Wright v. Virginia Petition for Writ of Certiorari

    I n th e

Supreme (tort ni %  luttefc BUUb
O ctober T er m , 1972 

No. 72-......................

S teven  W ise W right  and 
Clarence E dward W r ig h t , J r .,

Petitioners,

v.

V irginia

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF VIRGINIA

S am uel  W. T ucker

H il l , T u cker  & M arsh  
214 East Clay Street 
Richmond, Virginia 23219 

Attorney for Petitioners



I N D E X

P A G E

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

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

Questions Presented.............................................   2

Constitutional and Statutory Provisions Involved.......  3

Statement .......        4

Statement of Facts .............................................................. 5

How the Federal Questions Were Raised and Decided 
Below ............................        7

Reasons for Granting the Writ ............. ................. .........  15

Conclusion ...........................................................................  19

Appendix .............................................................................  la

T able oe Cases :

Ashton v. Kentucky, 384 U.S. 195 (1966) ...................15,17

Bachellar v. Maryland, 397 U.S. 564 (1970) .......... .......  17
Banks v. Bradley, 192 Ya. 598, 66 S.E.2d 526 (1951) .... 19

Cantwell v. Connecticut, 310 U.S. 296 (1940) ............... 15
Coates v. Cincinnati, 402 U.S. 611 (1971) ......................  18
Colten v. Kentucky, 407 U.S. 104 (1972)  .................... 4,16
Connally v. General Construction Co., 269 U.S. 385 

(1926) ....................................................    15

Gooding v. Wilson, 405 U.S. 518 (1972) ...............8, 15,16,17



P A G E

Hackney v. Commonwealth, 186 Ya. 888, 45 S.E.2d 241
(1947) ....................... ...................................................... 17,18

Lanzetta v. Hew Jersey, 306 U.S. 451 (1939) .......15,16,17

Mitchell v. Commonwealth, 140 Va. 572, 125 S.E. 311
(1924) ...... ....... ........ ...................... ......... .......... ............ . 19

Muscoe v. Commonwealth, 86 Ya. 443, 108 S.E. 534 
(1890) .....     19

Shuttlesworth v. Birmingham, 382 U.S. 87 (1965) ....... 18

Taylor v. Commonwealth, 187 Va. 214, 46 S.E.2d 384
(1948) ....................            17

Thompson v. City of Louisville, 362 U.S. 199 (1960) ..8,17,18

United States v. Moore, 332 F.Supp. 919 (E.D. Ya. 
1971) ..............    19

Statutes:

Code of Virginia §§ 18.1-253.2 and 18.1-310................... 3

11



I n  THE

(Emtrt at tljp lintel Stairs
O ctober T erm , 1972 

No. 72-....... ......... .

S teven W ise W right and 
Clarence E dward W rig h t , J r .,

Petitioners, 
v.

V irginia

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF VIRGINIA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of Virginia entered in 
the above-entitled case on March 8, 1973.

Opinions Below

The oral opinion of the trial court denying petitioners’ 
motion to dismiss the warrants is unreported and is set 
out in the Appendix, pp. la-6a. The order of the Supreme 
Court of Virginia denying a petition for writ of error is 
unreported and is set out in the Appendix, p. 7a. The order 
of the Supreme Court of Virginia, dated March 8, 1973, 
denying a petition for rehearing is unreported and is set 
out in the Appendix, p. 8a.



2

Jurisdiction

The judgment of the Supreme Court of Virginia denying 
a petition for rehearing on its denial of the petition for 
writ of error was entered on March 8, 1973. The jurisdic­
tion of this Court is invoked pursuant to 28 U.S.C. § 1257(3) 
petitioners having asserted below and asserting here depri­
vation of rights secured by the Constitution of the United 
States.

Questions Presented

1) Is the Virginia disorderly conduct statute on its face 
and as applied in this case unconstitutionally overbroad 
and vague, in violation of the Fourteenth Amendment?

2) Was petitioner Steven Wright denied his rights under 
the First and Fourteenth Amendments of the Constitution 
in that he was convicted of the crime of disorderly conduct 
on evidence showing that at most he argued with a police­
man and refused to be quiet when that policeman was ques­
tioning another person as to the reason for a disturbance?

3) Was the petitioner Steven Wright denied his right to 
due process under the Fourteenth Amendment to the Con­
stitution in that there is no evidence presented that would 
support a conviction for disorderly conduct under the laws 
of Virginia?

4) If the initial arrest of petitioner Steven Wright for 
disorderly conduct was illegal, was it a denial of due proc­
ess to convict petitioners Steven Wright for resisting ar­
rest and Clarence Wright for assault and battery and re­
sisting arrest for actions that occurred solely because of 
that illegal arrest?



3

Constitutional and Statutory Provisions Involved

This case involves the First and Fourteenth Amendments 
of the Constitution of the United States, which provide in 
pertinent part :

Congress shall make no law . . . abridging the free­
dom of speech . . .  or the right of the people . . .  to 
petition the government for a redress of grievances;

No State shall. . . deprive any person of life, liberty 
or property, without due process of law . . . .

This case also involves the following provisions of the 
Code of Virginia:

§ 18.1-253.2. Disorderly conduct in other public 
places; power of counties, cities and towns to adopt 
ordinances and resolutions.—If any person behaves in 
a riotous or disorderly manner in any street, highway, 
public building, or any other public place, other than 
those mentioned in the preceding section (§ 18.1-253.1), 
or causes any unnecessary disturbance in or on any 
public conveyance, by running through it, climbing 
through windows or upon the seats, failing to move to 
another seat when lawfully requested to so move by the 
operator, or otherwise annoying passengers or em­
ployees therein, he shall be guilty of a misdemeanor.

Cities, towns and counties are hereby authorized and 
empowered to adopt ordinances or resolutions prohibit­
ing and punishing the above acts, or any of them, when 
committed in such cities, towns, or counties, and such 
ordinances or resolutions shall provide the same pun­
ishment for a violation thereof as is provided by this 
section, anything in the charters of such cities or towns 
to the contrary notwithstanding. All fines imposed for 
the violation of such ordinances or resolutions shall be



4

paid to and retained by such cities, towns and counties, 
and the Commonwealth shall not be chargeable with 
any costs in connection with any prosecution for the 
violation of any such ordinances or resolutions. (Code 
1950, § 18-131; Code 1950 (Repl. Vol. 1960), § 18.1-254; 
1950, p. 36; 1960, c. 358; 1969, Ex. Sess., c. 2.)

§ 18.1-310. Obstructing justice by threats or force.— 
If any person, by threats, or force, attempt to intimi­
date or impede a judge, justice, juror, witness, or an 
officer of a court, or any sergeant or other peace officer, 
or any revenue officer, in the discharge of his duty, or 
to obstruct or impede the administration of justice in 
any court, he shall be deemed to be guilty of a mis­
demeanor. (Code 1950, §-18-272; 1960, c. 358.)

Statement

Petitioners Steven Wise Wright and Clarence Edward 
Wright, Jr., were charged with a number of violations of 
Virginia statutes and ordinances of the County of Albe­
marle, all arising out of an incident occurring on No­
vember 19, 1970. They were initially charged by warrants 
and tried in county court and convicted of several offenses 
by that court sitting without a jury. Pursuant to Virginia 
law, they noted appeals to the Circuit Court of the County 
of Albermarle and were given a trial de novo as to all 
pending charges on June 21, 1972.1 * By agreement of the 
defendants, the trial was to the court sitting without a 
jury.

Steven Wright was charged under warrants for dis­
orderly conduct and resisting arrest in violation of

1 Under Virginia law, which is similarly to that in a number of
other states, see Gotten v. Kentucky, 407 TJ.S. 104 (1972), the effeet 
of the appeal and trial de novo was to eliminate any record of the 
prior conviction. Thus, the entire record in this case is based on 
the one made at the trial de novo in the Circuit Court.



5

§§ 18.1-253 and 18.1-310 of the Code of Virginia.2 Clar­
ence Wright was also charged with disorderly conduct 
and with common law assault and battery on a police 
officer and resisting arrest.

Steven Wright was convicted and sentenced on the 
charge of disorderly conduct and ordered to pay a fine 
of $50.00 and, costs. He was convicted of the charge of 
resisting arrest and was sentenced to confinement in jail 
for 30 days; the sentence was suspended and he was put 
on probation for a period of 12 months and ordered to 
pay a fine of $50.00 and costs. Clarence Wright was con­
victed of both resisting arrest and assault and battery 
on a police officer and was sentenced to serve 30 days in 
jail and to pay a fine of $50.00 and costs on both counts.8

The execution of all judgments was suspended to allow 
a petition for writ of error to be filed in the Supreme 
Court of Virginia.4 The petition for writ of error was 
denied by the Supreme Court of Virginia on February 
2, 1973, as was a petition for rehearing on March 8, 
1973, occasioning this petition for writ of certiorari.

Statement o f  Facts

The incident that gave rise to the charges against both 
petitioners arose out of an altercation between the two 
and the management of a nightclub located in Albermarle

_2 Two other charges for assault involving another person were 
dismissed at the end of the state’s case on the basis that no evidence 
whatsoever had been introduced in their support.

, 3 The disorderly conduct charge against Clarence Wright was 
dismissed on the ground that it was incorporated into the charge 
of assault and battery.

4 By agreement, the execution of the sentences has been further 
postponed pending the disposition of this petition for writ of cer­
tiorari.



6

County, Virginia. The altercation began inside the club 
and continued after the two petitioners and their com­
panions had been ejected from it (Tr. 57-60).5 At this 
point members of the sheriff’s department of Albemarle 
County arrived on the scene and observed a group of 
persons variously estimated as between 15 and 30 stand­
ing in front of the club (Tr. 2-3, 12).

One of the officers, deputy sheriff Guthrie, left his car 
and approached the scene. He saw the manager of the 
club, Mr. Kessler, engaged in an argument with peti­
tioner Steven Wright (Tr. 3). The officer began talking 
to Mr. Kessler, asking 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-waiving and that he spoke loudly (Tr. 
3-4).6 The officer warned him not to interrupt again or 
he would be arrested for disorderly conduct (Tr. 3, 5).

Petitioner Steven Wright again interrupted and was 
warned again. On the third interruption Sheriff Guthrie 
told him that he was under arrest for disorderly conduct 
and caught him by the arm (Tr. 3-4). Petitioner Wright 
pulled his arm away and jerked it back, although he did 
not put his hand into a fist (Tr. 5, 13). The officer struck 
him on the side of his head with a small billy club (Tr. 5). 
At that point Clarence Wright, Steven Wright’s brother, 
jumped on the officer’s back (Tr. 6). Two other officers 
helped subdue Clarence Wright and in the process struck

5 Citations are to the Transcript of Testimony filed in the Su­
preme Court of Virginia.

6 The officer also testified that petitioner had “cursed.” When 
he was unable to remember the words used, the court struck that 
testimony and did not consider it in finding Steven Wright guilty



7

him on the back of the head with a nightstick (Tr. 18,
22).7

How the Federal Questions Were 
Raised and Decided Below

At the close of state’s evidence counsel for petitioners 
moved to strike the evidence as to the warrants and to 
dismiss the charges. It was contended that the evidence 
failed to show any violation of the disorderly conduct 
statute and that, moreover:

. . .  [I] f the statute is so construed as to embrace 
any other conduct that occurred prior to a physical 
touching between 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 of disorderly conduct was 
speech that was protected by the First Amendment. 
Therefore, if the statute under which the disorderly con­
duct charge was brought was construed to cover such 
speech, then the statute would be void as being vague

7 The facts as stated above are presented in the light most favor­
able to the state. Petitioners gave an entirely different story. They 
and their companions testified that it was Clarence Wright who 
attempted to give his side of the dispute. Steven W right was in a 
dazed state because he had been struck over the head earlier inside 
the nightclub. Sheriff Guthrie responded by saying to Clarence 
to be quiet “boy.” When Clarence W right protested the epithet, 
he was then told to be quiet or he would be arrested. Steven Wright 
then stated that he was going to tuck his shirt in, at which point 
the deputy sheriff struck him on the side of his head with a billy- 
club. Clarence W right denied that he assaulted the officer but 
rather testified that he was standing with his back towards the 
deputies attempting to hold his brother up when he was struck 
on the back of the head himself and placed under arrest.



8

and overbroad, in violation of the First and Fourteenth 
Amendments (Tr. 28-29). It was further pointed out that 
the language of the ordinance itself was vague and there­
fore unconstitutional on its face, in violation of the Four­
teenth Amendment (Tr. 28-29). In argument, 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 fur­
ther 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. la-6a).

These same points were raised in the Assignments of 
Error filed with the Notices of Appeal to the Supreme 
Court of the State of Virginia in the following language:

(Steven Wright—No. 2419,8 disorderly conduct)

1. The judgment is contrary to the law and evi­
dence; there having been no showing of a violation 
of Section 18.1-253.2 of the Code of Virginia or of 
any other law.

2. In ruling that the statute proscribed the speech 
or related conduct of the defendant with the definite­
ness and specificity required in the area of First 
Amendment freedoms, the court deprives persons, in­
cluding the defendant, of liberty without due process 
of law, in violation of the Fourteenth Amendment to 
the Constitution of the United States.

3. In ruling that the speech or related conduct of 
the defendant, as shown by the evidence, was fairly

8 Citations are to the indictment numbers referred to in the order 
of the Supreme Court of Virginia under which the notices of appeal 
were filed (App. p. 7a).



9

proscribed by statute, the court has deprived the de­
fendant of liberty and property without due process of 
law, in violation of Sections 8 and 11 of Article I (Bill 
of Rights) of the Constitution of Virginia and in viola­
tion of the Fourteenth Amendment to the Constitution 
of the United States.

4. In ruling that without warrant of statute an of­
ficer may require a person to refrain from speaking 
under penalty of arrest and prosecution for dis­
orderly conduct, the court has denied rights of free 
speech and rights of petition secured by Section 12 of 
Article I (Bill of Rights) of the Constitution of Vir­
ginia and by the First and Fourteenth Amendments to 
the Constitution of the United States and, moreover, 
the court has thereby permitted peace officers to as­
sume legislative and judicial prerogatives, in violation 
of the doctrine of separation of powers expressed in 
Section 4 of the Article I (Bill of Rights) of the Con­
stitution of Virginia and in violation of the due process 
requirements of Sections 8 and 11 of Article I (Bill of 
Rights) of the Constitution of Virginia and the Four­
teenth Amendment to the Constitution of the United 
States.

(Steven Wright—No. 2414, resisting arrest)

1. The judgment is contrary to the law and the evi­
dence ; there having been no showing that the defendant 
by threats or force attempted to intimidate or impede 
any officer in the discharge of his duty or that the de­
fendant otherwise violated Section 18.1-310 of the Code 
of Virginia or any other law.

2. The court erred in rejecting the defense that the 
pretended arrest for disorderly conduct was unlawful ; 
no violation of Section 18.1-253.2 of the Code of Vir­



10

ginia or of any other law having been committed in the 
presence of the sheriff’s deputy and no warrant for 
such arrest having been issued.

3. The court erred in rejecting the defense that the 
pretended arrest was attempted solely because the de­
fendant made and persisted in making denials, counter 
accusations and other utterances, none of which were 
proscribed by any statute with the definiteness and 
specificity required by the First and Fourteenth 
Amendments to the Constitution of the United States.

4. The court erred in rejecting the defense that the 
sheriff’s deputy had unlawfully sought to arrest the 
defendant solely because he made and persisted in 
making denials and counter accusations and other ut­
terances and otherwise annoyed the sheriff’s deputy, 
none of which utterances or annoyances was fairly 
proscribed by statute conformably with the due process 
provisions of Sections 8 and 11 of Article I (Bill of 
Rights) of the Constitution of Virginia and with the 
due process clause of the Fourteenth Amendment to the 
Constitution of the United States.

5. The court erred in rejecting the defense that the 
pretended arrest was an unwarranted attack upon the 
defendant made solely because he failed to heed the 
sheriff’s deputy’s requirement that he refrain from 
speaking, under1 penalty of arrest and prosecution; 
whereby the court denied the right of free speech and 
the right of petition secured by Section 12 of Article I 
(Bill of Rights) of the Constitution of Virginia and by 
the First and Fourteenth Amendments to the Constitu­
tion of the United States and, moreover, the court has 
thereby permitted peace officers to assume legislative 
and judicial prerogatives in violation of the doctrine



11

of separation of powers expressed in Section 4 of Arti­
cle I (Bill of Rights) of the Constitution of Virginia 
and in violation of the due process requirements of 
Sections 8 and 11 of Article I (Bill of Rights) of the 
Constitution of Virginia and of the Fourteenth Amend­
ment to the Constitution of the United States.

(Clarence Wright—No. 2415 resisting arrest)

1. The court erred in rejecting the defense that the 
encounter with the sheriff’s deputies for which they 
sought to arrest the defendant commenced with and 
grew out of his justifiable act to repel an unwarranted 
attack upon the defendant’s brother whom the sheriff’s 
deputy unlawfully sought to arrest on a pretended 
charge of disorderly conduct, there having been no 
violation of Section 18.1-253.2 of the Code of Virginia 
or of any other law.

2. The court erred in rejecting the defense that the 
encounter with the sheriff’s deputies for which they 
sought to arrest the defendant commenced with and 
grew out of his justifiable act to repel an unwarranted 
attack on the defendant’s brother whom the sheriff’s 
deputy had unlawfully sought to arrest solely because 
he made and persisted in making denials, counter accu­
sations and other utterances, none of which were pro­
scribed by any statute with the definiteness and spec­
ificity required by the First and Fourteenth Amend­
ments to the Constitution of the United States.

3. The court erred in rejecting the defense that the 
encounter with the sheriff’s deputies for which they 
sought to arrest the defendant commenced with and 
grew out of his justifiable act to repel an unwarranted 
attack upon the defendant’s brother whom the sheriff’s 
deputy had unlawfully sought to arrest solely because 
he made and persisted in making denials and counter



12

accusations and other utterances and otherwise an­
noyed the sheriff’s deputy, none of which utterances 
or annoyances was fairly proscribed by statute con­
formably with the due process provisions of Sections 8 
and 11 of Article I (Bill of Bights) of the Constitution 
of Virginia and with the due process clause of the 
Fourteenth Amendment to the Constitution of the 
United States.

4. The court erred in rejecting the defense that the 
encounter with the sheriff’s deputies for which they 
sought to arrest the defendant commenced with and 
grew out of his justifiable act to repel an unwarranted 
attack upon the defendant’s brother whom the sheriff’s 
deputy had unlawfully sought to arrest solely because 
he failed to heed said deputy’s requirement that he re­
frain from speaking, under penalty of arrest and prose­
cution; whereby the court denied the right of free 
speech and the right of petition secured by Section 12 
of Article I (Bill of Rights) of the Constitution of 
Virginia and by the First and Fourteenth Amendments 
to the Constitution of the United States and, moreover, 
the court has thereby permitted peace officers to assume 
legislative and judicial prerogatives in violation of the 
doctrine of separation of powers expressed in Section 
4 of Article I (Bill of Rights) of the Constitution of 
Virginia and in violation of the due process require­
ments of Sections 8 and 11 of Article I (Bill of Rights) 
of the Constitution of Virginia and of the Fourteenth 
Amendment to the Constitution of the United States.

(Clarence Wright—No. 2417 assault and battery)

1. The court erred in rejecting the defense that the 
alleged assault and battery was a justifiable act to re­
pel an unwarranted attack upon the defendant’s brother 
whom the sheriff’s deputy unlawfully sought to arrest



13

on a pretended charge of disorderly conduct, there hav­
ing been no violation of Section 18.1-253.2 of the Code 
of Virginia or of any other law.

2. The court erred in rejecting the defense that the 
alleged assault and battery was a justifiable act to repel 
an unwarranted attack on the defendant’s brother 
whom the sheriff’s deputy had unlawfully sought to 
arrest solely because he made and persisted in making 
denials, counter accusations and other utterances, none 
of which were proscribed by any statute with the 
definiteness and specificity required by the First and 
Fourteenth Amendments to the Constitution of the 
United States.

3. The court erred in rejecting the defense that the 
alleged assault and battery was a justifiable act to 
repel an unwarranted attack upon the defendant’s 
brother whom the sheriff’s deputy had unlawfully 
sought to arrest solely because he made and persisted 
in making denials and counter accusations and other 
utterances and otherwise annoyed the sheriff’s deputy, 
none of which utterances or annoyances was fairly pro­
scribed by statute conformably with the due process 
provisions of Sections 8 and 11 of Article I (Bill of 
Rights) of the Constitution of Virginia and with the 
due process clause of the Fourteenth Amendment to 
the Constitution of the United States.

4. The court erred in rejecting the defense that the 
alleged assault and battery was a justifiable act to 
repel an unwarranted attack upon the defendant’s 
brother whom the sheriff’s deputy had unlawfully 
sought to arrest solely because he failed to heed said 
deputy’s requirement that he refrain from speaking, 
under penalty of arrest and prosecution; whereby the 
court denied the right of free speech and the right of



14

petition secured by Section 12 of Article I (Bill of 
Rights) of the Constitution of Virginia and by the 
First and Fourteenth Amendments to the Constitution 
of the United States and, moreover, the court has 
thereby permitted peace officers to assume legislative 
and judicial prerogatives in violation of the doctrine 
of separation of powers expressed in. Section 4 of 
Article I (Bill of Rights) of the Constitution of Vir­
ginia and in violation of the due process requirements 
of Sections 8 and 11 of Article I (Bill of Rights) of the 
Constitution of Virginia and of the Fourteenth Amend­
ment to the Constitution of the United States.

All issues so raised by the Assignments of Error were 
briefed at length in the petition for writ of error. In deny­
ing the petition, the Supreme Court of Virginia stated:

The petition . . . having been maturely considered 
and transcripts . . . seen and inspected, the court being 
of opinion that there is no reversible error in the 
judgments complained 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 judg­
ments of the said circuit court. (A. p. 7a.)

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 
same claims.



15

REASONS FOR GRANTING THE WRIT

The Decision Below Conflicts With Decisions o f  This 
Court Holding That Penal Statutes That are Vague and 
Overbroad Cannot Support a Criminal Conviction and 
That a Conviction Based on No Evidence o f  the Crime 
Charged Violates Due Process.

1. A long line of decisions by this Court have held that:

[A] statute which either forbids or requires the doing 
of an act in terms so vague that men of common intel­
ligence must necessarily guess at its meaning and differ 
as to its application violates the first essential of due 
process of law. Connolly v. General Construction Com­
pany, 269 U.S. 385, 391 (1926).

See also Lanzetta v. New Jersey, 306 U.S. 451 (1939); 
Cantwell v. Connecticut, 310 U.S. 296 (1940); Ashton v. 
Kentucky, 384 U.S. 195 (1966); Gooding v. Wilson, 405 U.S. 
518 (1972).

Many of these decisions dealt with statutes or common 
law crimes similar to the Virginia disorderly conduct stat­
ute involved here. Thus, in Ashton v. Kentucky, supra, this 
Court struck down a conviction for common law libel which 
made illegal a writing calculated “to create disturbances of 
the peace.” In Cantwell v. Connecticut, supra, the common 
law crime of “ inciting of a breach of the peace” was simi­
larly held unconstitutionally vague, and in Gooding v. 
Wilson, supra, a Georgia statute which prohibited the use 
of “ opprobrious words or abusive language, tending to 
cause a breach of the peace” was also held vague and 
indefinite.

Petitioners urge that the present case falls squarely 
within the rule of law established by the above decisions.



16

Just as in Lanzetta v. New Jersey, supra, “ the terms 
[the statute] employs to indicate what it purports to 
denounce are so vague, indefinite and uncertain that it 
must be condemned as repugnant to the due process clause 
of the Fourteenth Amendment.” 306 U.S. at 458.

Here, the evidence established only that Steven Wright 
had attempted to tell a sheriff’s deputy his version of a 
dispute that was being investigated. In doing so, he did 
raise his voice and apparently gestured with his hands. 
The trial court held that such acts constituted “disorderly 
conduct” even though the term was in no way defined by 
the statute to include such actions.9 Thus, the issue in 
this case is not whether the State of Virginia could pro­
scribe the acts of the defendant by means of a specific 
statute outlawing the refusal to obey a police officer’s 
order to be quiet while he was investigating a disturbance. 
Of course, the fact that a narrowly drawn statute might 
be valid as applied to petitioner’s acts does not prevent 
his raising the defense that the statute is vague or over­
broad. Gooding v. Wilson, supra.10

Further, this is not a case in which, prior to petitioner’s 
prosecution, the state courts had given a narrow construc­

9 Therefore, this case is in sharp contrast with Colten v. Ken­
tucky, 407 U.S. 104 (1972). There the petitioner had argued with 
a police officer and had refused to return to his car and move on 
when ordered to do so. He was convicted under a disorderly con­
duct statute that specifically and clearly made illegal such acts 
by its own terms. Because the statute itself defined as criminal the 
activities engaged in by the petitioner, this Court held that it was 
not void for vagueness.

10 In Gooding, the evidence showed the use of insulting and 
threatening words that could have been prohibited by a statute 
that was narrowly drawn or construed as reaching “fighting words.” 
Since the statute was not so limited, the defendant could raise its 
vagueness and overbreadth. Here, the evidence does not show that 
the words were insulting or threatening, but only that petitioner 
Steven Wright was attempting to give his side of the dispute.



17

tion to the words of the statute so as to make it clear 
that it encompasses his acts.11 Just as in Gooding, the 
few decisions of the Virginia court interpreting the dis­
orderly conduct statute made “ ‘no meaningful attempt . . . 
to limit or properly define [its] terms.’ ” 405 U.S. at 524. 
In Taylor v. Commonwealth, 187 Va. 214, 46 S.E.2d 384 
(1948), the Virginia Supreme Court in interpreting that 
part of the disorderly conduct statute dealing with creat­
ing a disturbance on a public conveyance merely held that 
the refusal of a black passenger to obey a bus driver’s 
order to move to the back of the bus did not constitute a 
violation of the statute. The only other case interpreting 
the statute, Hackney v. Commonwealth, 186 Va. 888, 45
S.E.2d 241 (1947), if anything, broadened its scope by 
holding that a person violated its provisions outlawing 
disorderly behavior on a public highway by shouting loud 
and abusive remarks from his front porch. The decision 
did not attempt to precisely define what kind of words 
constituted disorderly conduct, and certainly did not nar­
rowly restrict the statute’s reach to “fighting words.”

Indeed this Court has already indicated that a statute 
that purports to outlaw arguing with a policeman as “dis­
orderly conduct” is impermissibly broad and, vague. 
Thompson v. Louisville, 362 U.S. 199, 206 (1960), citing 
Lametta v. New Jersey, supra. Thus, the vice of the 
Virginia disorderly conduct statute is precisely that con­
demned in cases such as Ashton v. Kentucky, supra; that 
is, the term “behave in a disorderly manner” is so open- 
ended and so undefined as to allow police officers to en­
force it at a whim against activities that may come within 
the protection of the Fourteenth Amendment. Here, of

11 Compare, Bachellar v. Maryland, 397 U.S. 564 (1970), where 
the state courts had, prior to the prosecution at issue, interpreted 
a broadly worded disorderly conduct statute to include the refusal 
to obey a policeman’s order to move on when to disobey might 
endanger the public peace.



18

course, petitioner was engaged in the exercise of free­
dom of speech and petition in attempting to present his 
side of a dispute to an officer of the law. Again, whether 
his conduct might properly be punished under a narrowly 
drawn statute is not at issue. It is enough under the 
decisions of this Court that the statute “ subjects the 
exercise of the right [of speech and petition] to an un- 
ascertainable standard.” Coates v. Cincinnati, 402 U.S. 
611, 614 (1971). By imposing such discretion upon a 
police officer to place under arrest a person engaged in 
activities which are related to protected freedoms allows 
him on the spot to make decisions that can arbitrarily and 
unconstitutionally interfere with those liberties. See 
Shuttlesworth v. Birmingham, 382 U.S. 87 (1965).

2. In the alternative, if, as in Thompson v. Louisville, 
supra, it is assumed that “merely ‘arguing’ with a police­
man is not, because it could not be, ‘disorderly conduct’ 
as a matter of the substantive law of [Virginia],” then 
the conviction of Steven Wright also cannot stand. Thomp­
son, of course, held that a conviction based on no evidence 
showing- the commission of a crime as defined by state law 
violates the due process clause. T’o the extent the dis­
orderly conduct statute has been defined at all, it reaches 
abusive and vile speech. See Hackney v. Commonwealth, 
supra. Since no evidence was introduced below as to what 
petitioner Wright said, there is not even any basis for a 
conviction under the dubious rule of that case. See also, 
Shuttlesworth v. Birmingham, supra.

3. Finally, since the conviction of Steven Wright must 
be reversed on the ground that there was no basis for 
his initial arrest by the officer, then the other convictions 
should be remanded to the Virginia courts. It is well es­
tablished in Virginia law that an illegal arrest may be



19

resisted by reasonable means (Muscoe v. Commonwealth, 
86 Va. 443, 448-9, 108 S.E. 534 (1890); Banks v. Bradley, 
192 Va. 598, 603, 66 S.E.2d 526 (1951)), not only by the 
person arrested but by persons in close relationship of 
affinity or consanguinity. 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).

CONCLUSION

For the foregoing reasons, the petition for writ o f 
certiorari should be granted and the decision o f  the 
court below reversed.

Respectfully submitted,

S am uel  W . T uckeb

H il l , T ucker & M arsh 
214 East Clay Street 
Richmond, Virginia 23219 

Attorney for Petitioners



APPENDIX



la

A P P E N D I X

Order o f  the Circuit Court of the County of Albemarle 
Dated June 21, 1972

Court: Now I ’m referring to ease 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 apparently milling around outside 
according to the testimony of the officers when they ar­
rived in three separate police cars. Then the Chief 
Investigating- Officer at that time was undertaking to 
make his investigation and his testimony 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—after being asked by the officer. He inter­
rupted the second time by—not only by his loud voice 
but the gestures and position in which he placed himself 
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



2a

officer and the owner or the person who apparently was 
in charge of the establishment and who had made a com­
plaint 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 of recreation and amusement. 
Finding himself in that position 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 authority 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 disturbance at a public place 
and then reacts to this situation the "way he did, it seems to 
me that he was reasonable in undertaking to place Mr. 
Wright under arrest rather than knocking him aside be­
cause 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 disturbance 
at a public place, 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 
conduct 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

Order of the Circuit Court of the County of Albemarle
Dated June 21, 1972



3a

of all these, if you’d like to. Now on the case of Clar­
ence Edward Wright, I don’t find the evidence that would 
justify finding Clarence Edward Wright guilty of dis­
orderly conduct at the time his brother, Stephen Wise 
Wright, was arrested. If his conduct 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 dis­
orderly conduct in a public place which is 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 Clar­
ence Edward Wright Jr. jumped on Officer Guthrie from 
behind, and he was pulled off by another officer and sub­
dued 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

Order of the Circuit Court of the County of Albemarle
Dated June 21, 1972



4a

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 dis­
orderly 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 per­
son can know from the statute what is proscribed and I 
submit that the statute here, Section 18.1-253.2 has noth­
ing in it that puts a person on notice that his protestaion 
or even what’s been described as stepping forward and 
stepping back is a violation of law. I think the statute 
does not give warning that this kind of conduct is pro­
hibited so I just submit that as an additional due process 
ground in addition to the 1st Amendment 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 in­
creasingly 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 
correct 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 
meaning 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

Order of the Circuit Court of the County of Albemarle
Dated June 21, 1972



5a

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 designed 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 pass the point of being understandable to the gen­
eral public and the word “disorderly” in my opinion car­
ries 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 wdiat public disorder is, resisting arrest and 
everything else combined, I suppose they wall 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 in roads 
made on it. The motions are denied on the grounds indi­
cated and an officer seems to me, whether his conviction

Order of the Circuit Court of the County of Albemarle
Dated June 21, 1972



6a

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.

Order of the Circuit Court of the County of Albemarle
Dated June 21, 1972



7a

Order o f  the Supreme Court o f  Virginia 
Dated February 2, 1973,

Denying Petitions for Writs o f  Error

V irginia  :

In the Supreme Court of Virginia held at the Supreme 
Court Building in the City of Bichmond 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 circuit court.

A Copy,

Teste:

Howard G. Turner, Clerk



8a

Order o f  the Supreme Court o f  Virginia 
Dated March 8, 1973,

Denying Petition for Rehearing

V irginia  :

In the Supreme Court of Virginia held at the Supreme 
Court Building in the City of Richmond on Thursday the 
8th day of March, 1973.

(Indictment Nos. 2414, 2416, 2417 and 2419) 
Record No. R-14525

Clarence E dward W righ t , J r ., and 
S teven W ise W right,

Plaintiffs in error,
against

C om m onw ealth  of V irginia ,

Defendant in error.

U pon a P etition  to R ehear

On mature consideration of the petition of the plaintiffs 
in error to set aside the judgment rendered herein on the 
2nd day of February, 1973, and grant a rehearing thereof, 
the prayer of the said petition is denied.

A  Copy,

Teste:

H. Turner, Clerk



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