People of Illinois v. Raby Brief in Opposition to Granting of Petition for Certiorari

    Supreme Court of the United States
October T eem , 1968

I N  T H E

No. 863

THE PEOPLE OF THE STATE OF ILLINOIS,
Respondent,

vs.
.ALBERT A. RABY,

Petitioner.

BRIEF IN OPPOSITION TO GRANTING 
OF PETITION FOR CERTIORARI

EDWARD V. HANRAHAN,
State’s Attorney,
County of Cook,
Room 500 — Civic Center,
Chicago, Illinois 60602,

Attorney for Respondent.

E im e r  C. K issane,
J ames S. V eudman,

Assistant State’s Attorneys,
Of Gownsel.

Keenan P rinting Company



I N D E X
PAGE

Constitutional and Statutory Provisions......................  1-3
Reasons Why The Writ Should Not Be Granted;

The Statutes In Question Were Properly Interpreted 3-4 
Petitioner’s Conduct Not Protected Under Umbrella

of First Amendment R igh ts................................... 4-7
Clarity and Scope of the Illinois S tatutes............ 7-9
Sufficiency of the Complaints................................... 10-12
Amendment To The List Of Prosecution Witnesses 12-13 
Instructions To The J u r y ..........................................  14

Conclusion....................................................................... 15

C itation- op A uthorities 
Cases

Beauharnais v. Illinois, 343 U.S. 250 (1952)................  8
Cantwell v. Connecticut, 310 U.S. 296 (1940) ............... 6
Cox v. Louisiana, 379 U.S. 536 (1965) .........................  5
Feiner v. New York, 340 U.S. 315 (1951) ....................  6
In Re. Bacon, 240 Cal. App. 2d 34 (1966) ....................  9
Kovacs v. Cooper, 336 U.S. 77 (1949)...........................  6
Landry v. Daley, 280 F. Supp. 938 (N.D. 111. 1968) .. .9,14
People v. Crayton, 284 N.Y.S. 2d 672 (1967) ..............  9
People v. Rabv, 40 111. 2d 392, 240 N.E. 2d 595 (1968)

3-5, 7-8, 11, 13
Pointer v. Texas, 380 U.S. 400 (1965) .........................  13
Poulos v. New Hampshire, 345 U.S. 395 (1953) ..........  5-6



Schneider v. State, 308 U.S. 147 (1939) ........................  6
Smith v. United States, 360 U.S. 1 (1959) ................... 10
United States v. Debrow, 346 U.S. 374 (1953) ............. 10
United States v. Jones, 365 P. 2d 675 (2nd Circuit,

1966) .........................    8
United States v. Kahn, 381 F. 2d 824 (7th Circuit,

1967) , Certiorari Denied, 389 U.S. 1015............... 10
United States v. O’Brien, 391 U.S. 367 (1968) ............. 5
United States v. Woodward, 376 F. 2d 136 (7th Cir­

cuit, 1967) ...................................................................  9
Winters v. New York, 333 U.S. 507 (1946) ................  8

S tatutory P rovisions

Illinois Revised Statutes, 1967, Ch. 38, Sec. 26-l(a)(l) 4,7 
Illinois Revised Statutes, 1967, Ch. 38, Sec. 31-1 . . . .  4,8

M iscellaneous

Kazmin, “Residential Picketing And The First Amend­
ment, 61 N. W. U. L. Rev. 177, 208 (1966) .........  6

11 .



I N  T H E

Supreme Court of the United States
Octobee T eem , 1968

No. 863

THE PEOPLE OF THE STATE OF ILLINOIS,
Respondent,

vs.
ALBERT A. RABY,

Petitioner.

BRIEF IN OPPOSITION TO GRANTING 
OF PETITION FOR CERTIORARI

STATUTES CONSTRUED

111. Rev. Stat. Ch. 38, Sec. 26-1 
Sec.
26-1. Elements of the Offense.

26-1. § 26-1. (Elements of the Offense.) (a) A
person commits disorderly conduct when he know­
ingly:

(1) Hoes any act in such unreasonable manner as 
to alarm or disturb another and to provoke a breach of 
the peace; or



2

(2) With intent to annoy another, makes a tele­
phone call, whether or not conversation thereby ensues; 
or

(3) Transmits in any manner to the fire depart­
ment of any city, town, village or fire protection dis­
trict a false alarm of fire, knowing at the time of sneh 
transmission that there is no reasonable ground for 
believing that such fire exists; or

(4) Transmits in any manner to another a false 
alarm to the effect that a bomb or other explosive of 
any nature is concealed in such place that its ex­
plosion would endanger human life, knowing at the 
time of such transmission that there is no reasonable 
ground for believing that such bomb or explosive is 
concealed in such place; or

(5) Transmit in any manner to any peace officer, 
public officer or public employee a report to the effect 
that an offense has been committed, knowing at the 
time of such transmission that there is no reasonable 
ground for believing that such an offense has been 
committed; or

(6) Enters upon the property of another and for 
a lewd or unlawful purpose deliberately looks into a 
dwelling on the property through any window or other 
opening in it.

(b) Penalty.
A person convicted of a violation of subsection 26- 

1(a) (1) or (a) (2) shall be fined not to exceed $500. 
A. person convicted of a violation of subsection 26- 
1(a) (4), (a) (5) or (a) (6) shall be fined not to 
exceed $500 or imprisoned in a penal institution other 
than the penitentiary not to exceed 6 months, or both. 
A person convicted of a violation of subsection 26-1 (a) 
(3) shall be fined not to exceed $500 or imprisoned in 
a penal institution other than the penitentiary not to 
exceed 6 months, or both, or shall be imprisoned in 
the penitentiary not to exceed 18 months. As amended



3

by act approved June 29, 1967. L.1967, p.----- , H. JB.
No. 633.

111. Rev. Stat. Clx. 38, Sec. 31-1
31-1. § 31-1. Resisting or Obstructing a Peace 

Officer.]. A person who knowingly resists or obstructs 
the performance by one known to the person to be 
a peace officer of any authorized act within his official 
capacity shall be fined not to exceed $500 or im­
prisoned in a penal institution other than the peniten­
tiary not to exceed one year, or both.

REASONS WHY THE WRIT SHOULD NOT BE 
GRANTED.

I .
THE REQUESTED WRIT OF CERTIORARI SHOULD 

NOT ISSUE SINCE THE ILLINOIS SUPREME 
COURT HAS PROPERLY DETERMINED THAT THE 
ILLINOIS DISORDERLY CONDUCT AND RESIST­
ING A PEACE OFFICE STATUTES ARE CONSTI­
TUTIONALLY APPLICABLE TO THE PETITIONER, 
AND SINCE THE CONDUCT INDULGED IN BY HIM 
IS NOT SUCH AS TO COME UNDER THE UM­
BRELLA OF FIRST AMENDMENT PROTECTION.
The petitioner has requested that this Honorable Court 

issue a Writ of Certiorari to the Supreme Court of the 
State of Illinois to review that Court’s decision in the 
case of People of the State of Illinois v. Albert A. Rahy, 
40 111. 2d 392, 240 NE 2d 595 (set forth in the Appendix 
to the Petition for Certiorari). The only questions raised 
by the instant petitioner which even seem to be of true 
constitutional scope are those dealing with the applica­
tion to him of the Illinois Criminal Code provisions dealing



4

with. Resisting a Peace Officer and Disorderly Conduct. 
111. Rev. Stats., ch. 38 §26-l(a)(l), and III. Rev. Stats., 
ch. 38, §31-1. However, a reading of the well reasoned 
opinion of Mr. Justice Walter Y. Schaefer, of the Illinois 
Supreme Court shows that that Court properly determined 
all of the issues presented to it and that there is nothing 
here which would warrant the issuance of the Writ of 
Certiorari which the petitioner has requested. United 
States Supreme Court Rule 19.1 specifically states that the 
granting of such a writ is not a matter of right but rather 
an exercise of the soundest judicial discretion. It is readily 
apparent from an examination of the opinion of the Su­
preme Court of Illinois that that Court has not decided 
any issue not many times previously determined by this 
Honorable Court, and that there is nothing in the opinion 
which might in any sense be in possible conflict with the 
past pronouncements of either this Court or of any of the 
United States District Courts.

Furthermore, it must be noted at the outset that the 
type of conduct indulged in by the instant petitioner is 
not such as falls under the umbrella of protection offered 
by the First and Fourteenth Amendments to the United 
States Constitution so that all of his claims of constitu­
tional deprivation are completely without foundation.

A.
THE CONDUCT OP THE PETITIONER

The facts in the instant case were not in dispute and 
showed that on the evening of June 28, 1965, during the 
height of the “rush hour” traffic situation in the City of 
Chicago, the petitioner and a number of companions sat 
or laid down in the downtown intersection of La Salle 
and Randolph Streets (40 111. 2d 392, 394). They com­



pletely blocked the passage of traffic through this inter­
section and after some 20 minutes the police demanded 
they get up and be on their way. The petitioner, among 
others, refused to leave, “went limp”, and had to be car­
ried from the intersection by members of the Chicago 
Police Department (see Appendix to Petition For Cer­
tiorari, p.l-a). In its opinion the Illinois Supreme Court 
specifically found that this conduct was prescribed by the 
Illinois statutes in question and that it was not conduct 
protected under the provisions of the First and Fourteenth 
Amendments (Appendix to Petition for Certiorari, p.5-a) 
In so holding, Mr. Justice Schaefer cited the opinion of this 
Honorable Court in Cox v. Louisiana, 379 U.S. 536, 544 
(1965). Therein, while the holding of the Louisiana Su­
preme Court was reversed because the statute there in 
question was found to be overly broad, this Court also 
noted that the protection offered by the First Amend­
ment to the United States Constitution did not extend 
itself to such modes of expression as blocking the passage 
of traffic along the public streets.

The statement of Mr. Justice Schaefer, speaking for the 
Court is neither novel nor in any sense conflicting with 
previous pronouncements of this Honorable Court. Quite 
the contrary. The First Amendment protections cannot be 
applied to all modes of expression indiscriminately by the 
simple process of labeling all of the petitioner’s conduct 
as “free speech” or free expression. United States v. 
O’Brien, 391 U.S. 367 (1968). As Your Honors pointed 
out in Poulos v. New Hampshire, 345 U.S. 395, (1953), at 
p. 405:

“The principles of the First Amendment are not to 
be treated as a promise that everyone with opinions 
or beliefs to express may gather around him at any



public place and at any time a group for discussion 
or instruction. It is a non sequitur to say that First 
Amendment rights may not be regulated because they 
hold a preferred position in the hierarchy of the Con­
stitutional guarantees of the incidents of freedom. 
This Court has never so held and indeed has in­
dicated the contrary. . .”

And the Court went on to say, at page 408:
“There is no basis for saying that freedom and 

order are not compatible. That would be a decision 
of desperation. Regulation and suppression are not 
the same, either in purpose or result and courts of 
justice can tell the difference.”

We submit that “telling the difference” is exactly what 
the Supreme Court of Illinois has done in the instant 
case. Tour Honors have many times held that one of the 
reasons proper for police intervention in breaking up a 
group of persons is the clear danger that the result of the 
group’s actions will be the interference with the passage 
of traffic upon the public thorofares. Feiner v. New York, 
340 U.S. 315, 320 (1951); Cantwell v. Connecticut, 310 
U.S. 296, 308 (1940). This Court recognizes the strong- 
legitimate interest of the authorities in maintaining order 
upon the public streets. Kovaes v. Cooper, 336 U.S. 77, 82 
(1949); Schneider v. State, 308 U.S. 147, 160 (1939). As 
one legal writer has put it:

“. . . The Constitutional status of a grievance does 
not give First Amendment protection to every form 
utalizied to air it. Sitting down in Times Square or 
at the intersection of State and Madison, however 
lofty the objectives of the demonstrators may be, can­
not be supported by Constitutional privilege.” (Kamin, 
Residential Picketing And the First Amendment, 61 
N.W. U.L. Rev. 177, 208 (1966)).



7

Therefore, as was found by Mr. Justice Schaefer, and 
his collegues, the conduct of the petitioner was not such 
as to come within the protection of the First Amendment 
to the United States Constitution. We therefore submit 
that his claims of Constitutional deprivation are without 
meaning and that he shows here no reason for the grant­
ing of the writ which he requests.

B.
NEITHER ILLINOIS STATUTE IS OVERLY BROAD

NOR VAGUE.
There is no validity to the claims of the petitioner that 

the Illinois Statutory provisions dealing with Disorderly 
Conduct and Resisting a Peace Officer are overly broad or 
too vague to inform him in advance of whether or not his 
contemplated conduct might be prescribed by law. Both 
contentions were specifically rejected by the Illinois Su­
preme Court in their opinion.

As to the Disorderly Conduct Provision (111. Rev. Stah, 
ch. 38, §26-1 (a)), Mr. Justice Schaefer pointed out that the 
petitioner’s arguments overlook the clear meaning of the 
words used in the provision. He continued (Petition for 
Certiorari, pp. 2a-3a, 40 111. 2d 392, 395-396):

. . That conduct must be engaged in “knowingly” 
and in “such unreasonable manner” as to provoke a 
breach of the peace. The word “knowingly” describes 
a conscious and deliberate “quality which negatives ac­
cident or mistake. “Unreasonable” is not a term which 
is impermissibly vague. As used in the Fourth 
Amendment it furnishes the governing standard by 
which the legality of police instructions upon privacy 
are measured. (Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 
2d 889.) As used in this statute it removes the pos­
sibility that a defendant’s conduct may be measured



by the effect upon those who are inordinately timorous 
or belligerent. The well recognized common-law term 
“breach of the peace” appears in §6 of Art. I of the 
Constitution of the United States.”

As Justice Schaefer also pointed out, words of the statute 
must be given their usual and customary meanings and 
resort to all of the possible dictionary definitions of a 
term is not proper since by so doing one could render 
meaningless almost any penal statute. After all, almost all 
words vary in meaning as does the context in which they 
are used. Such a holding is also in complete conformity 
with the past pronouncements of the United States Su­
preme Court and other Federal Courts of review. The 
words of a statute are to be given their normal and cus­
tomary meanings and are not to be viewed by courts of 
review from the point of grammarians or lexicographers. 
Beauharnais v. Illinois, 343 U.S. 250 (1952). The suf­
ficiency of the words of a statute to limit its scope and to 
inform the accused of the conduct prohibited must be de­
termined in view of the interpretation given the statute 
by the courts of the state in which it is enforced. Winters 
v. New York, 333 U.S. 507 (1948); United States v. Jones, 
365 F. 2d 675 (2d. Cir.-1966).

What has been said above applies with equal force to 
the other statute here in question, 111. Rev. Stats., ch. 38, 
§31-1, dealing' with resisting a peace officer. As the 
opinion of the Illinois Supreme Court points out, this 
statute specifically provides for some active resistance of 
a person known to be a peace officer and further requires 
that that officer must be acting in his official capacity at 
the time of the resistance (40 111. 2d 392, 398-399; Petition 
for Certiorari, pp. 6a-7a). This certainly is not overly 
broad and it certainly does inform the potential actor of



9

what conduct is prohibited by the provision. In fact, 
the validity of both the Illinois Disturbing the Peace and 
Resisting a Peace Officer statutes have been upheld in the 
Federal Courts. United States v. Woodward, 376 F. 2d 
136 (7th Cir.-1967); Landry v. Daley, 280 F. Supp. 938 
(N.D. 111. 1968). The statutes here in question were speci­
fically found to be neither too vague nor too broad in 
scope. In fact, in both of these federal decisions, the con­
duct which was held to constitute resisting of a peace 
officer was precisely that of the instant petitioner, “going- 
limp”. The act of “going limp” has been held to constitute 
resisting of a police officer in a number of jurisdictions; 
Cf. In Re Bacon, 240 Cal. App. 2d 34 (1966); People v. 
Crayton, 284 N.Y.S. 2d 672 (Supreme Court of New York, 
1967). In short, there is simply no doubt that the con­
duct of the petitioner was properly found to be that 
covered by the Resisting a Peace Officer statute and that 
any person would know that such conduct was prohibited. 
Furthermore, there is no question that the deliberate block­
ing of a busy intersection during the “rush hour” con­
stituted an act of Disturbing the Peace and that it was 
not conduct protected by the First Amendment.

Therefore, the People of the State of Illinois submit that 
no reason has been shown by the petitioner for the granting 
of the Petition for Certiorari.



10

I I .
THE REMAINING POINTS RAISED BY THE PETI­

TIONER ARE MERELY PROCEDURAL AND IN NO 
WAY SUPPLY GROUNDS FOR THE ISSUANCE OF 
THE REQUESTED PETITION.
The remainder of the petition deals with a number of 

procedural points, none of which provide Your Honors 
with any reason for the issuance of a Petition for Cer­
tiorari to the Illinois Supreme Court.

A.
THE COMPLAINTS RETURNED AGAINST 

PETITIONER.
The complaints against the petitioner were phrased in 

the language of the appropriate statutes and informed the 
accused of the offenses charged and of the conduct for 
which he was being held responsible. This was sufficient 
to make both complaints proper. (Petition for Certiorari, 
pp. 7a-9-a, 40 111. 2d 392, 399-401). The test of an in­
dictment is not whether it could have been made more 
definite and certain but whether it sets forth the elements 
of the offense, enables the accused to know what he will 
be required to defend against, and is specific enough to 
prevent the accused from once again being placed in 
jeopardy upon the same charges. United States v. Hebrew, 
346 U.S. 374, 376 (1963); United States v. Kahn, 381 F. 
2d 824 (7th Cir.-1967); Cert. Denied 389 U.S. 1015. In­
dictments are read for their clear meaning and convic­
tions will not be reversed because of minor deficiencies. 
Smith v. United States, 360 U.S. 1, 9 (1959). A reading 
of the indictments here in question clearly shows that they 
were sufficient to properly state the offense charged.



11

Furthermore, the petitioner is hardly in a position to 
complain about the amendment of the complaint which 
charged him with Resisting a Peace Officer (Petition for 
Certiorari, pp. 13-14). This contention is completely dis­
posed of by the opinion of Mr. Justice Schaefer in the in­
stant case, which shows that the amendment of this com­
plaint was in accordance with the petitioner’s own wishes. 
The Illinois Supreme Court states (Petition for Certiorari, 
pp. 8a-9a, 40 III 2d 392, 400-401):

The complaint for resisting arrest originally in­
cluded an additional allegation: that, when placed un­
der arrest, the defendant “refused to voluntarily ac­
company [the] arresting officer, and had to be physi­
cally carried away and while being carried, did kick, 
squirm, struggle in an effort to escape the custody of 
said officer.” This allegation Avas stricken after the 
defendant complained that its inclusion left him in 
doubt as to whether he Avas being charged under 
section 7—7 or section 31—1 of the Criminal Code. 
The complaint specified only the latter section. Never­
theless, to prevent possible confusion, the State asked 
and was granted permission to strike the second al­
legation. The defendant xioav argues that it -was re- 
versible error to alloAV this amendment. The argu­
ment is Avithout merit. Section III—5 of the Code of 
Criminal Procedure provides: “An indictment, infor­
mation or complaint which charges the commission of 
an offense # * * may be amended on motion by the 
State’s Attorney or defendant at any time because of 
formal defects, including: * * * (d) The presence of 
any unnecessary allegation. 111. Rev. Stat., .1967, eh. 
38,' fl I I-fi.

It is quite plain that the amendment to the complaint now- 
complained of occurred at the instance of the petitioner 
himself. It is equally clear that no harm or prejudice 
could possibly have resulted to him for the action of the 
trial judge in allowing the amendment, and that the amend­



12

ment was proper under the provisions of Illinois criminal 
procedure. We do not believe that more need be said 
upon this question than was said by Mr. Justice Schaefer 
in the above quotation.

B.

THE AMENDED LIST OF WITNESSES.
The petitioner also contends that his right to fair trial 

was abridged by the allowance of the People’s request 
to file an amended list of witnesses at the opening of the 
trial (Petition for Certiorari, pp. 14-15). When the 
amended list of witnesses was submitted, the petitioner 
objected but he did not ask for a continuance when the 
trial judge accepted the offer of the amended list by the 
People (Petition for Certiorari, pp. 9a-10-a). Now the 
petitioner makes a vague assertion that he was somehow 
prejudiced by the fact that he did not have the names 
of these witnesses earlier. Yet he has in no way indicated 
the manner of this prejudice to himself. This fact was 
noted by Mr. Justice Schaefer in the Illinois Supreme 
Court’s opinion in the instant case. There it was noted 
that the purpose of requiring a list of witnesses is to pre­
vent surprise and to guard against false testimony, and 
that allowing the amendment of such a list is a matter 
within the sound discretion of the trial judge (40 111. 2d 
392, 401-402; Petition for Certiorari, p. 10a). The Court 
then concluded:

“In this case the defendant has at no time sug­
gested that if he had been afforded an opportunity to 
prepare for the testimony of the unlisted witnesses he 
would have been able to produce rebuttal witnesses 
or to otherwise impeach the credibility of the unlisted 
witnesses. (See, People v. O’Hara, 332 111. 436, 442, 
466.) Moreover, he himself testified to substantially



the same facts. He has thus failed to make any 
showing that it was prejudicial to permit the un­
listed witnesses to testify, or that their testimony in 
any way surprised him.”

Under these circumstances no reversible error or viola­
tion of the constitutional rights of the petitioner could 
have resulted.

The petitioner attempts to analogize his position con­
cerning the unlisted witnesses to that of the defendant in 
Pointer v. Texas, 380 U.S. 400 (1965), but the analogy is 
a false one. In Pointer v. Texas, the defendants were con­
victed of robbery largely on the basis of testimony 
elicited from a witness during the course of a preliminary 
hearing at which the defendants were not represented by 
counsel. This damaging witness was not available to the 
prosecution at the time of the trial. His testimony was 
received by the trial court by way of a transcript of the 
preliminary hearing, thus completely depriving the de­
fendants of the right to confrontation and cross-examina­
tion. This is far different from the instant factual situa­
tion, as are the holdings in the other cases cited by the 
petitioner in his argument concerning the witness list.

Once again, there is nothing to be found here but an 
allegation that the petitioner was in some way deprived 
of his constitutional rights and that in some way the de­
cision of the Supreme Court of Illinois is erroneous. But 
there is no substantiation of any of these allegations and 
nothing here which would suggest that he is entitled to 
the issuance of the Writ of Certiorari.



14

C.

THE INSTRUCTION TO THE JURY.
Finally, the petitioner alleges that the jury was not 

properly instructed. However, it will he noted that he 
himself is forced to admit that the jury was given in­
structions as to both offenses which set out the elements 
of the crimes in the language of the respective applicable 
statutes (Petition for Certiorari, pp. 15-16). He seems 
once again to contend that since the statutes are uncon- 
situtional, these instructions did not properly inform the 
jury. The propriety of the statutory provisions has already 
been discussed here at some length. Suffice it to say 
here that the statutes were proper and that the instruc­
tions given in their language informed the jury of the 
law applicable to the petitioner’s conduct.

The petitioner complains of the instruction which told 
the jury:

“The court instructs the jury, as a matter of law, 
that resisting a peace officer in the performance of his 
duty may be passive as well as active. To interfere 
and obstruct does not require active resistance and 
force.”

As has been earlier pointed out, passive resistance such 
as “going limp”—as the petitioner did here—has been 
held to be resisting a peace officer. See, Landry v. Daley, 
280 F. Supp. 938 (N.D. 111., (1968)). Such an instruction 
was a perfectly proper statement of the law and as such 
the jury was entitled to hear it. The giving of this or the 
other instructions concerning the nature of the two charged 
offenses was anything but error.



15

CONCLUSION
For the above and foregoing reasons, the People of the 

State of Illinois most respectfully submit to this Honorable 
Court that the request of Albert A. Raby for the issuance 
of a Writ of Certiorari to the Supreme Court of Illinois 
in the instant case be denied.

Respectfully submitted,
E dward V. I Iaxuaiian.

S ta te ’s A tto rney ,
C ounty  of Cook,
R oom  500 —  Civic C enter,
Chicago, Illinois 60602,

Attorney for Respondent.

E lmer C. K issake,
J ames S. V eldman,

A ssis ta n t S ta te ’s A tto rneys,

Of Counsel.



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