Shuttlesworth v Birmingham AL Brief for Petitioner

    In THE

dmirt of llnltzb §>tat£5
October T erm, 1965

No. 5

F eed L. Shtjttlesworth,

Petitioner,
—V.—

City of B irmingham.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE 

STATE OF ALABAMA

BRIEF FOR PETITIONER

J ack Greenberg 
James M. Nabrit, III 
Norman C. A maker 

10 Columbus Circle 
New York, Newr York 10019

P eter A. Hall 
Orzbll B illingsley, Jr.

1630 Fourth Avenue North 
Birmingham, Alabama

A nthony Gr. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Petitioner



I N D E X

Opinions Below .........................................   1

Jurisdiction .......................................................................... 2

Constitutional and Statutory Provisions Involved .....  2

Questions Presented .......................................................... 3

Statement of the Case .........    4

Summary of Argument ........................... ...........................  12

A egument :

I. Since the Verdict Against Petitioner Was 
General, His Conviction Must Be Reversed 
if Any of the Charges Is Constitutionally 
Invalid ................................................................ 13

II. On Its Face, and as Applied to Petitioner’s 
Conduct, Section 1142’s Proscription of 
Standing or Loitering on a Sidewalk After 
a Police Order to Move on Is Vague and 
Overbroad in Violation of the First and 
Fourteenth Amendments ..............................  14

A. The ordinance as written is vague and
overbroad .......        14

B. The construction of §1142 by the Alabama
courts has not cured its objectionable 
vagueness and overbreadth....................... 20

PAGE



11

III. On Its Face, and as Applied to Petitioner’s 
Conduct, Section 1142’s Proscription of 
Standing, Loitering or Walking on a Side­
walk so as to Obstruct Free Passage Thereon 
Is Vague and Overbroad in Violation of the

PAGE

First and Fourteenth Amendments ...............  29

IV. Petitioner’s Conviction for Violation of
§1231 Is Supported by No Evidence ............. 29

Conclusion ...................................................................... . 31

Table of Cases

Anderson v. Albany, 321 F. 2d 649 (5th Cir. 1963) ...... . 16
Aptheker v. Secretary of State, 378 U. S. 500 (1964) .... 24

Baggett v. Bullitt, 377 U. S. 360 (1964) .......................  17
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) .... 17
Barr v. City of Columbia, 378 II. S. 146 (1964) ....... 15,30
Benson v. City of Norfolk, 163 Va. 1037, 177 S. E. 222

(1934) .............................. ............. .................................. 26
Bouie v. City of Columbia, 378 U. S. 347 (1964) ........ . 23

Cantwell v. Connecticut, 310 U. S. 296 (1940) ...........  15
Carlson v. California, 310 U. S. 106 (1940) .......... .....18,25
City of Akron v. Effland, 112 Ohio App. 15, 174 N. E.

2d 285 (1960) .............................................. ...................  26
City of Chariton v. Fitzsimmons, 87 Iowa 226, 54 N. W.

146 (1893) ....... ......... ............................................... ......  27
City of Portland v. Goodwin, 187 Ore. 409, 210 P. 2d

577 (1949) ....... ......... ........................................................  26
City of St. Louis v. Gloner, 210 Mo. 502, 109 S. W. 30 

(1908) 26



City of Tacoma v. Roe, 190 Wash. 444, 68 P. 2d 1028
(1937) ................................. .................... -........................  27

Commonwealth v. Carpenter, 325 Mass. 519, 91 N. E.
2d 666 (1950) ....... ...... .................. ................................. 18

Commonwealth v. Challis, 8 Pa. Super. 130 (1898) .......  27
Cox v. Louisiana, 379 TJ. S. 536 (1965) ........... 15,16,18,28
Cramp v. Board of Public Instruction, 368 U. S. 278 

(1961) ......... ............... ............. ........................................  17

Dombrowski v. Pfister, 380 TJ. S. 479 (1965) ............... 17, 24
Dominguez v. City and County of Denver, 147 Colo.

233, 363 P. 2d 661 (1961) ........... ........... ..... .................  26
Douglas v. Alabama, 380 TJ. S. 415 ........... .......................  11

Edwards v. South Carolina, 372 U. S. 229 (1963) .......  15
Ex parte Bodkin, 86 Cal. App. 2d 208, 194 P. 2d 588

(1948) ..... ..... ................ ............ ........ ................. ......... . 27
Ex parte Mittelstaedt, 164 Tex. Grim. 115, 297 S. W.

2d 153 (1957) .................. .... .........................................  26

Fields v. Fairfield, 375 TJ. S. 248 (1963) ....................... 30
Fields v. South Carolina, 375 TJ. S. 44 (1963) ...............  25

Garner v. Louisiana, 368 U. S. 157 (1961) ................... 16

Hague v. C. I. O., 307 TJ. S. 496 (1939) .....      15
Harris v. District of Columbia, 132 A. 2d 152 (M. C. A.

D. C. 1957), rev’d on other grounds, 251 F. 2d 913
(D. C. Cir. 1958) ______________ _________________ __  26

Harris v. District of Columbia, 192 A. 2d 814 (C. A.
D. C. 1963) ........... ................ .......... ............................... 26

Headley v. Selkowitz, 171 So. 2d 368 (Fla. 1965) .......  26
Henry v. City of Rock Hill, 376 U. S. 776 (1964) ...........  25
Henry v. Mississippi, 379 U. S. 443 (1965) ____  11

Ill

PAGE



PAGE

In re Bell, 19 Cal. 2d 488, 122 P. 2d 22 (1942) ...............
In re Cregler, 56 Cal. 2d 308, 363 P. 2d 305, 14 Cal.

Rptr. 289 (1961) ..................... ....... .................................
In re Hnddleson, 229 A. C. A. No. 3, 721, 40 Cal. Rptr. 

581 (1964) ..... ....................................................................

Kunz v. New York, 340 U. S. 290 (1951) .......................15,

Largent v. Texas, 318 U. S. 418 (1943) ...........................
Lovell v. Griffin, 303 U. S. 444 (1938) ...........................15,

Marsh v. Alabama, 326 U. S. 501 (1946) .................. .
Middlebrooks v. City of Birmingham, ——• Ala. App.

------ , 170 So. 2d 424 (1964), cert, denied, 170 So. 2d
424 (Ala. 1964) ___ ___ __________________ ___ 21,26,

N.A.A.C.P. v. Button, 371 U. S. 415 (1963) ...............16,
Niemotko v. Maryland, 340 U. S. 268 (1951) .... .......... 15,

People v. Bell, 306 N. Y. 110, 115 N. E. 2d 821 (1953) .. 
People v. Diaz, 4 N. Y. 2d 469,151 N. E. 2d 871 (1958) .. 
People v. Galpern, 259 N. Y. 279, 181 N. E. 572 (1932)

20, 21,
People v. Johnson, 6 N. Y. 2d 549, 161 N. E. 2d 9

(1959) ...............................................................................
People v. Merolla, 9 N. Y. 2d 62, 172 N. E. 2d 541

(1961) ................ ........................... ...................................
Phifer v. City of Birmingham, 42 Ala. App. 282, 160 

So. 2d 898 (1963), cert, denied, 160 So. 2d 902 (Ala.
1964) ................................................................7,11,20,22,

Phillips v. Municipal Court, 24 Cal. App. 2d 453, 75 
P. 2d 548 (1938) ..............................................................

25

26

27

25

15
23

15

27

29
25

26
26

25

26

27

30

26



V

Pinkerton v. Verberg, 78 Midi. 573, 44 N. W. 579 
(1889) ............................... ...............................................  29

Saia v. New York, 334 U. S. 558 (1948)  .................... 15
Schneider v. State, 308 U. S. 147 (1939) ...................... 15
Shelton v. City of Birmingham, 42 Ala. App. 371, 165

So. 2d 912 (1964) ............. ............. ....... ......... ..... 20,21,22
Shnttlesworth v. City of Birmingham, 42 Ala. App.

296, 161 So. 2d 796 (1964), cert, denied, 161 So.
2d 799 ................ ............ ...... ..... ....... .......... ................ 20, 22

Smith v. California, 361 U. S. 147 (1959) ........... ........ . 17
Smith v. City of Birmingham, 42 Ala. App. 467, 168

So. 2d 35 (1964) ....... ............... ......................................  21
Soles v. City of Vidalia, 92 Ga. App. 839, 90 -S. E. 2d

249 (1955) .... .................. ........ ..... ........... ......................  26
Speiser v. Randall, 357 U. S. 513 (1958) ....... ...............  24
State v. Caez, 81 N. J. Super. 315, 195 A. 2d 496

(1963) ....................... ..................... ............. .................. . 26
State v. Hunter, 106 N. C. 796, 11 S. E. 366 (1890) .......  26
State v. Salerno, 27 N. J. 289, 142 A. 2d 636 (1958) .... 26
State v. Starr, 57 Ariz. 270, 113 P. 2d 356 (1941) .......  26
State v. Sugarman, 126 Minn. 477, 148 N. W. 466

(1914) ....... ............ .... ............. ........................................  27
State v. Taylor, 38 N. J. Super. 6, 118 A. 2d 36 (1955) 21
Staub v. Baxley, 355 U. S. 313 (1958) ................... ....15,23
Stromberg v. California, 283 IT. S. 359 (1931) ...........  14

Taylor v. Louisiana, 370 U. S. 154 (1962) .....   15,30
Territory of Hawaii v. Anduha, 48 F. 2d 171 (9th Cir.

1931)   ................................................................... ..26,28
Thistlewood v. Trial Magistrate for Ocean City, 236

Md. 548, 204 A. 2d 688 (1964) .........   27
Thomas v. Collins, 323 U. S. 516 (1945) ..........     14

PAGE



V I

Thompson v. City of Louisville, 362 U. S. 199 (1960)
15,18, 30

Thornhill v. Alabama, 310 U. S. 88 (1940) ...........16,17, 25
Tinsley v. City of Richmond, 202 Ya. 707, 119 S. E. 2d 

488 (1961), app. dism’d, 368 IT. S. 18 (1951) ....22, 26, 28, 29
Tot v. United States, 319 U. S. 463 (1943) ..................  24
Tucker v. Texas, 326 U. S. 517 (1946) ..........................  15

United States v. National Dairy Prods. Co., 372 U. S.
29 (1963) ........ ........... ................ ...... ................ ........... 17,29

Village of Deer Park v. Schuster, 16 Ohio Ops. 485,
30 Ohio L. Abs. 466 (Ct. Com. Pis. 1940) ............... 26

Whaley v. Cavanagh, 237 F. Supp. 900 (S. D. Cal. 
1963), aff’d per curiam on opinion below, 341 F. 2d
295 (9th Cir. 1965) .......................................................... 27

Williams v. North Carolina, 317 U. S. 287 (1942) .......  14
Wright v. Georgia, 373 U. S. 284 (1963) ......................  15

Statutes

Birmingham General City Code, §1142, as amended by
Ordinance No. 1436-F ................................ 2,10,11,12,13,

14,17,18,19, 20, 21, 
22, 23, 24, 25, 27, 29

Birmingham General City Code, §1231 .............3,10,11,13,
14, 20, 29, 30

28 United States Code, §1257(3) ......................................  2

Other Authority

Note, 109 U. Pa. L. Rev. 67 (1960)

PAGE

16



I n  t h e

(Emtrt ni the United States
October T erm, 1965 

No. 5

F red L. Shuttlesworth,

Petitioner,
—v.—

City of B irmingham.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE 

STATE OF ALABAMA

----------- ---------------

BRIEF FOR PETITIONER

Opinions Below

The orders of the Supreme Court of Alabama denying 
the petition for writ of certiorari to the Court of Appeals 
(R. 146) and denying a rehearing (R. 147) are reported at 
276 Ala. 707, 161 So. 2d 799 (1964). The opinion of the 
Court of Appeals (R. 137-41) is reported at 42 Ala. App. 
296, 161 So. 2d 796 (1963). The order denying a rehearing 
(R. 141) is noted at 42 Ala. App. 296, 161 So. 2d 796 (1964). 
The judgment and sentences of the Tenth Judicial Circuit 
Court of Alabama are unreported (R. 10-12). The judg­
ment and sentences of the Recorder’s Court of the City 
of Birmingham are unreported (R. 2).



2

Jurisdiction

The final judgment of the Court of Appeals of Alabama, 
which is the order denying a rehearing, was entered on 
January 7, 1964 (R. 141). A petition for certiorari filed 
in the Supreme Court of Alabama was denied on February 
20, 1964 (R. 146) and an application for rehearing was 
denied March 26, 1964 (R. 147). On June 19, 1964, by 
order of Justice Black, the time within which to file a 
petition for writ of certiorari was extended to August 23, 
1964 (R. 148). The petition was filed August 21, 1964 and 
was granted March 1, 1965 (R. 149).

The jurisdiction of this Court is invoked pursuant to 28 
U. S. C. §1257(3), petitioner having asserted below, and 
asserting here, deprivation of rights, privileges and im­
munities secured by the Constitution of the United States.

Constitutional and Statutory Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case also involves:

Section 1142 of the General City Code of B irming­
ham as A mended by Ordinance N o. 1436-F:

Streets and Sidewalks to be Kept Open For Free Pas­
sage.

Any person who shall obstruct any street or sidewalk 
or part thereof in any manner not permitted by this 
code or other ordinance of the City with any animal or 
vehicle, or with boxes or barrels, glass, trash, rubbish



3

or display of wares, merchandise or sidewalk signs, or 
other like things, so as to obstruct the free passage of 
persons on such streets or sidewalks or any part there­
of, or who shall assemble a crowd or hold a public meet­
ing in any street without a permit, shall, on conviction, 
be punished as provided in Section 4.

It shall be unlawful for any person or any number of 
persons to so stand, loiter or walk upon any street or 
sidewalk in the City as to obstruct free passage over, 
on or along said street or sidewalk. It shall also be un­
lawful for any person to stand or loiter upon any street 
or sidewalk of the City after having been requested by 
any police officer to move on.

Section 1231 of the General City Code of B irming­
ham :

Obedience to Police.

It shall be unlawful for any person to refuse or fail 
to comply with any lawful order, signal or direction 
of a police officer.

Questions Presented

1. Whether, on its face and as applied to one who ques­
tions a policeman’s order, an ordinance making it an of­
fense to stand or loiter on any sidewalk in the city after 
having been requested by any policeman to move on is 
vague and overbroad in violation of the First and Four­
teenth Amendments.

2. Whether, on its face and as applied to one who stands 
conversing on a sidewalk within a group of ten or twelve



4

persons—the entire group occupying one half the side­
walk—an ordinance making it an offense to so stand, loiter 
or walk on any sidewalk in the city as to obstruct free pas­
sage over, on or along the sidewalk is vague and over­
broad in violation of the First and Fourteenth Amendments.

3. Whether, under an ordinance which has been con­
strued as making it an offense to refuse or fail to comply 
with an order of a policeman relating to vehicular traffic, 
there is any evidence consistent with due process of law 
to sustain petitioner’s conviction, where the only police 
order shown by the prosecution is a policeman’s order 
directed to a group of pedestrians standing on a sidewalk, 
commanding them to disperse.

Statement of the Case

On April 4, 1962, the petitioner, Eeverend Fred L. Shut- 
tlesworth, was arrested by four or five police officers1 at 
the corner of Second Avenue and 19th Street North in the 
City of Birmingham, Alabama. This case challenges his 
convictions for loitering and noncompliance with a police 
order on that occasion, pursuant to which he has been sen­
tenced to 180 days imprisonment at hard labor, and an ad­
ditional 61 days imprisonment at hard labor in default of

1 Technically, Patrolman Byars made the arrest and denied that 
other officers assisted him (R. 30). But Officers Hallman and Davis 
testified that Byars beckoned them to the scene and that they 
arrived prior to the arrest (R. 59, 64, 74). Officer Renshaw, 
who had also come up behind Byars, regarded himself as having 
assisted by his presence in the arrest (R. 48). Officer Allred was 
a short distance off at the time (R. 66-67).



5

fine and costs (R. 10-11). The following statement of the 
circumstances of his arrest is taken from the testimony of 
the arresting officers unless otherwise indicated; where 
based on uncontradicted testimony of defense witnesses, 
that source is noted.

On April 4, 1962, the Negro citizens of Birmingham were 
engaged in a boycott of the downtown department stores 
(R. 89, 122: uncontradicted testimony of defense witness 
Armstrong and of petitioner). Word of the boycott was 
known to the police (R. 43-44, 63, 78), including Patrolman 
Byars (R. 24-25). At about 10:30 a.m. Byars observed a 
group of four or six persons, including petitioner, walking 
south on the west sidewalk of 19th Street toward the inter­
section of 19th Street and Second Avenue (R. 16, 25, 35).2 
Newberry’s Department Store is located at the northwest 
corner of that intersection (R. 17), having a front entrance 
on the corner (R. 17, 26). Byars entered a rear entrance 
of Newberry’s, went through the store to the front entrance, 
and stood inside the entrance observing the corner (R. 16-17, 
18, 26). On the corner, he saw a group of ten or twelve per­
sons (R. 17, 27, 38, 138)3 “ all congregated in one area” (R. 
17), “ [sjtanding and listening and talking” (R. 17). Peti­
tioner Shuttlesworth was among them (R. 17) and seems 
to have been at the center of the conversation (R. 38).

2 Byars conceded that the group was not obstructing traffic and 
was not violating any ordinance at this time (R. 25-26).

3 When Officer Renshaw arrived after Byars had accosted the 
group, Renshaw estimated that there were eight or ten or twelve 
persons with petitioner (R. 40, 49). Officer Hallman, who seems 
to have observed the group at about the same moment, estimated 
that there were five or six persons with petitioner and petitioner’s 
co-defendant below, Reverend James S. Phifer (R. 59), or five or 
six in all (R. 60). Officer Allred guessed the size of the group 
at the time as ten or fifteen or twenty (R. 71). Officer Davis 
put it at ten or twelve (R. 74).



6

Byars observed the group “ for a minute to a minute and a 
half while they stood” (B. 18; see B. 26). He then left the 
store and told the group to move on and clear the sidewalk 
(B. 18, 138). Some but not all of the group began to move 
away (B. 18, 138). Byars repeated his command and peti­
tioner asked: “You mean to say we can’t stand here on 
the sidewalk?” (B. 18; cf. B. 38). At this moment, motor­
cycle patrolman Benshaw arrived on the scene and came up 
behind Patrolman Byars (B. 41, 47-48, 51). Officers Hallman 
and Davis, on a motion from Byars, came over from the 
southeast corner of the intersection (B. 59, 64, 74). Byars 
“ said nothing in return. [He] . . . only hesitated again 
for a short time and informed them for the third and last 
time [he] . . . was informing them they would have to 
move and clear the sidewalk or else they would be placed 
under arrest for obstructing the sidewalk. . . . ” (B. 18). By 
now, all persons save petitioner had dispersed (B. 28, 35, 
60, 138-139). Petitioner repeated his inquiry whether the 
officer meant that they could not stand in front of the store 
(B. 18).4 Byars told petitioner he was under arrest (B. 18). 
Petitioner said: “Well I will go into the store” (B. 18, 41, 
139), and walked to Newberry’s, where Byars followed him 
through the door and arrested him just inside (B. 18, 139). 
Petitioner offered no resistance and gave “ [n]o trouble” 
(B. 30; see B. 55).5 Byars estimated the time during which

4 Byars’ testimony is not consistent on what, if anything, peti­
tioner said at this time. At another point, Byars testified that 
petitioner’s second question was: “Do you mean to tell me we 
can’t go into the store?” (E. 20). Officer Eenshaw testified that 
at this stage of the conversation, petitioner said: “We are just 
standing here on the sidewalk” (E. 41).

5 Byars then took petitioner to the west curb of 19th Street 
just north of Second Avenue to await transportation to jail. 
Eeverend James S. Phifer, one of petitioner’s companions and



7

his three orders to disperse were given and petitioner ar­
rested as one and one half minutes (R. 32).

There is considerable confusion in the officer’s testimony 
as to the location of the group of ten or twelve persons 
standing on the corner outside Newberry’s and as to how 
much, if at all, pedestrian traffic was impeded by their 
presence. Byars placed the group on the corner “ in the 
western half of the western cross walk . . . ” (R. 17)6 but 
later testified they were “ [j]ust east and north of the [east- 
west 19th Street] cross walk on the sidewalk” (R. 21). Ren- 
shaw placed them “ at the curb on the 2nd Avenue side at 
the cross walk that crosses over 2nd Avenue” (R. 42), i.e., 
at the north-south crosswalk. Concerning the density of 
pedestrian traffic, Byars testified “ There was some people 
moving back and forth” (R. 17). Traffic was “normal for a 
Wednesday at that particular time of day” (R. 20); Byars 
estimated that 75 to 100 pedestrians per minute were pass­
ing through the intersection, in all four directions, on all 
four corners (R. 30-31; see also R. 57). He said that: “ On 
some occasions people who were walking in an easterly 
direction on the north side of 2nd Avenue had to go into the

his co-defendant in the present trial, approached and began talking 
to petitioner. Byars twice told him that he could not talk to 
Shuttlesworth, who was a prisoner; and when Phifer continued 
to talk to petitioner, Byars arrested Phifer as well (R. 19, 32-33). 
Phifer’s conviction of loitering and noncompliance with a police 
order after joint trial with petitioner below was reversed by the 
Alabama Court of Appeals, which found the evidence insufficient 
to sustain either charge. Phifer v. City of Birmingham, 42 Ala. 
App. 282, 160 So. 2d 898 (1963), cert, denied, 160 So. 2d 902 
(Ala. 1964).

6 When Byars says “ in the . . . cross walk” he means on the 
sidewalk in front of the crosswalk. The record is clear that none 
of the group were in the street at any time; Byars explicitly 
testified that they were all on the sidewalk (R. 27).



8

street to get around the people who were standing there” 
(R. 17). Byars saw some people step off the curb (R. 20) 
into Second Avenue (R. 39), and said that “ Due to the peo­
ple moving in an westerly direction along 2nd Avenue they 
would have had to have waited until those people got by 
or either elect to go into the street to pass the group of 
people standing there” (R. 20; see R. 138). Again, the 
persons standing on the corner “ were blocking half of the 
sidewalk causing the people walking east [“ Along 2nd 
Avenue” ] to go into the street around them” (R. 28). How­
ever, on cross examination, Byars testified that the per­
sons on the corner did not block the east-west crosswalk 
at all (R. 22)7 and that they left more than half of the 
north-south crosswalk free (R. 22). Officer Renshaw esti­
mated that the group occupied “ about half” the sidewalk 
(R. 41). They “ had the crosswalk [sic] approximately half 
blocked” (R. 50). Actual disruption of pedestrian traffic 
must have been slight, for Officer Hallman, who was as­
signed to work traffic at the intersection (R. 61) and who 
was standing on the southeast corner of Second Avenue and 
19th Street North (R. 59), saw the group standing on the 
northwest corner but took no note of them as a source of 
concern prior to Patrolman Byars’ arrival on the scene 
(R. 62-63).

Although Byars testified that he had read of prior arrests 
of petitioner Shuttlesworth (R. 22-23) and had seen peti­
tioner’s photograph and seen him on television (R. 23)— 
and although Officer Renshaw conceded that petitioner was 
a notorious person in Birmingham by reason of his civil

7 Yet Byars testified he told the group to move on in order to 
allow free passage for pedestrians east and west (R. 18).



9

rights activities (R. 45-46; see also R. 77-78)8—Byars in­
sisted that he was not familiar with petitioner’s face at the 
time of the arrest (R. 23, 29; cf. R. 16). Byars said he 
“ didn’t pay particular notice to the race” of the persons in 
the group on the corner (R. 27), and at trial did not “know 
what color they were” (R. 36). He identified them as a group 
because “ They were all standing and not moving” (R. 36). 
Officer Renshaw acknowledged that the group was all Negro 
(R. 49), and Officer Davis described them as “ a group of 
colored people” (R. 73). The trial court, permitted defense 
testimony that, because of the boycott, there were few other 
Negroes in the area at the time, making petitioner’s group 
conspicuous (R. 89, 122: uncontradicted testimony of de­
fense witness Armstrong and of petitioner). Other attempts 
by petitioner to show that his arrest and prosecution were 
racial harassment were disallowed by the trial court on 
prosecutor’s objections (R. 115-116).

Petitioner’s version of the events of April 4, 1962, sup­
ported by his testimony and that of his co-defendant Phifer 
and four other witnesses, was entirely irreconcilable with 
that of the arresting officers which the state courts credited. 
Petitioner with his five companions was walking south on 
19th Street ; slowed at the intersection of Second Avenue 
for a traffic light; was immediately accosted by Patrolman 
Byars and ordered to move on (Patrolman Byars, however, 
stationed himself directly in petitioner’s path so that peti­
tioner could not continue in the direction in which he had 
been walking); attempted to move on by going into New­
berry’s; and was pursued and arrested (R. 80-84, 87-89, 90- 
94, 100-104, 106-108, 111-112).

8 Renshaw admitted knowing petitioner by sight (R. 40) and 
recognizing him on the morning of April 4 (R. 48).



10

April 5, 1962, petitioner was tried and convicted in the 
Recorder’s Court of the City of Birmingham of loitering 
and noncompliance with a police order, and was sentenced to 
180 days at hard labor, $100 fine and costs (R. 1-2). He 
appealed for trial de novo in the Circuit Court of the Tenth 
Judicial District, and was there charged by complaint in 
two counts: One, that he “ did stand, loiter or walk upon a 
street or sidewalk within and among a group of other per­
sons so as to obstruct free passage over, on or along said 
street or sidewalk . . .  or did while in said group stand or 
loiter upon said street or sidewalk after having been re­
quested by a police officer to move on, contrary to . . . Sec­
tion 1142 of the General City Code . . . , as amended . . . ” 
(R. 3); Two, that he “ did refuse to comply with a lawful 
order, signal or direction of a police officer, contrary to 
. . . Section 1231 of the General City Code . . . ” (R. 3). 
By motion to quash and demurrers timely filed, petitioner 
attacked these charges on the grounds that the ordinances 
under which they were laid were unconstitutional on their 
faces and as applied to his conduct, by force of the First 
and Fourteenth Amendments to the Constitution and be­
cause the charges and ordinances were vague and over­
broad in contravention of those Amendments (R. 4-6). At 
the conclusion of the prosecution’s case, he moved to exclude 
the testimony and for judgment on the grounds that the 
charges were supported by “ absolutely no evidence” and 
that the conduct for which he was prosecuted was pro­
tected by the First and Fourteenth Amendments (R. 7). 
The Circuit Court overruled all these objections, found the! 
defendant “guilty as charged in the Complaint” (R. 10), 
sentenced him to 180 days at hard labor and to another 61 
days at hard labor in default of fine and costs, and over­
ruled his timely motion for new trial (R. 8-9) renewing all



11

Ms federal contentions and claiming error in the exclu­
sion of testimony intended to show that the prosecution was 
racial harassment (R. 10-11). The Alabama Court of Ap­
peals affirmed the conviction and sentence (R. 136-137), 
expressly rejecting petitioner’s federal attack on the ordi­
nances by reference to Phifer v. City of Birmingham, 42 Ala. 
App. 282,160 So. 2d 898 (1963), cert, denied, 160 So. 2d 902 
(Ala. 1964),9 holding the evidence sufficient to support the 
verdict, and rejecting petitioner’s claim of error in the ex­
clusion of testimony (R. 139-141). Timely application for 
rehearing was denied by that court (R. 141); the Alabama 
Supreme Court denied timely applications for certiorari 
and for rehearing (R. 146-147) preserving petitioner’s fed­
eral contentions (R. 144-145).

9 In Phifer, the Alabama Court of Appeals sustained the over­
ruling of a motion to quash and demurrers by petitioner Shuttles- 
worth’s co-defendant below, these documents being identical to 
those filed on behalf of Shuttlesworth. Phifer’s constitutional 
attack on Section 1142, the loitering ordinance, was rejected on 
the merits; Phifer’s challenge to Section 1231 was not reached, 
because “While the demurrer in its caption is directed to the 
complaint ‘and to each and every count thereof, separately and 
severally,’ it is really interposed to the two counts of the com­
plaint jointly.” 42 Ala. App. a t ------ , 160 So. 2d at 900. What­
ever the force under state law of this esoteric ruling that a 
paper expressly captioned “several” is to be deemed “joint,” it is 
clear that the ground is insufficient to bar this court’s review on 
the merits of the attack on Section 1231. Any “objection which 
is ample and timely to bring the alleged federal error to the 
attention of the trial court and enable it to take appropriate 
corrective action is sufficient to serve legitimate state interests, 
and therefore sufficient to preserve the claim for review here.” 
Douglas v. Alabama, 380 U. S. 415, 422, see Henry v. Mississippi, 
379 U. S. 443 (1965). In any event, the matter is immaterial 
because petitioner’s attack on Section 1142 is dispositive of the 
case. See pp. 13-14 infra.



12

Summary of Argument

I. Petitioner having been charged by complaint with 
three distinct offenses, and having been found “ guilty as 
charged in the Complaint,” is entitled to have his convic­
tion reversed by this Court if any one of the charges is 
constitutionally invalid.

II. Birmingham Code §1142, insofar as it makes it un­
lawful to stand or loiter on any sidewalk of the city after 
having been requested by a police officer to move on, is 
vague and overbroad and hence unconstitutional under the 
First and Fourteenth Amendments. As written, the ordi­
nance gives any policeman absolutely arbitrary power to 
order a citizen—including any citizen who may be exercis­
ing his rights of free expression to picket, address a crowd, 
or distribute a handbill—off the streets; and subjects the 
citizen to severe criminal penalties if he pauses some in­
definite period of time to question the policeman’s order. 
Construction of the section by the Alabama courts so as to 
make unlawful only disobedience of a policeman’s order 
addressed to one who loiters so as to obstruct free passage 
on the sidewalks cannot validate petitioner’s conviction 
because (A) this narrowing construction post-dated his 
alleged violations and his conviction; (B) the Alabama deci­
sions impermissibly throw the burden of proof on a defen­
dant to disprove that he was loitering so as to obstruct 
free passage; and (C) a prohibition of loitering so as to 
obstruct free passage—lacking any requirement of mens 
rea or of actual obstruction of pedestrians—is itself un­
constitutionally vague and overbroad.

III. Birmingham Code §1142, insofar as it makes it un­
lawful to so stand, loiter, or walk on any sidewalk in the



13

city as to obstruct free passage on the sidewalk, is simi­
larly vague and overbroad.

IV. Birmingham Code §1231, making it unlawful to re­
fuse to comply with a lawful police order, has been con­
strued by the Alabama Court of Appeals as applying only 
to police orders relating to vehicular traffic. Conviction of 
petitioner under the ordinance for failing to obey a police 
order commanding a group of pedestrians on a sidewalk 
to move on entirely lacks evidentiary support.

A R G U M E N T

I.

Since the Verdict Against Petitioner Was General, His 
Conviction Must Be Reversed if Any of the Charges Is 
Constitutionally Invalid.

The two-count complaint against petitioner charged in its 
first count that he did stand, loiter or walk on a street or 
sidewalk in a group of persons so as to obstruct free pas­
sage over the street or sidewalk, or did loiter on the street 
or sidewalk within the group after a police request to move 
on. This charge is framed upon the two disjunctive sen­
tences of the second paragraph of Birmingham City Code 
§1142, as amended, pp. 2-3 supra, making it unlawful 
for any person or number of persons “ to so stand, loiter or 
walk upon any street or sidewalk in the city as to obstruct 
free passage over, on or along said street or sidewalk” and 
making it “ also . . . unlawful for any person to stand or 
loiter upon any street or sidewalk of the city after having 
been requested by any police officer to move on.” In its 
second count, the complaint charged that petitioner did



14

refuse to comply with a lawful police order, in violation of 
Birmingham City Code §1231, making it unlawful “ to re­
fuse or fail to comply with any lawful order, signal or 
direction of a police officer.” Since petitioner was found by 
the Circuit Court “ guilty as charged in the Complaint,” 
familiar principles require that the conviction be reversed 
if any of the three offenses described in sections 1142 and 
1231 are constitutionally vulnerable. Stromberg y. Cali­
fornia, 283 U. S. 359, 367-368 (1931); Williams v. North 
Carolina, 317 U. S. 287, 291-293 (1942); Thomas v. Collins, 
323 U. S. 516, 529 (1945).

II.

On Its Face, and as Applied to Petitioner’ s Conduct, 
Section 1142’s Proscription of Standing or Loitering on 
a Sidewalk After a Police Order to Move on Is Vague and 
Overbroad in Violation of the First and Fourteenth 
Amendments.

A. The ordinance as written is vague and overbroad.

Understood as it is plainly written, Birmingham Code 
§1142 prohibits any loitering or standing on a sidewalk 
after a police order to move on. The word “also” is used 
to make clear that this is an offense distinct from obstruc­
tive loitering. To be guilty of it, a defendant need not have 
loitered so as to obstruct pedestrian traffic prior to the 
policeman’s order, nor after the order. The order itself 
is not required in express terms to be lawful. Compare 
§1231, p. 3 supra. The circumstances under which an 
order to move on may be made by a policeman are in no 
way defined or restricted. The ordinance simply puts a 
citizen’s right to be on the sidewalks of Birmingham in 
the unfettered discretion of the police.



1 5

Such an ordinance is patently unconstitutional under the 
decisions of this Court. Among the persons falling within 
its broad and undifferentiated grant of regulatory power 
to the police are classes of persons exercising their First- 
Fourteenth Amendment freedoms of expression in many 
classic form s: handbill distributors, soapbox speakers, 
peaceful demonstrators, religious evangelists requesting 
audience of passers-by. That such persons may not be 
denied the use of the streets by order of the police in a 
policeman’s unconfined discretion is settled. Lovell v. Grif­
fin, 303 U. 8. 444 (1938); K-unz v. New York, 340 U. S. 290 
(1951); Cox v. Louisiana, 379 U. S. 536 (1965); Cantwell 
v. Connecticut, 310 U. S. 296 (1940). And see Hague v. 
C. I. O., 307 U. S. 496 (1939); Schneider v. State, 308 U. S. 
147 (1939) (Schneider’s case); Largent v. Texas, 318 U. S. 
418 (1943); Marshy. Alabama, 326 U. S. 501 (1946); Tucker 
v. Texas, 326 U. S. 517 (1946); Saia v. New York, 334 IT. S. 
558 (1948); Niemotko v. Maryland, 340 U. S. 268 (1951); 
Staub v. Baxley, 355 TJ. S. 313 (1958).

So the ordinance cannot constitutionally mean what it 
purports to say. It cannot constitute the police the censors 
of the sidewalks in violation of the cited decisions. It can­
not constrain a citizen to obey a police order whether law­
ful or unlawful, because “ one cannot be punished for fail­
ing to obey the command of an officer if that command is 
itself violative of the Constitution.” Wright v. Georgia, 
373 U. S. 284, 291-292 (1963). See Taylor v. Louisiana, 370 
IT. S. 154 (1962); Edwards v. South Carolina, 372 IT. S. 
229 (1963); cf. Thompson v. City of Louisville, 362 IT. S. 
199, 206 (1960); Barr v. City of Columbia, 378 IT. S. 146, 
150 (1964).

But if the ordinance cannot condemn all of the conduct 
which on its face it appears to condemn, what conduct is



16

in fact prohibited by it? When does it authorize an officer 
to issue orders, and when does it oblige a citizen to obey 
them? If it be assumed that the ordinance requires obedi­
ence only to lawful orders, and that it empowers a police­
man to command citizens to move on only when he can 
constitutionally do so, the effect of the regulation is to make 
the citizen guess under threat of criminal penalty the 
boundaries of his constitutional freedom to use the streets. 
That is, as one Circuit Court has aptly put it, “ a difficult 
question which must necessarily be dependent upon the 
facts of the particular case,” Anderson v. Albany, 321 F. 
2d 649, 657 (5th Cir. 1963); see Cox v. Louisiana, 379 U. S. 
536, 554-555 (1965), and an ordinance which makes this 
uncertain constitutional boundary the line of criminality 
is obnoxious to all of the objections which have caused this 
Court to void numerous statutes and ordinances which en­
croached overbroadly on constitutionally protected conduct. 
First, by reason of the obscurity of the constitutional 
boundary itself, the ordinance gives no fair notice, “no 
warning as to what may fairly be deemed to be within its 
compass.” Mr. Justice Harlan, concurring, in Garner v. 
Louisiana, 368 U. S. 157, 185, 207 (1961); see Note, 109 
U. Pa. L. Rev. 67, 76 (1960), and authorities cited in foot­
note 51. Second, the ordinance remains “ susceptible of 
sweeping and improper application,” N.A.A.C.P. v. Button, 
371 U. S. 415, 433 (1963), furnishing in its overbreadth a 
convenient tool for “ harsh and discriminatory enforcement 
by prosecuting officials, against particular groups deemed 
to merit their displeasure,” Thornhill v. Alabama, 310 IT. S. 
88, 97-98 (1940), and inviting arbitrary, autocratic and 
harassing uses by the police. “ It is enough that a vague 
and broad statute lends itself to selective enforcement 
against unpopular causes.” N.A.A.C.P. v. Button, supra,



17

at 435. Finally, the threat of serious penalties—here nearly 
eight months at hard labor—for any citizen who, in the 
service of an unpopular cause, guesses wrongly the bound­
aries of his constitutional freedoms (or is unable to per­
suade a state trial judge to discredit the testimony of police­
men that he guessed them wrongly), serves effectively to 
coerce the citizen to obey even lawless police orders and 
surrender through fear his constitutional rights to the free 
use of the streets. See Thornhill v. Alabama, supra, at 
97-98; Smith v. California, 361 U. S. 147, 150-151 (1959); 
Cramp v. Board of Public Instruction, 368 U. S. 278, 286- 
288 (1961); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 
66-70 (1963); Baggett v. Bullitt, 377 U. S. 360, 378-379 
(1964); Dombrowski v. Pfister, 380 U. S. 479, 494 (1965); 
and see United States v. National Dairy Prods. Co., 372 
U. S. 29, 36 (1963) (dictum). Plainly an ordinance so 
written is bad on its face.

Moreover, this ordinance is susceptible of the same criti­
cisms in another of its operative elements. Section 1142 
makes it unlawful to “ stand or loiter” on the street after 
having been told to move on. In this case petitioner was 
found guilty of standing or loitering on evidence that, dur­
ing less than a minute and a half, he persisted in asking the 
officer whether the officer seriously meant that he could not 
stand on the sidewalk in front of Newberry’s. No scienter 
or mens rea, no intention to disobey or flout the officer’s 
order, was shown; apparently none is required by the ordi­
nance as construed by the Alabama courts. Whatever ob­
struction to pedestrians might at any time have existed was 
now gone; all petitioner’s companions had dispersed; and, 
with the explicit concerns of the officer’s initial order satis­
fied, petitioner stood where he was for the ostensible pur­
pose of inquiring what the officer commanded, and perhaps



18

of verbally contesting Ms authority to make the command. 
The officer did not reply to petitioner’s question or other­
wise explain himself; he merely repeated his command— 
whose justification had faded or was fading; and petitioner 
repeated his question. If evidence of such conduct is con­
stitutionally sufficient to support conviction under §1142, 
see Thompson v. City of Louisville, 362 U. S. 199 (1960), 
the ordinance has been construed in such a way as to jeop­
ardize any citizen who pauses to question an officer’s order. 
At some unascertainable point his delay in complying 
causes him to “ stand or loiter” and thereby makes his con­
duct criminal. Here again the vice of the ordinance is that 
it cannot mean what it purportedly says, see Thompson v. 
City of Louisville, supra, at 206, and no principle to limit 
what it purportedly says sufficiently intelligible to accord 
fair notice and assure non-arbitrary application appears.10 
When this deficiency is coupled with the vagueness of the 
ordinance as to the circumstances under which a policeman 
may make an order to move on, §1142 becomes little more 
than a snare. It is nigh impossible for the citizen to ascer­
tain the propriety of the policeman’s command, and he who 
stops to question may find himself a misdemeanant.11

10 Cf. Commonwealth v. Carpenter, 325 Mass. 519, 91 N. E. 2d 
666 (1950), voiding an ordinance which made it unlawful to 
“willfully and unreasonably saunter or loiter for more than seven 
minutes after being directed by a police officer to move on.”

11 In Cox v. Louisiana, 379 U. S. 536, 551 (1965), this Court 
said that a statute punishing one who “ fails or refuses to disperse 
and move on” when ordered to do so by an officer would be suf­
ficiently specific if the conditions under which the officer’s order 
might issue were narrowly restricted. Here they are unrestricted, 
as in Cox; and the language “stand or loiter,” construed without 
a requirement of intent to resist the officer, is considerably more 
vague than “fails or refuses to disperse.” See Carlson v. California, 
310 U. S. 106, 112 (1940).



19

On the present record, the potential of §1142 for unfair, 
arbitrary and discriminatory application has been fully re­
alized. Had Newberry’s windows presented a fetching 
Easter display, and had a crowd of attracted persons 
paused to look, filling half the sidewalk for a minute and a 
half, it is inconceivable that Patrolman Byars would have 
commanded them to move on. Had such a command been 
made, and—while the crowd was dispersing—had one such 
window-shopper asked Byars did Byars really mean he 
could not look in the window, it is inconceivable that he 
would have been arrested and charged, and phantasma­
goric that he would have been convicted and sentenced to 
almost eight months at hard labor. Had a Newberry’s de­
livery man blocked the same half a sidewalk for the same 
ninety seconds, or had he stopped to complain to an officer 
when told to move on, no sane mind could imagine that he 
would be found in petitioner Shuttlesworth’s posture today. 
Yet if Shuttlesworth was warned that his position was dif­
ferent from that of the window-shopper or delivery man, 
it was only because Shuttlesworth is a Negro and a “no­
torious” civil rights leader in Birmingham, Alabama. And 
however convincing to a state court may be Patrolman 
Byars’ protestations that he did not recognize Shuttlesworth 
when he proceeded through Newberry’s to observe, com­
mand and then arrest him, any non-raeial explanation for 
the ultimate result in this prosecution is delusive. The very 
fact that, under this Court’s ordinary practice, Byars’ tes­
timony must escape strict review here is the strongest rea­
son for invalidation of the vague ordinance under which 
such a conviction could occur.



20

B. The construction o f  §1142  by the Alabama courts has not 
cured its objectionable vagueness and overbreadth.

Petitioner’s case and that of his co-defendant below, 
Reverend James 8. Phifer, were the first involving the 
ordinance to reach the Alabama appellate courts. In neither 
case did the Alabama Court of Appeals attempt any limit­
ing construction of §1142. Phifer v. City of Birmingham, 
42 Ala. App. 282, 160 So. 2d 898 (1963), cert, denied, 160 
So. 2d 902 (Ala. 1964) ;12 Shuttlesworth v. City of Birming­
ham, 42 Ala, App. 296, 161 So. 2d 796 (1964), cert, denied, 
161 So. 2d 799 (Ala.), R. 137-141. The appeal in Shelton 
v. City of Birmingham, 42 Ala. App. 371, 165 So. 2d 912 
(1964), involved Birmingham Code §1231, p. 3 supra 
(noncompliance with a police order); affirming a civil rights 
demonstrator’s conviction under that ordinance, the Court 
of Appeals adopted the rule that “ the failure to comply 
with a police officer’s order to ‘Move on,’ ‘can be justified 
only where the circumstances show conclusively that the 
police officer’s direction was purely arbitrary and was not 
calculated in any way to promote the public order.’ ” 42 
Ala. App. at ------ , 165 So. 2d at 913.13 Judge Cates dis­

12 Phifer’s conviction was reversed for want of evidence that 
he had loitered or stood on the sidewalk after being told to move 
on. Since the record was clear that everyone save Shuttlesworth 
had dispersed at Byars’ order, and that Byars himself did not 
believe Phifer had failed to comply with his order, this decision 
is uninformative as to the meaning of §1142. In sustaining the 
ordinance against Phifer’s claim that it was facially unconstitu­
tional, the Court of Appeals characterized it as a traffic regula­
tion, but this characterization says nothing about the incidence 
or operative elements of §1142. The cases cited by the court as
involving “similar” ordinances, 42 Ala. App. at ------ , 160 So. 2d
at 900, in fact involve several different sorts of regulations.

13 The court quotes People v. Galpern, 259 N. Y. 279, 181 N. E. 
572 (1932), and cites State v. Taylor, .38 N. J. Super. 6, 118



21

agreed on this latter point. Smith v. City of Birmingham, 
42 Ala. App. 467, 168 So. 2d 35 (1964), and Middlebrooks
v. City of Birmingham, — — Ala. A p p .------ , 170 So. 2d
424 (1964), cert, denied, 170 So. 2d 427 (Ala. 1964), applied 
the rule of Shelton to Birmingham Code §1142, with Judge 
Cates still objecting that that rule impermissibly required 
a defendant “ to come into court and disprove the police­
man’s case.” Middlebrooks v. City of Birmingham, supra,
------Ala. App. at --------, n. 3, 170 So. 2d at 426 n. 3. In
the Smith opinion, the court in an extended footnote first 
announced the view that §1142 was directed at loitering so 
as to obstruct the streets or sidewalks; the implication of 
the footnote, not altogether clear, is that the sort of order 
envisioned by §1142, following which one may not stand or 
loiter, is an order directed to an individual who is previ­
ously in violation of the disjunctive provision of the ordi­
nance prohibiting standing, loitering or walking “ so . . . 
as to obstruct free passage” on a street or sidewalk. Smith
v. City of Birmingham, supra, 42 Ala. A p p .------ at n. 1,
168 So. 2d at 36-37, n. I.14 The Middlebrooks opinion defin­
itively adopted this view. Section 1142:

A. 2d 36 (1955), which also quotes Oalpern, 38 N. J. Super, at 
30, 118 A. 2d at 49, but is otherwise irrelevant. The facts in 
Galpern, which sustain the conviction of a lawyer for congregating 
with others on a sidewalk and refusing to move on when ordered 
by police, evidence that the rule of the New York decision, adopted 
by the Alabama Court of Appeals, leaves the police judgment to 
issue a dispersal order virtually immune against judicial review.

14 The footnote is confusing because it quotes or summarizes de­
cisions of the courts of other States—whether for purposes of 
approval or of distinction is unclear—which rest on statutes dif­
ferent from §1142 and differing among themselves. The holding 
in the Smith case turns on construction of the term “sidewalk” 
in §1142, and so is not helpful on the larger questions posed by 
the ordinance.



22

. . .  is directed at obstructing the free passage over, 
on or along a street or sidewalk by the manner in 
which a person accused stands, loiters or walks there­
upon. Our decisions make it clear that the mere re­
fusal to move on after a police officer’s requesting that 
a person standing or loitering should do so is not 
enough to support the offense.

That there must also be a showing of the accused’s 
blocking free passage is the ratio decidendi of Phifer 
v. City of Birmingham . . . and Shuttlesworth v. City 
of Birmingham . . .  In this respect, we distinguish our 
reasoning from that employed in Tinsley v. City of 
Richmond, 202 Va. 707, 119 S. E. 2d 488. See Smith 
v. City of Birmingham. . . .

The judges of this court in Shelton v. City of Birming­
ham . . . divided two to one as to whether or not evi­
dence of a policeman ordering a defendant to move on 
under a similar ordinance was sufficient to make a 
prima facie case. Kegardless of the quantum of proof 
required, the court in the instant case is again, as it 
was in the Shelton case, unanimous in its conclusion 
[affirming a civil rights demonstrator’s conviction]
(------■ Ala. App. a t------ , 170 So. 2d at 426).

Thus, as now viewed by the Alabama Court of Appeals, 
the loitering-after-order provision of '§1142 is violated only 
when a defendant (1) stands, loiters or walks on the streets 
or sidewalks so as to obstruct free passage, (2) is requested 
by an officer to move on, (3) thereafter loiters or stands 
on the street or sidewalk. At trial on the charge, the fact 
that the policeman requested the defendant to move on 
makes a prima facie case that the defendant was previously 
standing, loitering or walking so as to obstruct the streets



23

or sidewalks, and the defendant can justify disobedience 
of the order only if he can show that it was “purely arbi­
trary and was not calculated in any way to promote the 
public order.”

These decisions concededly narrow the sweeping scope 
of §1142 as written. However, they are ineffective for 
several reasons to give constitutional validity to petitioner’s 
conviction.

First, the decisions post-date petitioner’s arrest and con­
viction, and so cannot retrospectively validate the ordinance 
as applied in his case. Bouie v. City of Columbia, 378 U. S. 
347, 352-354 (1964). Petitioner took this sweeping regula­
tion as he found it written; as written it was unconstitu­
tional on its face; because unconstitutional on its face, he 
was entitled to disobey it. Cf. Lovell v. Griffin, 303 U. S. 444 
(1938); Largent v. Texas, 318 U. S. 418 (1943); Staub v. 
Baxley, 355 U. S. 313 (1958).

Second, the limitation of a citizen’s obligation to obey 
a police order to circumstances where the citizen has been 
loitering so as to obstruct free passage prior to the order 
is an ineffective limitation, coupled as it is with the rule 
that the fact of issuance of the order establishes prima facie 
the circumstance of prior obstructive loitering. The effect 
of the “prima facie” rule is to require the citizen who dis­
obeys a police order to prove at his trial that he was not 
loitering so as to obstruct free passage prior to the order. 
That requirement in effect erases prior loitering as an 
operative element of the charge, for the city need not 
prove it at the trial. And it can hardly be supposed that 
the issuance of a police order has a sufficient rational ten­
dency to show the order’s justification to permit Alabama 
constitutionally to shift the burden of proof of non-justifica­



24

tion to the defendant. Dombrowski v. Pfister, 380 U. S. 
479, 494-496 (1965); see Tot v. United States, 319 U. S. 
463, 469 (1943). What is at issue here is the method of 
litigation not merely of an element of the charge of loitering, 
but of a defendant’s First-Fourteenth Amendment defense 
to that charge.15 On such an issue, the State may not con­
sistently with those Amendments shift the burden of proof 
to the accused; Speiser v. Randall, 357 U. S. 513 (1958), 
is squarely dispositive. Indeed, §1142 presents a far 
stronger case of unconstitutional burden-shifting than 
Speiser. For the defendant cannot fairly be required to 
disprove the policeman’s justification for an order at the 
trial unless the defendant be given some opportunity to in­
quire concerning the basis of the order at the time it is 
issued. But the vagueness of the prohibition that the de­
fendant “ stand or loiter” after the order, see pp. 2-3 supra, 
makes any pause for purposes of inquiry impermissibly 
hazardous.

Finally, even if §1142, as applicable in petitioner’s case, 
clearly precluded conviction except on proof that the peti­
tioner had stood, loitered or walked on the sidewalk so 
as to obstruct free passage, and had then wilfully refused

15 Although the petitioner’s version of the facts surrounding his 
arrest was that he was merely walking on the street when accosted 
by Patrolman Byars, the version upon which the State of Alabama 
relies to support his conviction is that petitioner was addressing 
a group of persons on a street corner. That this is activity pro­
tected by the First and Fourteenth Amendments is hardly dis­
putable. In any event, the ordinance in its normal application 
clearly applies to many sorts of First-Fourteenth Amendment 
activity, see p. 15 supra; and, where this is the case, peti­
tioner need not show that his own conduct was protected to chal­
lenge the ordinance for overbreadth. Thornhill v. Alabama,, 310 
U. S. 88 (1940) ; Aptheker v. Secretary of State, 378 U. S. 500 
(1964).



25

to obey a policeman’s order to move on, the ordinance would 
remain void for overbreadth. The point was decided under 
a virtually identical ordinance in In Be Bell, 19 Cal. 2d 488, 
122 P. 2d 22 (1942) (per Mr. Justice Traynor),10 upon au­
thority of this Court’s decisions in Thornhill v. Alabama, 
310 U. S. 88 (1940), and Carlson v. California, 310 U. S. 106 
(1940). Justice Traynor reasoned— rightly, petitioner be­
lieves—that this “ sweeping prohibition . . . would apply 
equally against peaceful pickets, shoppers engrossed in a 
window display, invalids in wheelchairs, acquaintances who 
stand engaged in conversation.” 19 Cal. 2d at 497, 122 P. 
2d at 28.”  The proscription of standing, loitering, or walk­
ing on any sidewalk encompasses all these classes of per­
sons, together with others—the peaceful demonstrators in 
Fields v. South Carolina, 375 U. S. 44 (1963), and Henry 
v. City of Bock Hill, 376 U. S. 776 (1964); the orators in 
Kunz v. New York, 340 U. S. 290 (1951), and Niemotko v. 
Maryland, 340 U. S. 268 (1951)-—who exercise their First- 
Fourteenth Amendment freedoms on the public sidewalks. 
It is hardly debatable that an interdiction in even the nar­
rowest of these terms, an interdiction of “ loitering” sim- 16 17

16 The ordinance in Bell was broader in one aspect than §1142, 
making it unlawful “ to loiter, stand, or sit upon any public 
highway, alley, sidewalk or crosswalk so as to in any manner 
hinder or obstruct the free passage therein or thereon of persons 
or vehicles passing or attempting to pass along the same, or 
so as to in any manner annoy or molest persons passing along 
the same.” But Justice Traynor’s opinion makes clear that the 
California Supreme Court found the provision overbroad in its 
“obstruct” aspect independently of its “molest” aspect. 19 Cal. 
2d at 496, 122 P. 2d at 27-28.

17 That these applications are not fantastic imaginings—at least 
where citizens on the streets make themselves personally obnoxious 
to officers—is evidenced by the record in People v. Galpern, note 
13, supra. The constitutionality of the statute as applied in that 
case was not before the court.



26

pliciter, would be overbroad and lienee unconstitutional.18 
And the qualifications that the loitering, or standing or 
walking, constitute “blocking free passage,” Middlebrooks

18 Every court except the Supreme Court of Virginia which has 
considered the constitutionality of a proscription of loitering 
simpliciter has held such a proscription void for overbreadth and 
vagueness. Territory of Hawaii v. Anduha, 48 F. 2d 171 (9th Cir. 
1931) ; Soles v. City of Vidalia, 92 Ga. App. 839, 90 S. E. 2d 249 
(1955) ; State v. Caez, 81 N. J. Super. 315, 195 A. 2d 496 (1963); 
City of St. Louis v. Gloner, 210 Mo. 502, 109 S. W. 30 (1908); 
People v. Diaz, 4 N. Y. 2d 469, 151 N. E. 2d 871 (1958); City of 
Akron v. Effland, 112 Ohio App. 15, 174 N. E. 2d 285 (1960) ; 
Ex parte Uittelstaedet, 164 Tex. Crim. 115, 297 S. W. 2d 153 
(1957) ; cf. State v. Hunter, 106 N. C. 796, 11 S. E. 366 (1890) ; 
Village of Deer Park v. Schuster, 16 Ohio Ops. 485, 30 Ohio L. 
Abs. 466 (C. Com. Pis. 1940). Contra: Benson v. City of Norfolk, 
163 Va. 1037, 177 S. E. 222 (1934) ; Tinsley v. City of Richmond, 
202 Va. 707, 119 S. E. 2d 488 (1961), app. dism’d, 368 U. S. 18 
(1961).

State courts have sustained certain limited classes of regula­
tions prohibiting loitering, standing or wandering on the streets:

(A ) Prohibitions of loitering at late hours or under suspicious 
circumstances and failing to give a good account of oneself: 
Dominguez v. City and County of Denver, 147 Colo. 233, 363 
P. 2d 661 (1961) ; City of Portland v. Goodwin, 187 Ore. 409, 
210 P. 2d 577 (1949). But such regulations are construed to 
require overt suspicious conduct, ibid.; Harris v. District of 
Columbia, 132 A. 2d 152, 154 (M. C. A. D. C. 1957), rev’d on 
other grounds, 251 F. 2d 913 (D. C. Cir. 1958); Harris v. District 
of Columbia, 192 A. 2d 814 (C. A. D. C. 1963); State v. Salerno, 
27 N. J. 289, 296, 142 A. 2d 636, 639 (1958) (dictum) ; absent 
such a limitation, they are unconstitutional, Headley v. Selkowitz, 
171 So. 2d 368 (Fla. 1965).

(B) Prohibitions of loitering by specified classes of persons 
(known thieves, pickpockets, etc.) often for specific illegal pur­
poses : Harris v. District of Columbia, supra, in 132 A. 2d 152; In re 
Cregler, 56 Cal. 2d 308, 363 P. 2d 305, 14 Cal. Rptr. 289 (1961). 
These are the classical “vagrancy” loitering regulations.

(C) Prohibitions of loitering in certain specified places whose 
nature suggests a specific illicit purpose of the loiterer: schools, 
State v. Starr, 57 Ariz. 270, 113 P. 2d 356 (1941); Phillips v. 
Municipal Court, 24 Cal. App. 2d 453, 75 P. 2d 548 (1938) ; People 
v. Johnson, 6 N. Y. 2d 549, 161 N. E. 2d 9 (1959) ; railroad toilets 
or platforms, People v. Bell, 306 N. Y. 110, 115 N. E. 2d 821



2 7

v. City of Birmingham, supra, does not sufficiently narrow 
the interdiction. This qualification does not require any 
purpose to obstruct, or any knowledge that free passage 
is obstructed, merely that “ free passage” be blocked.* 19 
What constitutes “ free passage” remains unclear, and thus 
is left at the risk of the defendant, the whim of the police­
man (whom the defendant may not question), the arbitrary 
determination of a magistrate or trial court. No use of the

(1953) ;  waterfront docks and warehouses, People v. Merolla, 9 
N. T. 2d 62, 172 N. E. 2d 541 (1961). Such regulations are 
regularly construed to forbid only loitering for the specific illicit 
purpose. Ibid.; In re Huddleson, 229 A. C. A. No. 3, 721 40 
Cal. Eptr. 581 (1964).

(D) Prohibitions of presence on the streets by specified classes 
of persons (ordinarily minors) at specified times: Thistlewood 
v. Trial Magistrate for Ocean City, 236 Md. 548, 204 A. 2d 688 
(1964). These are the classical curfew regulations.

(E) Prohibitions of actual obstruction of streets or sidewalks 
by loitering or standing: Ex parte Bodkin, 86 Cal. App. 2d 208, 
212, 194 P. 2d 588, 591-592 (1948); City of Chariton v. Fitz­
simmons, 87 Iowa 226, 229-230, 54 N. W. 146, 147 (1893) ; State 
v. Sugarman, 126 Minn. 477, 479, 148 N. W. 466, 468 (1914); 
Commonwealth v. Challis, 8 Pa. Super. 130, 132 (1898); City 
of Tacoma v. Roe, 190 Wash. 444, 445, 68 P. 2d 1028, 1029 (1937). 
At the cited pages the respective courts construe these regulations 
as requiring actual obstruction of persons attempting to use the 
sidewalks, not mere loitering in such a manner as might obstruct 
hypothetical users of the sidewalks. And see Whaley v. Cavanagh, 
237 F. Supp. 900 (S. D. Cal. 1963) aff’d per curiam on opinion 
below,' 341 F. 2d 295 (9th Cir. 1965), where the facial constitu­
tionality of the regulation was not challenged and actual ob­
struction of pedestrians was found.

19 On this ground, the decisions in paragraph (E) of the pre­
ceding footnote are distinguishable. The Alabama Court of Ap­
peals in Middlebrooks apparently meant to justify the issuance 
of a police order under §1142 whenever, in the language of the 
first sentence of the second paragraph of that section, “any person 
or number of persons . . . so stand, loiter or walk upon any street 
or sidewalk in the City as to obstruct free passage over, on or 
along said street or sidewalk.” (Emphasis added.)



28

sidewalks that can be imagined fails in some measure to 
obstruct free passage—even though no pedestrian in fact 
be passing or impeded. The window-shopper, the delivery 
man, the peaceful picket, the peaceful demonstrator, the 
pedestrian who kneels to tie a shoe-lace, all obstruct free 
passage.

It is almost needless to say that such an act cannot 
be enforced, and that no attempt will be made to en­
force it, indiscriminately. It may be enforced against 
those poor hapless ones who are unable to assert or 
protect their rights, but as to all others it will remain a 
dead letter. It may be enforced to suppress one class 
of idlers in order to make a place more attractive to 
idlers of a more desirable class . . . ,20

or, as here, to suppress the members of an unpopular race. 
If the City of Birmingham wishes to prohibit the actual 
obstruction of pedestrians by standing, loitering or walk­
ing on a sidewalk with a purpose to obstruct it, the City 
may do so in those narrow terms. But a prohibition of all 
standing, loitering or walking in such a manner as to ob­
struct free passage sweeps too broadly; and disobedience 
of a police order justifiable in those vague terms may not 
constitutionally be punished. Cox v. Louisiana, supra, 379 
U. S. at 551.21

20 Territory of Hawaii v. Anduha, 48 F. 2d 171, 173 (9th Cir. 
1931).

21 Tinsley v. City of Richmond, 368 U. S. 18 (1961), is not 
apposite in this regard. Nowhere in the Virginia courts or in her 
jurisdictional statement in this Court did Tinsley invoke the 
First Amendment, either in her own behalf or as a ground for 
general invalidity of the ordinance there involved. Nor, on the



29

III.

On Its Face, and as Applied to Petitioner’s Conduct, 
Section 1142’ s Proscription of Standing, Loitering or 
Walking on a Sidewalk so as to Obstruct Free Passage 
Thereon Is Vague and Overbroad in Violation of the 
First and Fourteenth Amendments.

For the reasons stated in the preceding paragraph, that 
portion of Birmingham Code §1142 which purports to make 
it unlawful “ for any person or any number of persons to 
so stand, loiter or walk upon any , . . sidewalk in the City 
as to obstruct free passage over, on or along said . . . side­
walk” (emphasis added) is too vague and overbroad to meet 
First-Fourteenth Amendment demands.

IV.

Petitioner’s Conviction for Violation of §1231 Is Sup­
ported by No Evidence.

If construed as broadly as it is written, Birmingham Code 
§1231, making it “ unlawful for any person to refuse or 
fail to comply with any lawful order, signal or direction of 
a police officer,” would be objectionable for the reasons 
stated at pp. 14-15 supra. The Alabama Court of Appeals,

facts of Tinsley, was any colorable First Amendment claim pre­
sented. Compare note 15 supra. Tinsley put her contentions simply 
on a right of personal liberty to move about the streets, a right 
of the sort given expression in Pinkerton v. Verlerg, 78 Mich. 573, 
44 N. W. 579 (1889), quoted in her jurisdictional statement at 
p. 9, n. 4. But it is settled that the standards of permissible 
vagueness are uniquely stringent where a challenged regulation 
touches the freedoms of expression protected by the First Amend­
ment as incorporated in the Fourteenth. Compare N.A.A.C.P. v. 
Button, 371 U. S. 415, 432 (1963), and authorities cited, with 

1 United States v. National Dairy Prods. Co., 372 U. S. 29, 36 (1963).



30

however, has put a quite narrow construction on the sec­
tion. Reversing the conviction of petitioner’s co-defendant 
below, that court said of §1231:

. . . This section appears in the chapter regulating 
vehicular traffic, and provides for the enforcement of 
the orders of the officers of the police department in 
directing such traffic. There is no suggestion in the 
evidence that the defendant violated any traffic regula­
tion of the city by his refusal to move away from Shut- 
tlesworth when ordered to do so. (Phifer v. City of 
Birmingham, 42 Ala. App. 282, 160 So. 2d 898, 901 
(1963), cert, denied, 160 So. 2d 902 (Ala. 1964).)

Nor is there any evidence in the present case that peti­
tioner Shuttlesworth violated any vehicular traffic regula­
tion. Thus-—unless the Alabama Court of Appeals is per­
mitted, Alice-like and in blatant violation of due process of 
law—to change the meaning of the State’s penal statutes 
case by case, petitioner’s conviction under §1231 is entirely 
lacking in evidentiary support. Thompson v. City of Louis­
ville, 362 U. S. 199 (1960); Garner v. Louisiana, 368 U. S. 
157 (1961); Taylor v. Louisiana, 370 U. S. 154 (1962); 
Fields v. Fairfield, 375 U. S. 248 (1963); Barr v. City of 
Columbia, 378 U. S. 146 (1964).



31

CONCLUSION

The judgment of the Alabama Court of Appeals affirm­
ing petitioner’s conviction should be reversed.

Bespectfully submitted,

J ack Greenberg 
J ames M. Nabrxt, III 
Norman C. A maker 

10 Columbus Circle 
New York, New York 10019

Peter A. H all 
Orzell B illingsley, Jr.

1630 Fourth Avenue North 
Birmingham, Alabama

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Petitioner



38