Petition — Wright v. Bailey

In The at

Supreme Court of the United States

October Term, 1976

No. 76- 76- 1 626

STEVEN WISE WRIGHT ano

CLARENCE EDWARD WRIGHT, JR..,

Petitioners,

V.

GEORGE BAILEY, SHerirr or

ALBEMARLE CouNTY, VIRGINIA,

AND

RAYMOND L. BELL,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SAMUEL W. TUCKER

Hitt, Tucker & MarsH

214 East Clay Street

P. O. Box 27363

Richmond, Virginia 23261

Attorney for Petitioners

ey ee ee a oe

Page

Opinions Below 1

Jurisdiction 2

I EE 2

Constitutional and Statutory Provisions Involved “ =

er GID ccccrssnccncsrcnsctecmneremenen a

ee . §

The Basis for Federal Jurisdiction in the Court of First Instance ... 7

Reasons for Granting the Writ ... . &

I. The Immediate Cause for the Petitioners’ Punishment, First

by the Officers and Then by the Court, Was a Failure to

Heed the Officer’s Command to be Quiet .. ou ©

Il. The Petitioners Did Not Violate Any Law ........................ 10

A. Disorderly Conduct ...................... sat . 10

B. Resisting Arrest il

C. Assault and Battery 12

III. The Courts Below Improperly Avoided the First Amend-

ment Question Which is Crucial to Petitioners’ Liberty ._.... 12

Conclusion = : - . 15

Appendix

TABLE OF CASES:

Banks v. Bradley, 192 Va. 598, 66 S.E.2d 526 (1951) 11, 12

Broaddus v. Standard Drug Co., 211 Va. 645, 179 S.E.2d 497

(1971) — 12

Collins v. City of Norfolk, 186 Va. 1, 41 S.E.2d 448 (1947) ...... il

Feiner v. New York, 340 U.S. 315 (1956) 9

Gooding v. Wilson, 405 U.S. 518 (1972) -...-.--.-.cccesecesseeeeseeesnenened 8, 9n

Hackney v. Commonwealth, 186 Va. 888, 45 S.E.2d 241 (1947) ... 11!

Mitchell v. Commonwealth, 140 Va. 572, 125 S.E. 311 (1924) .... 12

Muscoe v. Commonwealth, 86 Va. 443, 10 S.E. 534 (1890) ...11, 12

National Asso. for Advancement of Colored People v. Button, 371

U.S. 415 (1963) 15n

Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) ......10n, 15

Squire v. Pace, 380 F.Supp. 269 (W.D. Va. 1974), aff'd 516 F.2d

240 (4th Cir. 1975), cert. denied 423 U.S. 840 (1975) ............ 13

Wright v. Bailey, 544 F.2d 737 cccccccccccccsecsscoeecssseessesesssnseneesenernee 2

Wright v. Bailey, 381 F.Supp. 924 0.0 .-..cccccccccsccsssossssseessesseeeesseneetnnn 1

Terminiello v. Chicago, 337 U.S. 1 (1949) o.....ccc0cccccseeesveneseeoeonen 9

Thompson v. City of Louisville, 362 U.S. 199 (1960) ............ 8, 12, 14

United States v. Moore, 332 F.Supp. 919 (E.D. Va. 1971) ........... 12

CONSTITUTIONAL PROVISIONS:

Constitution of the United States:

I einstein .3, 9, 13, 15

CG 3,9

STATUTES:

Code of Virginia, 1950:

§ 18.1-253.2 . supeueumensnasenneenstennnaes secennatniansnenepeaneel 3, 11

§ 18.1-253.3 14

§ 18.1-310 .. uinensnedemeenenenes 4, 11

§ 19.2-308 _ See 5

28 U.S.C. 1254(1) .... 2

28 U.S.C. 2241 (c) (3)

In The

Supreme Court of the United States

October Term, 1976

No. 76-

STEVEN WISE WRIGHT ano

CLARENCE EDWARD WRIGHT, JR.,

Petitioners,

Vv.

GEORGE BAILEY, Suerirr or

ALBEMARLE CouNTY, VIRGINIA,

AND

RAYMOND L. BELL,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

Fourth Circuit entered in the above-entitled case on No-

vember 4, 1976.

The opinion of the United States District Court for the

Western District of Virginia, dismissing petitions for writs

of habeas corpus is reported, sub nom Wright v. Bailey,

381 F.Supp. 924, and is set out in the Appendix, pp. 9-12.

2

The opinion of the United States Court of Appeals for the

Fourth Circuit affirming the judgments of the district court

is reported, sub nom Wright v. Bailey, 544 F.2d 737, and is

set out in the Appendix, pp. 1-8.

The June 21, 1972 oral opinion of the Circuit Court of

the County of Albemarle, in the State of Virginia, denying

petitioners’ motions to dismiss warrants is unreported and

is set out in the Appendix, pp. 13-18. The order of the Su-

preme Court of Virginia denying a petition for a writ of

error to the Circuit Court’s June 22, 1972 orders of convic-

tion, is unreported and is set out in the Appendix, p. 19.

JURISDICTION

The judgment of the United States Court of Appeals for

the Fourth Circuit is dated and was entered on November 4,

1976. The order of that court denying rehearing is dated

December 22, 1976. By order of the Chief Justice of the

United States dated March 24, 1977 the time for filing a

petition for writ of certiorari was extended to and including

May 21, 1977. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1) Where there is no applicable statute purporting to

proscribe speech, can a conviction of disorderly conduct

survive the test of due process when the evidence shows

merely that, notwithstanding the twice repeated warning of

the Sheriff's deputy that petitioner would be arrested for

disorderly conduct if he would not “be quiet and let [the

officer] find out what was going on”, the petitioner again

interrupted and contradicted his opponent’s version of the

disturbance in which they had been involved?

2) Where, as in Virginia, the unlawfulness of the arrest

is a defense to a charge of resisting arrest, may the state

refuse to recognize such defense when interposed by a black

3

man whose arrest was for failing to heed the officer’s warn-

ing to be quiet and let the officer ascertain from a white

participant in their recent altercation what had transpired?

3) Where, as in Virginia, one may protect a close relative

from an unlawful assault, did the petitioner Clarence

Wright have a right, protected by the due process clause of

the fourteenth amendment, to repel with reasonable force

an officer’s striking his brother, the petitioner Steven Wright,

with a billy club for the mere use of words, civilly spoken,

when neither of the petitioners had made any show of force

or threat or employed any threatening gesture against the

officer or against any one else in the officer’s presence?

Congress shall make no law . . abridging the freedom

of speech . . . or the right of the people . . . to petition

the government for a redress of grievances;

eS Saas.

State shall . . . deprive any person of life, liberty

or property, without due process of law . . . .

This case also involves the following provisions of the

2

§ 18.1-253.2. Disorderly conduct in

places; power of counties, cities and

ordinances and resolutions.—If any

a riotous or disorderly manner in any street,

i]

fin

pe

|

It

1

ul

E

:

gE

ishment for a violation thereof as is provided by

a

of such

to the contrary notwithstanding. All fines imposed for

the violation of such ordinances or resolutions shall be

and the court also convicted him of resisting arrest in viola-

tion of Section 18.1-310 of the Code of Virginia and sen-

tenced him to jail for thirty days, the execution thereof

being suspended for a period of twelve months.

5

At the same time the court convicted the petitioner Clar-

ence Edward Wright, Jr., of assault and battery on a police

officer and of resisting arrest in violation of Section 18.1-310

of the Code of Virginia; and on each conviction the court

imposed a fine of $50 and costs and sentenced him to jail

for thirty days, the two sentences to run consecutively (Code

of Virginia, 1950, § 19.2-308).

The execution of these judgments was suspended and the

petitioners were enlarged on bail, with the respondent Ray-

mond L. Bell as surety, to allow a petition for writ of error

to be filed in the Supreme Court of Virginia. Such petition

was denied on February 2, 1973 and rehearing was denied

on March 8, 1973. This Court, on October 9, 1973, denied

a petition for a writ of certiorari to the affirmance of the

judgment of conviction.

Separate petitions for writ of habeas corpus, filed in the

United States District Court for the Western District of

Virginia on January 25, 1974, were dismissed by that court's

opinion and judgment of August 20, 1974. The United

States Court of Appeals for the Fourth Circuit affirmed the

judgment of the District Court on November 4, 1976 and

denied rehearing en banc by order of December 22, 1976.

STATEMENT OF FACTS

The incident that gave rise to the arrest and subsequent

convictions of the petitioners arose out of an altercation

(all of whom are white). (Tr. 42, 57-60). However, all

-

violence had ceased when members of the sheriff's depart-

ment of Albermarle County arrived on the scene and ob-

served a group of persons variously estimated as between

15 and 30 standing in front of the club (Tr. 2-3, 12).

One of the officers, Deputy Sheriff Guthrie, upon leaving

his car, recognized the manager of the club, Mr. Kessler,

and went over to him and asked him what had occurred.

As Kessler was attempting to give his side of the story,

Steven Wright interrupted, stating that that was not what

had happened (Tr. 3). Sheriff Guthrie testified that he

accompanied his remarks with arm-waving and that he

spoke loudly (Tr. 3-4).* The officer warned him that he

would be arrested for disorderly conduct “if he didn’t wait

just a moment, be quiet and let (the officer) find out what

was going on”. (Tr. 3,5).

Petitioner Steven Wright again interrupted and was

told him that he was under arrest for disorderly conduct

and caught him by the arm (Tr. 3-4) and started to the

car and Wright jerked free. As the officer tried to catch his

arm again, Wright jerked back (Tr. 5) and drew his

right arm back past the height of his shoulder, his palm

partially closed but not clinched into a fist (Tr. 13), all

in one motion (Tr. 8). The officer then struck him on the

side of his head with a “Boston” billyclub which was “a

little longer and a little larger than the normal type billie”.

(Tr. 5, 10). “About the next second” (Tr. 5), Clarence

Wright, Steven Wright’s brother, jumped on the officer’s

back (Tr. 6). Two other officers subdued Clarence Wright

and in the process one of them struck him on the back of

the head with a nightstick. (Tr. 18, 22).

* The officer also testified that had “cursed.” When he

was unable to remember the used, the court struck that testi-

mony and did not consider it in finding Steven Wright guilty (Tr. 7).

7

THE BASIS FOR FEDERAL JURISDICTION

IN THE COURT OF FIRST INSTANCE

The instant habeas corpus litigation was commenced by

the filing of two separate petitions for writ of habeas corpus.

Federal jurisdiction in the court of first instance was in-

voked under 28 U.S.C. 2241 (c) (3); the petitioners assert-

ing that they are in custody in violation of rights to free

speech guaranteed by the First and Fourteenth Amend-

ments to the Constitution of the United States and in viola-

tion of the petitioners’ right, secured by the Fourteenth

Amendment, not to be deprived of their liberty without due

process of law.

Remedies available in the courts of the state had been

exhausted. At the close of the state’s evidence in the June 22,

1972 criminal trial, counsel for petitioners moved to strike

the evidence and to dismiss the charges. It was contended

that the evidence failed to show any violation of the dis-

orderly conduct statute and that, moreover:

. . « [Jf the statute is so construed as to embrace

conduct that occurred prior to a physical touching be-

tween either of the officers and either of the defendants,

that then the statute would be violative of the First and

Fourteenth Amendments of the Constitution of the

United States. (Tr. 25).

In argument, it was pointed out that the only basis shown

for the initial arrest for disorderly conduct was speech that

was protected by the First Amendment. Therefore, if the

statute under which the disorderly conduct charge was

brought was construed to cover such speech, then the statute

would be void as being vague and overbroad, in violation of

the First and Fourteenth Amendments (Tr. 28-29). It was .

further pointed out that the language of the statute itself

was vague and therefore unconstitutional on its face, in vio-

lation of the Fourteenth Amendment (Tr. 28-29). In argu-

ment, counsel for petitioners cited decisions of this Court,

including, inter alia, Thompson v. City of Louisville, 362

U.S. 199 (1960), and Gooding v. Wilson, 405 U.S. 518

(1972). It was further argued that because the other charges

stemmed solely from the initial illegal arrest of petitioner

Steven Wright, they also were in violation of the Fourteenth

Amendment to the Constitution of the United States (Tr.

30). These arguments were rejected by the trial court (Tr.

34-39; A. pp. 14-18).

These same points were raised in the Assignments of

Error filed with the Notices of Appeal to the Supreme Court

of Virginia, and were briefed at length in the petition for

writ of error. In denying the petition, the Supreme Court

of Virginia stated:

the said circuit court (A. p. 19)

The same contentions were made in the petition for re-

hearing, and by its denial of the petition the Supreme Court

of Virginia necessarily again passed on and denied those

The Immediate Cause For The Petitioners’ Punishment, First By

The Officers And Then By The Court, Was A Failure To

Heed The Officer’s Command To Be Quiet.

The habeas petition filed by Clarence Edward Wright, Jr.,

alleges, as one of the violations of Federal Constitutional

Rights, that—

“The altercation, in which the petitioner sought to aid

his brother and for his participation in which he was

eaves’ end cunvisted, was only the means by which

sheriff's ty t to ish the petitioner's

and/or the hen hy SA yd of rights of

speech protected by he First and Fourteenth Amend-

ments and to prevent the further exercise of such

rights.”

A similar allegation is made in the habeas petition filed by

Steven Wise Wright. The alleged violation of federally pro-

tected liberty is made no less grievous by the selection of

the criminal offense for which Steven Wright was prose-

cuted.

Under any view of the evidence, two young men were

unlawfully battered by sheriff's deputies for one or both of

two reasons: (a) one or both of the two men spoke when a

deputy wanted them to be quiet and/or (b) the two young

men are black and their adversaries (the manager and

employees of the night club or restaurant and, in turn, the

sheriff's deputies) are white.

After the officers’ arrival and until Deputy Sheriff Guthrie

made physical contact with Steven Wright, no criminal law

had been violated ; although the officer had shown disregard

for the natural right to make spontaneous denial of accusa-

tions. The only justification suggested by the officer for

seizing Steven Wright’s arm is Wright's failure to be quiet

as the officer had commanded. There is no indication that

the failure to be quiet might have precipitated danger (c.f,

Terminiello v. Chicago, 337 U.S. 1 (1949), Feiner v. New

York, 340 U.S. 315 (1950) ), unless the law holds that dis-

pleasing a peace officer is dangerous and rightly so. And

there is nothing in the evidence that any thing spoken by

either of the instant petitioners was within the category of

“fighting” * words the use of which legislatures may make

* Gooding v. Wilson, 405 U.S. 518, 528 (1972).

10

criminal, notwithstanding the strictures of the First Amend-

ment.

For ‘his mere use of words, according to the officer’s testi-

mony, Steven Wright was rudely seized; and he “jerked

free”. When the officer attempted again to seize his arm,

Steven Wright pulled his arm away. Thereupon he was

struck on the side of his head with the Boston billie wielded

by Deputy Sheriff Guthrie. Steven Wright had committed

no crime; he had made no threat or show of force, not even

the symbolic threat of a clinched first. Even if he had given

cause to be arrested, there were three officers present, either

or all of whom could have effected the arrest without in-

flicting injury. Quite simply, Steven Wright was punished

on the spot for his failure to “be quiet” as the sheriff's

deputy had commanded.

Deputy Guthrie testified: “About the next second [after

Steven Wright was struck with the Boston billie], his brother

Clarence jumped me from behind” (Tr. 5). Immediately,

Deputy Sheriff Carter grabbed Clarence Wright from the

back, one hand on his shoulder and one in his hair, and was

“shrugged off” (Tr. 18); whereupon Deputy Sheriff Haw-

kins struck Clarence Wright on the back of his head with

an 18 inch night stick which broke from the force of the

blow (Tr. 23). Thus, both of the petitioners were punished

by the deputies for exercising rights which citizens have in

the Commonwealth of Virginia.

Il

THE PETITIONERS DID NOT VIOLATE ANY LAW

A. Disorderly Conduct

The disorderly conduct statute did not purport to forbid

speech. Unless the “moment to moment opinions of a police-

man on his beat” * are to be given legislative effect, the reach

* Shuttlesworth v. Birmingham, 382 U.S. 87, 90 (1965).

11

of the statute could not be extended by the officer’s warn-

ing that he would read into the statute a proscription of

speech which simply was not there. The officer’s warning to

Steven Wright was “that if he didn’t wait just a moment, be

quiet . . . I would arrest him for disorderly conduct”. The

officer’s testimony was that “he was loud, boisterous and

waving his arms * * * [and that there] was some stepping

forward and backward”’. Such testimony does not show that

the petitioner did behave “in a a riotous or disorderly man-

ner” (Code of Virginia § 18.1-253.2) or in a manner which

“tends to a breach of the peace” (Collins v. City of Norfolk,

186 Va. 1, 5, 41 S.E.2d 448 (1947) ) or in such a manner as

“to corrupt the public morals or to outrage the sense of

public decency” (Hackney v. Commonwealth, 186 Va. 888,

890, 45 S.E.2d 241 (1947)).

The trial court found that Steven Wright interfered with

the police investigation by interrupting the conversation be-

tween the deputy sheriff and the restaurant manager and

concluded that such conduct was disorderly (Tr. 34-35).

However, the legislature had indicated that interference with

a peace officer in the discharge of his duty would be criminal

if (and only if) such were done “by threats, or force” (Code

of Virginia, § 18.1-310, supra.).

B. Resisting Arrest

It is clearly the law of Virginia that an arrest without

lawful cause is but an unlawful assault which the citizen has

a right to resist with reasonable force. Muscoe v. Common-

wealth, 86 Va. 442, 10 S.E. 534 (1890) ; Banks v. Bradley,

192 Va. 598, 66 S.E.2d 526 (1951). More recently, the point

was Clearly illustrated, viz:

“If the officer [assi to the ‘shoplifting detail’} at-

tempted to arrest for failure to show his

identification, or because plaintiff and his

laughed at him, or because the officer that

C. Assault and Battery

It is equally clear, under the law of Virginia, that Clarence

Wright, Jr., had a lawful right to repel with reasonable

force the unlawful assault upon his brother Steven. Mitchell

v. Commonwealth, 140 Va. 572, 580-1, 125 S.E. 311 (1924),

United States v. Moore, 332 F.Supp. 919 (E.D. Va. 1971).

And it necessarily follows that he had a lawful right to resist

with reasonable force his alleged arrest for so doing. Muscoe

v. Commonwealth, supra, Banks v. Bradley, supra.

THE COURTS BELOW IMPROPERLY AVOIDED THE

FIRST AMENDMENT QUESTION WHICH IS

CRUCIAL TO PETITIONERS’ LIBERTY

Conceivably, the convictions for “resisting arrest” might

be struck down for the reason that there is no evidence that

either of the petitioners violated Section 18.1-310 of the

Code of Virginia by employing threats or force against the

officer who was effecting Ais arrest. In this connection,

Steven had merely “jerked free” his arm from the deputy’s

grasp and pulled back his arm to keep from being seized

again ; and then he was struck with the Boston billie. Clarence

had merely “shrugged” (his shoulders) when Deputy Carter

grabbed him from the back with one hand on his shoulder

and the other pulling his hair; and then Deputy Hawkins

hit Clarence on the back of the head with the night stick.

“[I}t is a violation of due process to convict and punish a

man without evidence of his guilt” (Thompson v. City of

Louisville, supra 362 U.S. at 206.

--- — —— =

Nevertheless, there would remain the conviction of Clar-

ence Edward Wright, Jr., for assault and battery on a police

officer [Depaty Sheriff Guthrie], unless Guthrie’s command

that Steven Wright “be quiet” and his attempt to enforce

that command by arrest and/or by violence were constitu-

tionally impermissible. If Steven Wright’s speech was within

the protection of the First Amendment, then Guthrie’s at-

tack was an unlawful assault upon Steven Wright which his

brother, the petitioner Clarence Edward Wright, Jr., had a

right to repel with reasonable force.

The District Court avoided the First Amendment question

by isolating the conviction of disorderly conduct (for which

no jail sentence was imposed) from the conviction of assault

and battery and the two convictions of resisting arrest; and

then the court considered the last three convictions as it

would have if the underlying events had occurred at some

time and place entirely different from the alleged disorderly

conduct.

The Court of Appeals avoided the question by turning to

the petitioners’ disadvantage the circumstance that over six

months after they filed their habeas corpus petitions, the

district court struck down the disorderly conduct statute for

facial unconstitutionality. Squire v. Pace, 380 F.Supp. 269

(W.D. Va. 1974), aff'd 516 F.2d 240 (4th Cir. 1975).

cert. denied 423 U.S. 840 (1975). The opinion of the Court

of Appeals in the instant case holds that “(t)he petitioners’

argument that Steven’s arrest was unlawful depends entirely

on the unconstitutionality of the Virginia disorderly conduct

statute”. Only in footnote 6 of the opinion does the Court of

Appeals take notice of the petitioner’s assertion that the

arrest of Steven Wright violated his First Amendment rights ;

and in that footnote the contention of the petitioners was

answered by a suggestion that a policeman on his beat has

the power to punish summarily for contempt as does a court

in session, viz:

The General Assembly of Virginia in 1970 had seen fit to

extend to local governing bodies and agencies a measure of

protection (which is inherent with courts and legislatures)

against the willful interruption of their deliberations. (Code

of Virginia § 18.1-253.3). Put nowhere outside of footnote 6

of the opinion below do we find authority for a police

officer’s commanding silence, absent “clear and present dan-

ger”. The conclusion of the Court of Appeals cannot be

squared with Thompson v. City of Louisville, supra, where

this Court said:

* Tr. 42; Petitions for Writ of Habeas Corvus,

of Facts.

|

“Instinct with its ever-present potential for arbitrarily

supporting First Amendment liberties, that kind of

law bears the hallmark of a police state.” Shuttlesworth

v. City of Birmingham, 382 U.S. 87, 91 (1965).

Absent clear and present danger, may the “breathing

space”,® which First Amendment freedoms need for their

survival, be curtailed to create justification of an arrest for

their exercise? If so, citizens should be informed that their

most precious liberty is illusory. If not, then policemen need

to know that the First Amendment is a limitation on their

powers, at least as much as it limits the power of legisla-

tures.

CONCLUSION

For the foregoing reasons, the petition for writ of cer-

tiorari should be granted and the decision of the court below

reversed.

Respectfully submitted,

Samue. W. TucKEeR

Hirt, Tucker & Marsu

214 East Clay Street

P. O. Box 27363

Richmond, Virginia 23261

Attorney for Petitioners

oe

US. 415, 434 ( °

APPENDIX

INDEX TO APPENDIX

Opinion of U. S. Court of Appeals

November 4 1976

Order of U. S. Court of Appeals

December 22, 1976

Opinion and Judgment of U. S. District Court

August 15, 1974

Oral Opinion of Circuit Court of the County of Albemarle

June 22, 1972

Order of the Supreme Court of Virginia

February 2, 1973

Denying Petition for Writ of Error

Rnited States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 74-2105

STEVEN WISE WRIGHT anp

CLARENCE EDWARD WRIGHT, JR.,

Appellants,

Vv.

GEORGE BAILEY ann RAYMOND L. BELL,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF VIRGINIA,

AT CHARLOTTESVILLE

TED DALTON, DISTRICT JUDGE

Argued: May 7, 1976. Decided: November 4, 1976.

Before Russext, Circuit Judge, and Fmxp, Senior Circuit

Judge, and Wwenes, Circuit Judge.

S. W. Tucker (Hill, Tucker & Marsh; Jack Greenberg,

Charles Stephen Ralson, on brief) for Appellants; Andrew

P. Miller, Attorney General of Virginia, and Gilbert W.

Haith, Assistant Attorney General, for Appellees.

RUSSELL, CIRCUIT JUDGE:

The petitioners Steven Wright and Clarence Wright, in

separate petitions, sought in the District Court habeas relief

in connection with their convictions in the Circuit Court

of Albemarle County, Virginia, as a result of a disturbance

A-2

or altercation at a night club in such County. Since the

offenses of which both petitioners were charged in the State

Court proceedings arose out of the same circumstances, the

two petitioners were tried together in the State Court and

their habeas petitions in the District Court were combined

for hearing. The District Court denied relief in both cases.

The petitioners have appealed. We affirm.

The petitioners who are brothers were at a night club. A

disturbance in which they were involved arose and the

manager of the night club called the police authorities.

When they arrived at the scene, the officers inquired of the

manager, who had made the complaint, the circumstances of

the complaint. According to the prosecution testimony, the

petitioner Steven Wright, shouting in a loud and boisterous

voice, kept interrupting the manager in his account of the

disturbance, belligerentiy contradicting the manager’s state-

ment and making it difficult, if not impossible, for the officer

to proceed with his investigation of the complaint of the

manager of the night club. The officer who was con-

ducting the investigation asked Steven to remain quiet until

alter he had gotten the manager’s statement. Steven seemed

to pay no heed to the request, though it ws repeated by

the officer. At this point, the officer told Steven he would

arrest him if he continued to interrupt his interrogation of

the manager. When Steven continued to interrupt and to

interfere with the examination, the officer arrested him for

disorderly conduct, took him by the arm and attemptéd to

lead him to the police car. At this point Steven “jerked

free” and drew back as if, according to the officer, to strike

the officer. When he did this, the officer struck him with his

billy, whereupon the petitioner Clarence Wright jumped

on the officer “from behind,” inflicting “a deep cut around

{his} neck.” Other officers pulled Clarence Wright off the

back of the investigating officer and arrested him for an

assault upon an officer. After a trial in the State Court,

ee

A-3

jury waived, the petitioner Steven Wright was found guilty

of disorderly conduct and unlawfully resisting arrest, and

the petitioner Clarence Wright was found guilty of assault

and battery on a police officer and of unlawfully resisting

arrest. On the charge of disorderly conduct the petitioner

was ordered to pay a fine of $50 and on the other charge,

was fined $50 and sentenced to 30 days’ confinement, sus-

pended and placed on probation for a year. The petitioner

Clarence Wright was sentenced for assault and battery on a

police officer to serve 30 days in jail and pay a fine of $50,

and for unlawfully resisting arrest he was sentenced to

serve 30 days in jail and a fine of $50. The petitioners ap-

plied for a writ of error to the State Supreme Court but

such application was denied as was their petition for writ

of certiorari to the Supreme Court of the United States.’

These habeas proceedings were then begun.

The District Court dismissed the claim of Steven Wright

which related to his conviction for disorderly conduct, re-

sulting in a fine, on the ground that the petitioner was not

“in custody” within the intendment of habeas jurisdiction,

since the sole punishment imposed for such conviction was

a fine with no provision for incarceration in event of non-

payment. Such ruling is amply supported by the authorities’

and we affirm. The Court, however, found that there was

habeas jurisdiction to review Steven Wright's conviction

of resisting arrest and Clarence Wright’s conviction of as-

sault and battery upon an officer and of resisting arrest. The

claim for relief in both cases turns on the petitioners’ con-

tention that Steven’s arrest was unlawful. If it were un-

* 414 US. 828 (1973).

* Edmunds v. on Bae Chang (9th Cir. 1975) 509 F.2d 39, 40-1,

cert. denied US. United States Ex Rel. Dessus v.

Commonwealth of Pa. (3d Cir. 1971) 452 F.2d 557, ae Helene We

vy. Keith (5th Cir. 1970) 434 F.2d 623, 624; Fur

wd. 1975) 395 F. 1356, 1358-63; Pueschel v. Lobe (DiC. Coan.

4

1 983 F. Supp. 3 "579-80.

A4

lawful, the petitioners reason, Steven Wright had a right

forcibly to resist arrest and, when the arresting officer

sought to arrest forcibly Steven, his brother Clarence had a

right to go to his assistance. It follows that, unless it is

established that Steven’s arrest when made was unlawful,

the claim for relief by both petitioners must fail.

The petitioners’ argument that Steven’s arrest was un-

lawful depends entirely on the unconstitutionality of the

Virginia disorderly conduct statute. It is conceded, though,

that such statute had not been heid unconstitutional prior

to Steven’s arrest. It was more than two years later that in

a proceeding in the District Court, affirmed almost a year

later by this Court, that the statute was found constitu-

tionally defective.’ So far as the arresting officer knew at

the time—or for that matter, the petitioners themselves

knew—the statute was valid and was not under constitu-

tional attack. An arrest is not unlawful within the common

law right to resist,‘ if the arrest is authorized by statute or

by legal process facially good, even though the statute may

later be declared unconstitutional, or the legal process found

defective. United States v. Beyer (2nd Cir. 1970) 426 F. 2d

773, 774; State v. Briggs (Mo. 1968) 435 S. W. 2d 361,

364-5; Canney v. State of Florida (Fla. Ct. App. 1974) 298

So. 2d 495, 496, cert. denied 310 So. 2d 743, cert. denied

* The decision in Squire v. Pace (W.D.Va. 1974) 380 F. 269,

aff'd. 516 F. 2d 240, cert. denied 423 U.S. 840 (1975), ems ended

ee ed

A-5

423 U. S. 892 (1975); Note, Defiance of Unlawful Au-

thority, 83 Harv. L. Rev. 626, 636; cf., also, United States

v. Ferrone, supra, 438 F. 2d at 390; Commonwealth v.

Supertzi (Pa. 1975) 340 A. 2d 574, 575; State v. Wright

(1968) 1 N. C. App. 479, 162 S. E. 2d 56, 62.° This exception

to the common law rule was stated in the Note in 83 Harv.

L. Rev. at 636 thus:

“# * * The only major restrictions on this common law

right, {to resist an unlawful arrest] beyond those al-

ready applied to the analogous right of self-defense,

were holdings that arrests were valid—and resistance

to them therefore unlawful—if authorized either by a

law later declared unconstitutional or by an arrest war-

rant found sufficient on its face > oe >

although suffering from some latent defect.” (Empha-

sis added )

The reasoning on which this exception rests is that the

validity of the arrest depends on the law as it exists at the

time of the arrest and not as it may later be declared. This

was the rationale of the decision in United States v. Beyer,

supra, where the Court said:

“Appellant argues that three Supreme Court de-

on its face.’ (Ex Parte United States, 287 U. S. 241,

249, 53 S. Ct. 129, 77 L. Ed. 283 (1932) when issued

***” (Italics added)

Somewhat similar reasoning was expressed in Canney v.

State of Florida, supra:

“Irrespective of the constitutionality of the city ordi-

nances which appellant now collaterally attacks, the

of the arrest *** must stand or fall upon the

was noted in Franklin v. United States (1903 218

US. 161, 171, but the did “not find it necessary to it.

A-6

facts and circumstances then existing.” (Court's em-

hasis)*

Perhaps the most complete explication of the exception

appears in State v. Briggs, supra, at 364-5:

“* * * Tt also contends that even if the ordinance is un-

constitutional, the defendant had no right to resist ar-

rest * * *. We are of the opinion that this third con-

tention of the State must be sustained and hence

need not consider the constitutionality of the ordinance.

our

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it was not the right of an individual to resist arrest on

the basis of a contention that the law he allegedly was

violating was unconstitutional or invalid for some other

under a government of law. To permit persons to resist

arrest and attack an officer and then be excused if they

successfully question the constitutionality or validity of a

statute or ordinance would lead to chaos and would be

intolerable. This being true, when one resists arrest, as

here, and strikes and wounds the officer, he is subject to

imi ion for violation of the statute which

ibits such attack on an officer engaged in the per-

of the duties of his office. This is true even if

the ordinance is determined subsequently to be uncon-

stitutional.”

Since it was not until long after Steven’s arrest that the

statute under which he was arrested was found unconstitu-

’ This reasoning echo of Judge Learned Hand’

observation, as _ L @e 1958 Proceedings, Gast tae

Institute, at p. 254

but on the contrary, a blow for attempted anarchy.”

A-9

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 74-2105

STEVEN WISE WRIGHT, et al.,

Appellants,

vs.

GEORGE BAILEY, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA.

Filed December 22, 1976

Upon consideration of the petition for rehearing and of

the petition for rehearing en banc ;

Now, therefore, with the concurrence and approval of the

other members of the panel and in the absence of a request

for a poll of the entire court, as provided by Appellate Rule

35(b),

It is ADJUDGED and ORDERED that the petition for

rehearing is denied.

Donald Russell

United States Circuit Judge

A-10

IN THE UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF VIRGINIA

DIVISION

August 15, 1974

Civil Action Number 74-C-2-C

STEVEN WISE WRIGHT,

Petitioner,

vs.

GEORGE BAILEY ann RAYMOND L. BELL,

Respondents,

Civil Action Number 74-C-3-C

CLARENCE EDWARD WRIGHT, JR.,

Petitioner,

vs.

GEORGE BAILEY ann RAYMOND L. BELL,

Respondents.

OPINION AND JUDGMENT

Petitioner Steven Wright was convicted i i

the Circui

Court of the County of Albemarle, Virginia, of disorderly

Wright, was contemporaneously convicted of assault and

battery and resisting arrest. Herein, they petition this court

A-11

statute (§ 18.1-253.2) is facially invalid and was uncon-

stitutionally applied to him in violation of the First aud

Fourteenth Amendments; 2) the evidence was insufficient

to sustain a conviction for disorderly conduct; 3) the con-

viction for disorderly conduct violates the due process clause

of the Fourteenth Amendment because there was no evi-

dence to support petitioner's guilt; and 4) the altercation

which resulted in petitioner’s arrest and conviction for re-

sisting arrest was the means by which petitioner was denied

rights of speech protected by the First and Fourteenth

Amendments.

The court does not reach the merics of petitioner's first

three contentions because of a jurisdiction obstacle which

prevents consideration. This court's habeas corpus jurisdic-

tion is limited to consideration of applications for writs of

habeas corpus filed “in behalf of person{s] in custody pur-

suant to the judgment of a state court .. .” 28 U.S.C.

§ 2254(a) (emphasis supplied). Petitioner was ordered to

pay a fine of $50 and costs and, therefore, was not “in cus-

tody” pursuant to the conviction for disorderly conduct.

Consequently, the court does not have the statutory au-

thority to rule on his contentions.’

Pursuant to his conviction for resisting arrest, Steven

months, and therefore is “in custody” within the meaning

* Were the court to reach the merits of ; contentions, it

would adhere to the recently enunciated by Chief

Turk, and declare 's conduct statute in-

valid. Squire v. Pace, No. 74-27 (WD. a., Aug. 9, 1974).

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duct was not protected speech or symbolic speech and con-

sequently the arrests did not violate his constitutional rights.

Nor does the court find any merit in his contentions that his

convictions must be invalidated because they derive from

F.Supp. 607 (S.D. N.Y. 1970).

For the aforementioned reasons, these petitions are hereby

ordered dismissed.

The clerk is directed to send a certified copy of this

record.

ENTER: TED DALTON

United States District Judge

August 15, 1974

A-14

VIRGINIA:

IN THE CIRCUIT COURT OF

THE COUNTY OF ALBEMARLE

June 22, 1972

Appeal from County Court

#2419, #2414

COMMONWEALTH OF VIRGINIA

vs.

STEPHEN WISE WRIGHT.

Defendant,

AND

Appeal from County Court

#2417, #2415

COMMONWEALTH OF VIRGINIA

vs.

CLARENCE EDWARD WRIGHT, jR.,

Defendant.

A-15

OPINION OF CIRCUIT COURT OF THE

COUNTY OF ALBEMARLE

Court: Now I'm referring to case number 2419 which

is the charge of disorderly conduct against Stephen Wise

Wright. Now in response to the motion to strike, the court

does take into account the information that was contained

in the case Mr. Tucker has cited. The Court is familiar

with the Georgia case as far as cursing and abusing, words

calculated to provoke the breach of the peace. But as you

will recall in this case, there was no charge that this man

cursed anyone which constituted the disorderly conduct or

that he used insulting words. His conduct was such in a

public place in which there were 30 or more people appar-

ently milling around outside according to the testimony of

the officers when they arrived in three separate police cars.

Then the Chief Investigating Officer at that time was

and that of at least one other officer was that Stephen

Wright when he was asked not to interfere did in fact step

back the first time and—efter being asked by the officer.

He interrupted the second time by—not only by his loud

voice but the gestures and position in which he placed him-

self the second and third times. Now I don’t find that his

conduct consisted of—his disorderly conduct was based on

cursing because the officer said—he said in effect that he

cursed but that evidence is not substantially before the

court in the language that would constitute cursing. The

conduct that is before the court is what he actually did by

the loudness of his voice and the manner in which he placed

himself as far as the relative position of the officer and the

owner or the person who apparently was in charge of the

establishment and who had made a complaint to the officer.

At least when the officer arrived he went to the man that

he, himself, knew to be connected with the operation of the

establishment which is a public dance hall or public place

A-16

of recreation and amusement. Finding himself in that posi-

tion it seems to me that the conduct that the defendant

Stephen Wise Wright engaged in was disorderly. The

motion to strike the evidence on that charge is overruled.

Likewise the charge against Stephen Wise Wright which

is resisting arrest in violation of Section 18.1-310 of the

Code seems to have been made out. It leaves the officer in

a position where he’s either got to assert his

physically or use the power of arrest. Now I realize from

what Mr. Tucker says that a man does not commit a crime

by words, by mere words alone, they must be coupled with

something else. When an officer is investigating a disturb-

ance at a public place and then reacts to this situation the

way he did, it seems to me that he was reasonable in under-

taking to place Mr. Wright under arrest rather than knock-

ing him aside because the alternative would be to have his

investigation interferred with. I don’t know exactly where

that would lead officers in positions of investigating a dis-

turbance at a public piace, if he had to put up with this.

You're getting awfully close to self-help when you deny any

officer the opportunity to arrest on the combination of con-

duct and words which under other circumstances would be

less threatening to public order. Therefore the motion as to

Stephen Wise Wright on the resisting arrest is overruled.

Mr. Tucker if you want to do—review all of these, you

may make your exceptions at the conclusion of all these, if

you'd like to. Now on the case of Clarence Edward Wright,

I don’t find the evidence that would justify finding Clarence

Edward Wright guilty of disorderly conduct at the time

his brother, Stephen Wise Wright, was arrested. If his con-

duct was disorderly it would be merged in the offense of

committing assault and battery on a police officer. To that

extent the evidence seems to be insufficient to maintain the

charge against Clarence Edward Wright Jr., as to the

charge of disorderly conduct in a public place which is

A-17

warrant—or case number 2416. The motion is sustained as

to that charge against Clarence Edward Wright Jr. Now

I don’t think there can be any argument over the fact that

Clarence Edward Wright Jr. jumped on Officer Guthrie

from behind, and he was pulled off by another officer and

subdued by force and I recognize of course that he may not

have been fully aware at that particular moment that he

himself was being placed under arrest. But, even so, he

was fully aware that he was assaulting a police officer in

uniform and the indications are that these other officers

were standing by. On that basis that—the fact that he may

have been slow to realize that he, himself, was under arrest

would seem to be no excuse and the motion to strike as to

the two cases 2417 and 2445, that is resisting arrest 2445,

and committing an assault on an officer with his hands

and fist 2417, both motions are overruled. Now Mr. Tucker

I assume you wish to note exceptions—and objections to

all those...

Tucker: I am not sure that such is necessary right now

under the statute but I do note exceptions to the rulings

insofar as the court has denied the motion to strike and

would like to make clear another ground—I think it has

been argued but I want to—and that is if the disorderly

conduct statute is construed to embrace the conduct as has

been shown here in the evidence, then purely the disorderly

conduct statute is too vague to withstand the requirements

of specificity of the due process called for in the 14th

Amendment of the Constitution of the United States. A

statute is required to be drawn so that a person can know

from the statute what is proscribed and I submit that the

statute here, Section 18.1-253.2 has nothing in it that puts a

person on notice that his protestation or even what’s been

described as stepping forward and stepping back is a viola-

tion of law. I think the statute does not give warning that

this kind of conduct is prohibited so I just submit that as an

A-18

additional due process ground in addition to the 1st Amend-

ment position which we previously argued.

Court: Yes sir, I understand that—noted that in your

argument before, the statute must be specific in what it

undertakes to regulate. Mr. Tucker I suppose we are all

limited in our ability to draw statutes which would have

clear meaning to everyone. It seems to be an increasingly

difficult art these days. On the other hand if we followed

this argument to the extent that you have proposed, it

leaves a police officer in a position where he has got to try

a case before he decides to arrest . . .

Tucker: Isn’t that a matter sir for the legislature to cor-

rect and not the courts?

Court: I don’t think the legislature can go but so far in

the use of language which in the past has had a clear mean-

ing but in view of decisions which have gradually narrowed

and confined in the application of certain words, we’ve even

gotten to the point now where nobody knows what a curse

word is anymore according to the Supreme Court. Now if

you take that to the logical conclusion the court would say

when using four letter words which are now the art in the

theater and certain entertainment circles, wouldn’t justify

making arrests so the outraged person is left to his own

protection and if he chooses to push the teeth of the other

person who is using the words down his throat, that’s his

only recourse and this leaves the whole thing to be decided

at almost the self help level which the police officer is de-

signed to protect the public from having to result to. In

other words if the police officer had no grounds for doing

what he did, Mr. Kessler, the owner of the establishment

would be left to his own devices. What you're saying in

effect is that the officer shouldn’t have arrested anybody—

he should have gone on and left the place in an uproar. We

can’t hold the officers to a standard which actually goes to

the point of defining words past the point of being under-

A-19

standable to the general public and the word “disorderly”

in my opinion carries enough of the common usage and

knowledge with it that an officer has got to act on some basis

on his own descretion. If you say that this man had no right

to place the defendant under arrest, therefore the defendant

having not been arrested, was not resisting arrest doesn’t

leave any meaning in the law at all. If the Supreme Court

wants to indicate that and put the General Assembly back

to redefining what public disorder is, resisting arrest and

everything else combined, I suppose they will just have

to do it. I don’t think we can abandon that at this stage

of the trial court but I realize that there have been inroads

made on it. The motions are denied on the grounds indi-

cated and an officer seems to me, whether his conviction

would have stood up or not, does not appear that he acted

outside any unlawful means himself in making this arrest

and the defendants in undertaking to resist him, far ex-

ceeded what their conduct should have been as far as what

was disclosed by the evidence the Commonwealth has

presented.

A-20

ORDER OF THE SUPREME COURT OF VIRGINIA

DATED FEBRUARY 2, 1973,

DENYING PETITION FOR WRIT OF ERROR

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the

2nd day of February, 1973.

The petition of Clarence Edward Wright, Jr., and Steven

Wise Wright for writs of error and supersedeas to judg-

ments rendered by the Circuit Court of Albemarle County

on the 22nd day of June, 1972, in prosecutions by the Com-

monwealth against the said petitioners (Indictment Nos.

2414, 2416, 2417, and 2419), having been maturely con-

sidered and transcripts of the records of the judgments

aforesaid seen and inspected, the court being of opinion

that there is no reversible error in the judgments com-

plained of, doth reject said petition and refuse said writ

of error and supersedeas in each of these cases, the effect

of which is to affirm the judgments of the said circut court.

A Copy,

Teste:

Howard G. Turner, Clerk