)]. In the instant case, the. dis-

ruption caused by defendant’s First Amendment activity

unquestionably rendered the ‘application of Section 722 a

reasonable regulation [Feiner v. New York, 340 U. S. 315

(1951)]; particularly since the First Amendment activity,

if indeed it was that, was in the lesser protected form of

conduct, not ‘‘pure speech’’ [Cox v.. Louisiang, supra. at

555; see People-v. Penn et al., 16 N.Y. 2d 581 (1965), cert.

den. 383 U. S. 969 (1966) }.

Furthermore, any substantiality to the issue of the |

application of Section 722, Subdivisions 2 and 3 to defend-

ant’s alleged First Amendment activity is diminished by |. .

virtue of this Court’s recent grant of certiorari in Turner

et al. v. New York (No. 399, to be argued on April 12, 1967).

The claims made by the instant defendant are virtually

‘identical to those raised by petitioners in Turner. —

Misguided is defendant’s reliance on Cox v. Louisiana,

supra. There, reversing convictions under a Lowisiana

-. breach of the peace similar to Section 722, this Court held

allowed ‘‘persons to be punished merely for peacefully ex-

pressing unpopular views’’ [id. at 551]., In contrast, the

statute here was directed not at defendant’s expression of

‘unpopular views, but at his obstructive behavior and fail-

ure to obey reasonable police commands. Indeed, as noted

ie.

TP, IMI REE AIT I TERR RM Firs,

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above, the ¢ Cox opinion cogently reaffirmed the validity of

reasonable-State regulation of disruptive First Amendment

‘activity such as defendant’s in the present case.

“The rights of free speech and assembly, : while fun-

damental in our democratic society, still do not mean

that everyone with opinions or beliefs to express may:

address. a group at any public place and at any time.

The constitutional -guarantee of ‘liberty implies the

existence of an organized society maintaining public

. order, without which liberty itself would be lost in the

excesses of anarchy * * * A group of demonstrators

could not insist upon the right to cordon off a street

or entrance to a public or private building * * *”’

[id. at 554]. )

Conclusion

We respectfully submit, therefore, that the appeal

should be dismissed because no substantial federal

question has been presented; in the alternative, the

judgment below should: be summarily affirmed as

eminently sound and fully consistent with pertinent |

constitutional principles.

‘ <

Respectfully submitted,

Frank S. Hocan

District Attorney

New York County

H. Ricwarp UviLLEr ete

Freperick P. Harerz a. >

Assistant District Attorneys

Of Counsel

_ April, 1967

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