Petition — Temporale v. Connecticut

FILED Jf

APR 4 1978 f

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a Supreme Court, U. &~ \e

IN THE | MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 77- 14] 6

PASQUALE TEMPORALE, Petitioner,

vs.

STATE OF CONNECTICUT, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF CONNECTICUT

JOHN R. WILLIAMS

265 Church Street

New Haven, Connecticut 06510

Telephone: 203-562-9931

COUNSEL FOR PETITIONER

March 24, 1978

i

TABLE OF CONTENTS

Page

Opinion Below....ccsccccccccsceccescccees 1

JUTISGIctiOn..ccccccccccccsccscsccccccccecs 3

Questions Presented..... cee rsecccccceces 4

Constitutional and Statutory

Provisions Involved.....sseeseeeecevees 5

Statement of the Case......eeesseeeccvees 7

Reasons for Granting Writ......... TTT T ° 10

The Connecticut Breach Of Peace

Statute Is Unconstitutionally

Vague And Overbroad.....seeeeeseees 10

Petitioner's Breach Of Peace

Conviction For Saying To A Police

Detective In A Public Place "No

Fucking Narks Are Coming In Here"

Violated Petitioner's Rights Under

The First and Fourteenth Amendments

To The United States Constitution... 13

ok cence 6 oe beh nebewes bbs 6bbbee 17

Index of Ds 6 + nh eébbceees 6eeeeseneds 18

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

PASQUALE TEMPORALE, Petitioner,

vs.

STATE OF CONNECTICUT, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CONNECTICUT

The petitioner Pasquale Temporale respectfully

prays that a writ of certiorari issue to review

the judgment of the Supreme Court of the State of

Connecticut in this case.

OPINION BELOW

On March 7, 1978, the Supreme Court of

Connecticut denied Pasquale Temporale's petition

2

JURISDICTION

for certification for appeal from the Appellate

Session of the Connecticut Superior Court. This The judgment of the Supreme Court of

ruling is reported at 174 Conn. 802, 39 Conn. L. Connecticut was reached on March 7, 1978 and

announced on March 21, 1978.

&

The jurisdiction of this Court is invoked

J. No. 38 (March 21, 1978), p. 20 (App. p. 1).

The ruling of the Appellate Session of the

Connecticut Superior Court, affirming Petitioner's under 28 U.S.C. §1257(3).

conviction, was announced January 6, 1978, and has

not yet been reported. (App. p. 2)

QUESTIONS PRESENTED

1. Whether the Connecticut breach of peace

statute, Conn. Gen. Stat. §53a-181, is unconsti-

tutionally vague and overbroad.

2. Whether Petitioner's breach of peace

conviction for saying to a police detective in a

public place "no fucking narks are coming in here"

violated Petitioner's rights under the First and

Fourteenth Amendments to the United States

Constitution.

5

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution, Amendment I:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; of the right of the

people peaceably to assemble, and to petition the

Government for a redress of grievances.

United States Constitution, Amendment XIV,

Section 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

6

Connecticut General Statutes, Section 53a-181:

A person is guilty of breach of the peace

when, with intent to cause inconvenience, annoy-

ance or alarm, or recklessly creating a risk

thereof, he: (1) Engages in fighting or in vio-

Jent, tumultous or threatening behavior in a

public place; or (2) assaults or strikes another;

or (3) threatens to commit any crime against

another person or his property; or (4) publicly

exhibits, distributes, posts up or advertises any

offensive, indecent or abusive matter concerning

any person; or (5) in a public place, uses abu-

sive or obscene language or makes an obscene

gesture; or (6) creates a public, hazardous or

physically offensive condition by any act which

he is not licensed or privileged to do.

7

STATEMENT OF THE CASE

Following a jury trial in the Gumestion:

Court of Common Pleas for the Fourth Geographical

Area at Waterbury, the Petitioner was convicted of

interference with a police officer (C.G.S. §53a-

167a) and breach of peace (C.G.S.$§53a-181). In

a decision announced January 6, 1978, the Appellate

Session of the Superior Court reversed the inter-

ference conviction but affirmed the conviction of

breach of peace in the face of First and Fourteenth

Amendment challenges.

So far as the breach of peace conviction is

concerned, the Appellate Session found that the

jury-could have found from the evidence presented

that on February 21, 1976, at about 8:30 p.m, a

rock concert was in progress at the Palace

Theater, located on East Main Street, Waterbury,

Connecticut. This theater was owned by the Peti-

tioner's father, who was on vacation in Florida

and had placed the defendant in charge of ticket

sales in his absence. The rock concert was sold

8

out and the theater accommodated approximately

3,000 persons. There were several hundred persons

milling around in the lobby when two plainclothed

Waterbury detectives entered the lobby of the

theater. One of the detectives, Robert Little,

had been contacted by an officer on duty inside

the theater and this officer gave the detective a

bag of suspected marijuana. Little and his fellow

detective were on duty outside the theater while

six to eight uniformed officers were on duty in-

side the theater upon order of the pelses’ cuper-

intendent. Upon receipt of the suspected mari-

juana, both detectives decided to enter the

theater to investigate. They approached the

Petitioner, identified themselves as police

officers, showed their badges and informed him

that they were there on official business. The

defendant responded, "no fucking narcs are coming

in this place." (Opinion, pp. 1-2) This view of

the evidence accords with that of the trial court,

which in denying the Petitioner's motion to set

9

aside the verdict ruled that the breach of peace

conviction was based upon "the evidence of lan-

guage addressed to Detective Little that 'no ----

narks are coming in here’...." (Record, p. 22)

Petitioner was convicted of violating the

entire breach of peace statute. The Information

did not limit the charge to any particular portion

of the statute, and the court instructed the jury

under the entire statute.

10

REASONS FOR GRANTING WRIT

Be The Connecticut Breach Of Peace Statute Is

Unconstitutionally Vague And Overbroad.

In its memorandum of decision on appeal from

the trial court, the court below acknowledged that

"penal statutes must be sufficiently certain so as

clearly to define the conduct to which its prohi-

bitions are addressed," and noted further that

vagueness and overbreadth are two distinct claims.

The state court erred, however, in finding the

Connecticut breach of peace statute to be neither

vague nor overbroad.

It is impossible to save from unconstitu-

tional vagueness such language in 53a-181 as

“tumultuous or threatening behavior," "offensive,

indecent or abusive matter, abusive or obscene

language," “obscene gesture," and "public, hazard-

ous or physically offensive condition.... E.g-,

Lewis v. City of New Orleans, 415 U.S. 130 (1974);

Gooding v. Wilson, 405 U.S. 518 (1972); Wright v.

ares

ll

Georgia, 373 U.S. 284 (1963); Walker v, Dillard,

523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906

(1975); Wiegand v. Seaver, 504 F.2d 303 (5th Cir.

1974), cert. denied, 421 U.S. 924 (1975);

Carmichael v. Allen, 267 F.Supp. 985 (D.Ga. 1967);

International Society for Krishna Consciousness,

Inc. v. Rochford, 425 F.Supp. 734 (N.D.I11. 1977);

Fuller v. Scott, 328 F.Supp. 842 (M.D.N.C. 1971);

Phillips v. Borough of Folcroft, 305 F.Supp. 766

(E.D.Pa. 1969); Spears v. State, 337 So.2d 977

(Fla. 1976); Conchito v. City of Tulsa, 521 P.2d

1384 (Okla.Crim.App. 1974); State v. Berker, 328

A.2d 729 (R.I. 1974).

The Connecticut court held the breach of

peace statute distinguishable from those struck

down in the cases noted above, and many others,

because of its preliminary clause reading: "with

intent to cause inconvenience, annoyance or alarn,

or recklessly creating a risk thereof." Initially,

one is constrained to note the unconstitutional

vagueness of this clause itself. It is manifestly

12

impossible for any citizen of reasonable intelli-

gence to know what the legislature meant by

"inconvenience, annoyance or alarm". Moreover,

several courts in other states have held that such

language does not save an unconstitutionally vague

penal statute. E.g., Marks v. City of Anchorage,

500 P.2d 644 (Alaska 1972); People v. Hayden, 548

P.2d 1278 (Colo. 1976); Bolles v. People, 541 P.2d

80 (Colo. 1975); Commonwealth v. Howell, 18 Cr.L.

2563 (Pa.Com.Pl. 1976); State v. Bradshaw, 541

P.2d 800 (Utah 1975).

Moreover, other than noting the existence of

the constitutional principle, the Connecticut

court did not address the Petitioner's contention

that the breach of peace statute is unconstitu-

tionally overbroad. Indeed, the very language in

the statute which the Appellate Session thought

saved it from unconstitutional vagueness is so

overbroad as to infringe protected First Amendment

freedoms: it is precisely the sort of speech in-

tended "to cause inconvenience, annoyance or

13

alarm" which our constitutional system has the

greatest stake in protecting. As this Court said

in Terminiello v. Chicago, 337 U.S. 1 (1949), "a

function of free speech under our system of

government is to invite dispute....Speech is often

provocative and challenging....That is why freedom

of speech, though not absolute,...is nevertheless

protected against censorship or punishment, unless

shown likely to produce a clear and present danger

of a serious substantive evil that rises far above

public inconvenience, annoyance, or unrest." Id.

at 4.

2. Petitioner's Breach of Peace Conviction For

Saying To A Police Detective In a Public

Place "No Fucking Narks Are Coming In Here"

Violated Petitioner's Rights Under the First

And Fourteenth Amendments To The United

States Constitution.

The best demonstration that the Connecticut

breach of peace statute is unconstitutionally

overbroad is that both the trial judge and the

14

State appellate court were able to find that it

outlawed the conduct of which the Petitioner was

convicted -- loudly saying to a police officer in

a crowded place that "no fucking narks are coming

in here."

Many cases have held that conduct far more

outrageous or provocative than that involved here,

under conditions at least as incendiary, is pro-

tected by the First Amendment. Thus, in Lewis v.

City of New Orleans, supra, the defendant had been

convicted for "yelling and screaming" at a police

officer on a public street a stream of abuse which

included the language, “you god dam m.f. police."

The defendant in Gooding v. Wilson, supra, had

said the following things, among others, to police

officers: "White ‘son of a bitch, I'll kill you."

"You son of a bitch, I'll choke you to death."

"You son of a bitch, if you ever put your hands

on me again, I'll cut you all to pieces."

In Commonwealth v. A. Juvenile, 334 N.E.2d

617 (Mass. 1975), the defendant for a period of

15

forty minutes yelled at a saleswoman in a crowded

downtown department store such phrases as "f-----

a-----"" and "f----- pig" and accompanied the words

by the gesture of giving the woman the finger.

In Hess v. Indiana, 414 U.S. 105 (1973), this

court held it a violation of the First Amendment

to convict the defendant of disorderly conduct for

saying in a loud voice in a crowded public place:

"We'll take the fucking street later."

In Brandenburg v. Ohio, 395 U.S. 444 (1969),

this court reversed on First Amendment grounds the

conviction of a man for making at a large rally

where some people were carrying firearms remarks

such as: "Bury the niggers,” "the niggers should

be returned to Africa," and "send the Jews back to

Israel."" See Watts v. United States, 394 U.S. 705

(1969) ("If they ever make me carry a rifle the

first man I want to get in my sights is L.B.J.")

In Stewart v. United States, 428 F.Supp. 321

(D.D.C. 1976) (Gesell, J.), Mr. Stewart had been

arrested on a charge of disorderly conduct for

16

shouting at a police officer on a crowded street:

“Lock me up, mother fucker, lock me up you jive-

ass cop." The court held that not only was

Stewart's conduct protected by the First Amend-

ment, but that the arresting officer had violated

Stewart's First Amendment rights by arresting him

for such action and it awarded Stewart one thou-

sand dollars in compensatory damages under the

Federal Tort Claims Act for false arrest. See

Malone v. Fields, 335 So.2d 538 (La. 1976).

In our system, undifferentiated fear or

apprehension of disturbance is not enough

to overcome the right to freedom of

expression. Any departure from absolute

regimentation may cause trouble. Any

variation from the majority's opinion may

inspire fear....But our constitution says

we must take this risk...; and our history

says that it is this sort of hazardous

freedom -- this kind of openness -- that

is the basis of our national strength

and of the independence and vigor of

Americans who grow up and live in this

relatively permissive, often disputatious

society.

Tinker v. Des Moines Community School

District, 393 U.S. 503 (1969).

CONCLUSION

17

For these reasons, a writ of certiorari

should issue in this case.

ban,

"i

<a

March 24, 1978

Respectfully submitted: —_

a ). <7 7

> wi,

JOHN R. WILLIAMS

265 Church Street

New Haven, Connecticut 06510

Telephone: 203-562-9931

Counsel for Petitioner

18

INDEX OF CITATIONS

Bolles v. People

541 P.2d 80 (Colo. 1975) .w.cceeeeeeese 12

Brandenburg v. Ohio

395 U.S. 444 (1969) eee evererev eee eee eeee 15

Carmichael v. Allen

267 F.Supp. 985 (D.Ga. 1967) ........ 11

Commonwealth v. A Juvenile

334 N.E.2d 617 (Mass. 1975) eeeeeeeee 14-15

Commonwealth v. Howell

18 Cr.L. 2563 (Pa.Com.Pl. 1976) ..... 12

Conchito v. City of Tulsa

521 P.2d 1384 (Okla.Crim.App. 1974) . 11

Fuller v. Scott

328 F.Supp. 842 (M.D.N.C. 1971) ..... 1l

Gooding v. Wilson

465 U.B. SB COTA) .cccccccdsccecesn ae

Hess v. Indiana

434 U.S. 366 GOP scccéeessenuue 15

International Society for Krishna

Consciousness, Inc. v. Rochford

425 F.Supp. 734 (N.D.I11. 1977) ..... 1l

Lewis v. City of New Orleans

415 U.S. 130 (1974) ccccccccccccsecsese 10, 14

Malone v. Fields

335 So.2d 538 (La. 1976) eeeeeeeneeeee 16

19

Marks v. City of Anchorage

500 P.2d 644 (Alaska 1972) .....ee05-

People v. Hayden

548 P.2d 1278 (Colo. 1976) e*eeereeeeee

Phillips v. Borough of Folcroft

305 F.Supp. 766 (E.D.Pa. 1969) ......

Spears v. State

337 So.2d 977 (Fla. 1976) .....eeeees

State v. Barker

De eae PE Gets BOTS) coccccoceces

State v. Bradshaw

541 P.2d 800 (Utah 1975) .....seeeees

State v. Temporale

174 Conn. 802 (1978) *eeeoeeeeeneeeeeeee

Stewart v. United States

1l

1l

11

12

428 F.Supp. 321 (D.D.C. 1976) ....... 15-16

Terminiello v. Chicago

337 U.S. 1 (1949) eeeereereeeeeeeeeeeee

Tinker v. Des Moines Community School

District, 393 U.S. 503 (1969) .......

Walker v. Dillard

523 F.2d 3 (4th Cir.), cert.

denied, 423 U.S. 906 (1975) ......4..

_ Watts v. United States

394 U.S. 705 (1969) eeeeeeeer ee eee eeee

Wiegand v. Seaver

504 F.2d 303 (5th Cir. 1974), cert.

denied, 421 U.S. 924 (1975) .......6.

13

16

1l

15

1l

20

Wright v. Georgia

373 U.S. 284 (1963) ereererereereeeeee 10-11