Tinsley v. City of Richmond, Virginia Petition for a Writ of Certiorari

    In the

Satprau? (to rt of %  Huitrii i ’tatrs
October Term, 1961 

No.................

R uth E. T insley,
Petitioner,

City of R ichmond, Y ibginia,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

Martin A. Martin
118 East Leigh Street 
Richmond, Virginia

T hurgood Marshall 
J ack Greenberg 
James M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Petitioner
Norman C. A maker 
Charles L. Black, Jr.
E lwood H. Chisolm

Of Counsel



TABLE OF CONTENTS

Citation to Opinion Below ..... ............... -......... ........ ...... 1

Jurisdiction ....................................... ........................ .........  1

Question Presented ............................................................  2

Constitutional and Statutory Provisions Involved .... 2

Statement ..............................................................................  2

How the Federal Questions Were Raised and 
Decided ..........................................     6

Reasons for Granting the W r it ......................................... 8

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

A ppendix ..............    17

Opinion Below ............................................................  17

Judgment ......................................................................  27

Table oe Cases:

Benson v. Norfolk, 163 Va. 1037, 177 S. E. 222 (1934) 13
Bolling v. Sharpe, 347 U. S. 497 ................................... 8
Burstyn v. Wilson, 343 U. S. 495 ................................... 11

Commonwealth v. Carpenter, 325 Mass. 519, 91 N. E.
2d 666 (1950) .....................    9,11

Commonwealth v. Challis, 8 Pa. Superior Ct. 130
(1898) .............................      13

Commonwealth v. Slome, 321 Mass. 129 ........   12
Connally v. General Construction Co., 269 U. S. 385 ..10,12

PAGE



11

Deer Park v. Schuster, 16 Ohio Ops. 485, 30 Ohio L.

PAGE

Abs. 466 (1940) ......... ......................................... ........... 9,11

Ex parte Mittelstaedt, 164 Tex. Criin. 115, 297 S. W.
2d 153 (1956) ................................................ ................. 9,11

Hague v. Committee for Industrial Organization, 307
U. S. 496 ....................................... ...... ......... .................  9

Hirabayashi v. United States, 320 U. S. 81 ................... 9

Kunz v. New York, 340 U. S. 290 ....... ...........................  9

Lanzetta v. New Jersey, 306 U. S. 451 .......................11,12

Martin v. Hunter’s Lessee, 1 Wheat. 304 ..................... 13

Niemotko v. Maryland, 340 U. S. 268 ........................... 9

People v. Diaz, 4 N. Y. 2d 469,151 N. E. 2d 871 (1958) ..9,11 
People v. Johnson, 6 N. Y. 2d 549,161 N. E. 2d 9 (1959) 13
People v. Merrolla, 9 N. Y. 2d 62, 172 N. E. 2d 541

(1961) .......      13
People v. Wiener, 254 App. Div. 695, 3 N. Y. S. 2d

974 (1938)................ ............. ....... ......... .......................... 9,11
Pinkerton v. Verberg, 78 Mich. 573, 44 N. W. 579 (1889) 9

Saia v. New York, 334 11. S. 558 ................................  9
Schneider v. Irvington, 308 U. S. 147 ......................  9
Soles v. Vidalia, 92 Ga. App. 839, 90 S. E. 2d 249

(1955) ................................................................................9,11
St. Louis v. Gloner, 210 Mo. 502, 109 S. W. 30 (1908) ..9,11 
State v. Hunter, 106 N. C. 796, 11 S. E. 366 (1890) .... 9
State v. Starr, 57 Ariz. 270, 113 P. 2d 356 (1941) .......  13
State v. Sugarman, 126 Minn. 477,148 N. W. 466 (1914) 13



Ill

Tacoma v. Roe, 190 Wash. 444, 68 P. 2d 1028 (1937) .. 13 
Territory of Hawaii v. Anduha, 48 F. 2d 171 (9th Cir.

PAGE

1931) .................. ........... ...................... ................ ............ 9,11
Thompson v. Louisville, 362 U. S. 199 ....... ................. 10,14

Winters v. New York, 333 U. 8. 507 ............................... 12

Other A uthorities :

American Law Institute, Model Penal Code, Tentative 
Draft No. 13 ...................................................... ..... ..... 10,13

Douglas, “Vagrancy and Arrest on Suspicion,” 70 
Yale L. J. 1 (1960) ....... ........ ....... ....... ..........................  14



In the

£>uprptup (Eourt of tip? llutfplt t̂at̂ B
October Term, 1961 

No.................

R uth E. T insley,

— v.-

Petitioner,

City of R ichmond, V irginia,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Appeals of Virginia, 
entered in the above-entitled case on April 24, 1961.

Citation to Opinion Below

The Hustings Court of the City of Richmond did not 
render an opinion in this ease. The opinion of the Supreme 
Court of Appeals of Virginia (R. 31) is reported at 202 Va. 
707, 119 S. E. 2d 488, and is printed in the Appendix here­
to, infra, p. 17.

Jurisdiction

The judgment of the Supreme Court of Appeals of Vir­
ginia (R. 46) was entered on April 24, 1961 (Appendix p. 
27, infra). The jurisdiction of this Court is invoked under 
Title 28, United States Code, §1257(3).



2

Question Presented

Whether the petitioner’s rights under the due process 
clause of the Fourteenth Amendment were violated by her 
conviction under an ordinance which makes it a crime not 
to move when ordered to do so by a policeman, and which 
articulates no standards to guide or limit the policeman 
in exercising this authority.

Constitutional and Statutory 
Provisions Involved

This case involves:

1. Section 1 of the Fourteenth Amendment to the Con­
stitution of the United States;

2. Section 24-17 of the Code of the City of Richmond, 
Virginia, 1957:

Any person loitering or standing on the street, side­
walk or curb, shall move on or separate when required 
to do so by any member of the Police Bureau and shall 
cease to occupy such position on the street, sidewalk, or 
curb.

Statement

Petitioner, Ruth E. Tinsley, was arrested in Richmond, 
Virginia on February 23, 1960, on a warrant charging that 
on that day she did “unlawfully refuse to move on when 
told to do so by police officer D. L. Nuckols in violation of 
Section 24-17 of the City Code” (R. 3). Petitioner was 
brought before the Hustings Court of the City of Rich­
mond, entered a plea of not guilt3r, and elected to be tried 
by the Court without a jury (R. 4-5). She was found



3

guilty and a ten dollar fine was assessed on April 11, 1960 
(E. 4). The Supreme Court of Appeals of Virginia granted 
a writ of error (E. 1), and on April 24, 1961 (E. 46), af­
firmed the judgment below.

On February 23, 1960, at 3:55 p.m. (E. 13), petitioner, 
Mrs. Euth E. Tinsley, a Negro1 58 years of age, a long-time 
resident of Eichmond and the wife of a practicing dentist in 
the City, was standing on the sidewalk near the corner of 
Sixth and Broad Streets in downtown Eichmond (E. 22). 
She was standing under a clock, near a glass window of 
Thalhimer’s Department Store while waiting, as she had 
done frequently in the past, to meet a friend (E. 22, 23, 
24). The sidewalk was sixteen and a half feet wide; peti­
tioner was about thirty-five feet from the curb-line of the 
nearby corner (E. 14-15). She was alone, talking to no one, 
and was not at all disorderly (E. 17). People were walking 
up and down the sidewalk; no one was blocking it (E. 18).

Before reaching this corner, someone had given her a 
handbill stating “ don’t buy where you cannot eat, and turn 
your charge plate in, and something else” (E. 22). There­
upon, she decided not to enter Thalhimers, but merely to 
wait for her friend. (E. 23, 24).

That day the downtown area was crowded and a group of 
pickets was walking back and forth at Thalhimers. Patrol­
man Nuckols had been assigned to patrol the area with his 
trained attack dog, and to keep everyone in the area moving 
because of the picketing (E. 12). A newsboy earlier had 
been required to move from the corner, but later obtained 
permission to remain and sell papers (E. 13) ; persons wait­
ing for buses had been directed to stand away from the 
building (E. 8 ); plainselothesmen were instructed to keep

1 The designation “ CF” , meaning colored female appears in the 
warrant (R. 3).



4

moving (E. 9). All this was said to be part of a police effort 
to keep the sidewalks open and avoid trouble in the area of 
picketing (E. 9). Nothing in the record indicates that Mrs. 
Tinsley was aware of any of these police activities or the 
reasons for them.

As soon as Mrs. Tinsley stopped at the store window, 
officer Nuckols approached her. He testified (E. 13-14):

Q. Tell the Court exactly what happened as you ap­
proached Mrs. Tinsely? A. Well, before I got to Mrs. 
Tinsley I had asked some people were they waiting for 
the bus, and they said that they were. I said would 
you mind waiting for the bus at the bus stop. They 
moved over there, and I passed the Sixth Street door 
and Mrs. Tinsley was standing there, and I said that 
she would have to keep moving on. She stated why 
have I got to move. I said “ Do you mind, please, to keep 
moving on?”  She said how about them people there? 
I said that I hadn’t got to them yet. By that time it was 
two gentlemen standing at the corner and they moved.

She said are you going to tell me the reason why I 
have got to move. I said move, said that in a tone of 
voice where she was sure to hear, if she had been hard 
of hearing she certainly could have heard it. She had 
some packages in her hand, handbag, and she did like 
this (indicating by stamping foot).

Q. So you asked her to move twice, please to move 
on? A. The first time I asked her “ Would you mind, 
keep moving.” The second time “Please move.” And 
the third time I said “Move.”

Q. Did she move? A. No, sir. I placed her under 
arrest.



5

On cross examination, the officer testified (E. 25):

Q. And the only thing that happened was you ordered 
her, I think on two occasions, twice on the same oc­
casion, to move, and each time she asked you why.

Why must she move. You never did tell her why she 
should move, did you? A. No, sir.

Q. And then you just arrested her without telling 
her why you were arresting her, or why she was re­
quired to move? A. (Pause) No, I didn’t tell her 
why she had to move (E. 18-19).

Petitioner repeatedly testified that all she wanted to 
know was “ why” she had to move on (E. 25) :

Q. Did you have any intention of violating any law? 
A. I had no intention. That is why I wanted to know 
why.

Q. Did you know you were violating any law? A. I 
didn’t know I was violating a law, because I thought 
you could ask why. That is all I wanted to know, was 
why. . . .

# # # # #
A. I didn’t know where I had to go. People were cross­
ing the street. There were people on the curb. There 
were people around everywhere. I wanted to know why 
that I had to move on.

The record contains no evidence of violence or appre­
hension of violence in the vicinity; nor does it reveal that 
normal passage of the sidewalk was blocked; nor does it 
display any reason why a citizen in the normal course 
of events might anticipate that he ought not to occupy 
a place on the street, except, of course, the officer’s com­
mand to move on.



6

How the Federal Questions Were Raised and Decided

At the beginning of trial, petitioner’s counsel orally 
moved to dismiss the warrant on grounds that the ordi­
nance violated the Fourteenth Amendment to the Constitu­
tion of the United States, because of its vagueness and 
because it gave the police officer unfettered authority to 
require citizens to move on (R. 6-7). The Court overruled 
the motion (R. 7).

On appeal, among the errors assigned was a claim that 
the ordinance “ grants unlimited and unfettered authority 
to any police officer in the City of Richmond, Virginia, to 
require citizens on the street to separate or move on, with­
out limitations, and therefore violates the Constitution of 
Virginia and the First and Fourteenth Amendments to the 
Constitution of the United States” ; and a further claim 
that “ said section is so vague as to violate the Constitution 
of the State of Virginia and the Constitution of the United 
States” (R. 2-3).

In affirming the conviction, the Supreme Court of Appeals 
of Virginia rejected all of the claims urged by petitioner 
in her assignments of error. Its opinion, however, did not 
discuss the issue presented by the petitioner in her as­
signment No. 4 as to whether the ordinance—because of its 
grant of unlimited authority to any police officer in the 
City of Richmond—violated the due process clause of the 
Fourteenth Amendment. Instead the Court upheld the 
validity of the ordinance on the ground that the City of 
Richmond, under section 2.04 of its charter, had “power to 
adopt ordinances ‘for the preservation of the safety, health, 
peace, good order, comfort, convenience, morals and welfare 
of its inhabitants’ and for the ‘prevention of conduct in 
the streets dangerous to the public’ (Acts of Assembly 
1948, p. 183)” (R. 35) and that the ordinance in question



7

was reasonably adapted to that end. It found the delegation 
of discretionary power without providing a uniform rule 
of action to guide officers justified “where it is difficult 
or impracticable to lay down a definite or comprehensive 
rule, or where the discretion relates to the administration 
of a police regulation and is essential to the public morals, 
health, safety and welfare” (E. 35). The Court then 
stated (E. 36):

In order to carry out the purposes for which such 
a regulatory ordinance is adopted, the legislative body 
may place in the hands of the officers responsible for 
its enforcement, such discretion as is reasonable and 
proper to promote public peace and order. More­
over, it would be impossible, in such a case, to delineate 
in the ordinance itself, each circumstance which would 
be sufficient to warrant action by such officers. Under 
these conditions, the failure to set out a specific stand­
ard of conduct in the ordinance does not render the 
ordinance void.

The Court further said (E. 41):

The test as to whether there has been a reasonable 
and proper exercise of the authority given the enforc­
ing officers by the statute or ordinance is a matter for 
judicial determination, and depends upon the circum­
stances surrounding each arrest. If, upon judicial re­
view, it appears that the police officer has acted arbi­
trarily, it is the duty of the courts to acquit the al­
leged offender. On the other hand, if the officer has 
acted reasonably to promote the public welfare and 
peace, his actions must be upheld.

The Court held that on the facts of this case the officer 
did not act arbitrarily and that the facts fully justified his 
action (E. 42).



8

The Court also did not discuss the issue presented by 
petitioner’s fifth assignment of error—whether the ordi­
nance’s vagueness violated the Constitution of the United 
States. It simply resorted to one of its prior decisions, say­
ing as follows (R. 42):

The test of statutory definiteness has been laid down 
in the case of Standard Oil Co. v. Commonwealth, 131 
Va. 830, 833; 109 S. E. 316, that “ an ordinance of a 
regulatory nature must be clear, certain and definite, 
so that the average man may, with due care, after read­
ing the same, understand whether he will incur a 
penalty for his action or not, and if not of this char­
acter it is void for uncertainty.”

We think the ordinance in question amply meets 
this test, and is not unconstitutional and void for the 
reason assigned.

Reasons for Granting the Writ

This case involves a substantial constitutional issue af­
fecting an important aspect of personal liberty, the right 
to make peaceful and ordinary use of public streets free 
from police interference under a criminal ordinance grant­
ing policemen absolute discretion to order persons to 
“move along.”

The right to use the public streets is so clearly an as­
pect of personal liberty that the point need not be labored, 
as “ [ljiberty under law extends to the full range of con­
duct which the individual is free to pursue, . . . ” 2 It 
should be sufficient to note that liberty to use the streets is 
recognized in many decisions involving free speech, as­

2 Bolling v. Sharpe, 347 U.S. 497, 499.



9

sembly, and religion,3 as well as in cases involving loiter­
ing4 and curfew laws.5

The ordinance invoked against petitioner furnishes no 
guide to define circumstances under which an officer may 
direct a person to move on. This is left entirely to police 
discretion. The only check on police discretion is subse­
quent judicial review in a criminal prosecution in which 
Virginia courts apply a generalized conception of “ rea­
sonableness” . The ordinance permits a policeman to or­
der a person about the streets for any reason a police­
man deems fit and subjects the citizen to the peril of 
criminal punishment if he fails to move. The citizen is 
criminally liable if, upon judicial consideration of various 
circumstances not mentioned in the ordinance, nor defined 
elsewhere, a court determines that the police demand was 
reasonable. The invitation to official abuse in this ordi­
nance is amply illustrated by the present case. Officer 
Nuckols simply demanded that petitioner leave, refused to

3 See Hague v. Committee for Industrial Organization, 307 U.S. 
496, 515-516; Schneider v. Irvington, 308 U.S. 147, 160; Saia v. New 
York, 334 U.S. 558, 561, note 2; Niemotko v. Maryland, 340 U.S. 
268; Kunz v. New York, 340 U.S. 290.

4 Deer Park v. Schuster, 16 Ohio Ops. 485, 30 Ohio L. Abs. 466 
(1940); 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) ■ State v. 
Hunter, 106 N.C. 796, 11 S.E. 366 (1890) ; Soles v. Vidalia, 92 Ga. 
App. 839, 90 S.E.2d 249 (1955); Commonwealth v. Carpenter, 325 
Mass. 519, 91 N.E.2d 666 (1950) ; Territory of Hawaii v. Anduha, 
48 F.2d 171 (9th Cir. 1931). Cf. People v. Wiener, 254 App. Div. 
695, 3 N.Y.S.2d 974 (1938) ; Ex parte Mittelstaedt, 164 Tex. Crim. 
115, 297 S.W.2d 153 (1956). In Pinkerton v. Verberg, 78 Mich. 
573, 584, 44 N.W. 579 (1889), the court said: “Personal liberty, 
which is guaranteed every citizen under our Constitution and laws, 
consists of the right of locomotion,— to go where one pleases, and 
when, and to do that which may lead to one’s business or pleasure, 
only so far restrained as the rights of others may make it necessary 
for the welfare of all other citizens.”

5 Cf. Hirabayashi v. United States, 320 U.S. 81, 111 (concurring 
opinion) describing a curfew as a restraint upon “ liberty.”



10

answer her repeated simple question as to why, repeated 
his demand more loudly, and then arrested her. The court, 
in determining that his actions were “ fully justified” by the 
circumstances (R. 42), approved his refusal to answer peti­
tioner’s simple question and concluded that the “ officer was 
under no obligation to stand and argue with the defen­
dant.” 6

The ordinance, as thus expounded, clearly contains no 
readily ascertainable standard of guilt or criminality which 
fairly warns a citizen that his conduct is prohibited. To 
be sure a citizen will know when he has not obeyed a com­
mand to move on. But neither the officer making such a 
demand, nor the citizen subjected to it, nor the court later 
reviewing it, is furnished by the statute with any stand­
ards for determining whether the policeman’s command 
is one which may be safely disregarded (an “unreasonable” 
order) or must be obeyed to avoid a violation of law (a 
“ reasonable” order ). This determination can only be made 
by the courts (themselves operating in terms of a vaguely 
defined conception of reasonableness based upon circum­
stances possibly unknown to the defendant) on an ad hoc 
basis after the fact.

The courts have long recognized that one of the evils 
of vague criminal laws is that they confer upon judges 
and jurors the discretion to punish actions not clearly de­
fined. See Connally v. General Construction Company, 269

6 Of. Thompson v. Louisville, infra. With reference to alterca­
tion with policemen see also American Law Institute, Model Penal 
Code, Tentative Draft No. 13, pp. 13-18. (The reporters observed, 
at p. 14: “ Hostility to policemen among considerable groups in the 
population rests in part on a feeling that arrests often reflect 
affront to the policeman’s personal sensibilities rather than vindi­
cation of the public interest. It would therefore improve police 
prestige if the law and police administration took a conservative 
approach to penalizing petty wounds to policemen’s sensibilities.” )



11

U. S. 385, 395 (“varying impressions of juries” ) ; Burstyn 
v. Wilson, 343 U. S. 495, 532 (Mr. Justice Frankfurter, con­
curring) (law did not “ sufficiently apprise . . .  of what may 
reasonably be foreseen to be found illicit by the law enforc­
ing authority, whether court or jury or administrative 
agency” ). See, generally, Lametta v. New Jersey, 306 
U. S. 451.

Of course, it might be argued that a citizen could obey 
every police command and thereby gain safety from the 
Richmond ordinance; but this would require the peaceful, 
harmless citizen to submit to every police demand on the 
public street, no matter how arbitrary or irrational. Many 
state courts have condemned loitering ordinances which, 
like the one in this case, were so vague that they failed 
to define the prohibited conduct.7 These cases illustrate the 
prevalent judicial abhorrence of vague loitering laws.

In Commonwealth v. Carpenter, 325 Mass. 519, 91 N. E. 
2d 666 (1950), the highest court of Massachusetts invali­
dated a law similar to that in the present case. That law 
provided in relevant part that “No person shall, in a street, 
unreasonably obstruct the free passage of foot-travelers, 
or willfully and unreasonably saunter or loiter for more 
than seven minutes after being directed by a police officer 
to move on. . . ” . The Court observed that the portion of 
the law relating to obstruction of travel was not in issue 
and that no violence or breach of the peace was involved. 
Thus the reasoning of the Court is equally applicable here. 
The Court said at 325 Mass. 519, 521-522, 91 N. E. 2d 666, 
667:

7 St. Louis v. Gloner, supra; People v. Diaz, supra; Deer Park 
v. Schuster, supra; Soles v. Vidalia, supra; Territory of Hawaii 
v. Anduha, supra; Commonwealth v. Carpenter, supra; Ex parte 
Mittelstaedt, supra. See also People v. Wiener, 254 App. Div. 695,
3 N.Y.S.2d 974 (1938) (invalidating a law prohibiting disobedi­
ence to police officers’ commands).



12

In the view we take, the facts are unimportant. The 
part of the ordinance here considered we hold to be 
void on its face as repugnant to the due process clause 
of §1 of the Fourteenth Amendment to the Constitution 
of the United States and to Art. 12 of the Declaration 
of Rights of the Constitution of this Commonwealth. 
It undertakes to make criminal an intentional and un­
reasonable failure by one on a street to move on as 
soon as seven minutes have elapsed after a direction 
to that end given by a police officer. Prima facie, mere 
sauntering or loitering on a public way is lawful and 
the right of any man, woman, or child. This the Com­
monwealth concedes. Under the ordinance, such con­
duct continues conditionally lawful subject to a direc­
tion to move on by a police officer followed by unrea­
sonable failure to comply and the expiration of seven 
minutes. Not all idling is prohibited, but only that 
which is unreasonable. The vice of the ordinance lies 
in its failure to prescribe any standard capable of in­
telligent human evaluation to enable one chargeable 
with its violation to discover those conditions which 
convert conduct which is prima facie lawful into that 
which is criminal. A  “ statute which either forbids or 
requires the doing of an act in terms so vague that men 
of common intelligence must necessarily guess at its 
meaning and differ as to its application, violates the 
first essential of due process of law.” Connally v. 
General Construction Co., 269 U. S. 385, 391; Lanzetta 
v. New Jersey, 306 U. S. 451, 453; Winters v. New 
York, 333 U. S. 507, 515-516; Commonwealth v. Slome, 
321 Mass. 129, 133-134. (Emphasis supplied.)

Moreover, cases upholding loitering laws have approved 
only ordinances containing standards for the exercise of 
police discretion, i.e., limiting their application to certain



13

areas, times, and circumstances.8 These cases demonstrate 
the feasibility of drafting municipal ordinances so as to 
limit police discretion to dealing with clearly defined evils. 
Loitering laws which prevent obstruction of the streets, 
authorize quelling potential riots, or which serve other 
valid, defined legislative ends, need not confer on police 
officers unlimited power to restrain the liberty of citizens 
using the public streets.9

The conflict of the holding below in this case with the 
dominant tenor of other state court decisions on the same 
point of federal constitutional law makes it desirable that 
this Court settle the point. See Martin v. Hunter’s Lessee, 
1 Wheat. 304, 347-348, 380.

The importance of this issue should not be obscured 
by its presentation in the context of a conviction on a minor 
criminal charge, punished by a ten dollar fine. The im­
portance of minor offenses such as this in our judicial sys­
tem was well stated in a recently published discussion of dis­
orderly conduct and related offenses by the American Law 
Institute in its Model Penal Code, Tentative Draft No. 13, 
P-2:

This article deals with a vast area of penal law 
which has received little systematic consideration by

8 See, for example, State v. Sugarman, 126 Minn. 477, 148 N.W. 
466 (1914) (obstructing sidewalk) ; Tacoma v. Roe, 190 Wash. 444, 
68 P.2d 1028 (1937) (same) ; Commonwealth v. Challis, 8 Pa. 
Superior Ct. 130 (1898) (same) ; State v. Starr, 57 Ariz. 270, 
113 P.2d 356 (1941) (limited as to certain times in specific area 
near schools and in terms of absence of “ legitimate reason” ) ; 
People v. Johnson, 6 N.Y.2d 549, 161 N.E.2d 9 (1959) (in schools) ; 
People v. Merolla, 9 N.Y.2d 62, 172 N.E.2d 541 (1961) (within 
in 500 feet of dock or pier). An apparent exception is Benson v. 
Norfolk, 163 Va. 1037, 177 S.E. 222 (1934).

9 Cf. American Law Institute, Model Penal Code, Tentative Draft 
No. 13, §§250.1(2), 250.12.



14

legislatures, judges, and scholars. The reason for this 
is that the penalties involved are generally minor, 
and defendants are usually from the lowest economic 
and social levels. Appeals are infrequent and pres­
sures for legislative reform are minimal. Yet, this is 
a most important area of criminal administration, af­
fecting the largest number of defendants, involving a 
great portion of police activity, and powerfully in­
fluencing the view of public justice held by millions 
of people.

The importance attached to the administration of justice 
in cases involving minor offenses is further illustrated, of 
course, by this Court’s review of Thompson v. Louisville, 
362 U. S. 199. And see Douglas, “ Vagrancy and Arrest on 
Suspicion,” 70 Yale L. J. 1 (1960).

The granting of this petition would bring under the 
hand of this Court a case involving the infringement of a 
basic liberty, that of freedom of movement, by a means 
fundamentally wanting in the definiteness and freedom 
from arbitrary power that make up our concept of due 
process of law.



15

CONCLUSION

For the foregoing reasons, this petition for a writ of 
certiorari should be granted.

Respectfully submitted,

Martin A. Martin 
118 East Leigh Street 

Richmond, Virginia

T hurgood Marshall 
J ack Greenberg 
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Petitioner

Norman C. A maker 
Charles L. Black, Jr. 
E lwood H. Chisolm

Of Counsel





APPENDIX

P r e s e n t :
Opinion Below

All the Justices.

Record No. 5232

R uth E. T insley

City oe R ichmond

F bom the H ustings Court of the City of Richmond 
W. Moscoe Huntley, Judge

Opinion by J ustice H arry L. Carrico

Richmond, Virginia, April 24th, 1961

Ruth E. Tinsley was arrested on a warrant which con­
tained the charge that she did on the 23rd day of February, 
1960, “unlawfully refuse to move on when told to do so by 
Police Officer D. L. Nuckols in violation of Section 24-17 
of the City Code.”  Richmond City Code, 1957, Section 24- 
17. Upon her trial in the court below, without a jury, she 
was found guilty and her punishment was fixed at a fine of 
$10.00. She sought, and was granted, a writ of error to 
the judgment of conviction.

The defendant has assigned a number of errors which 
attack the constitutionality and validity of the ordinance 
under which she was arrested, tried and convicted. She 
also contends that the evidence presented against her was 
insufficient to sustain her conviction.



18

The material facts in the case are not in dispute.
On February 23rd, 1960, Thalhimer’s Department Store, 

located in a block bounded by Sixth, Seventh, Broad and 
Grace Streets, in the City of Richmond, was being picketed 
by large numbers of persons who were carrying placards, 
and who were circling the store on the sidewalks adjacent 
thereto. In addition to the pickets, large crowds were on 
the sidewalks. Demonstrations of a similar nature had 
taken place previously in the same area, and some students 
taking part in the demonstrations had been arrested.

A  number of police officers, some in uniform, and some 
not, had been assigned to the area. They had been in­
structed by their superiors to keep everyone moving on the 
sidewalks, and in compliance with these orders the pickets, 
onlookers, and even the police officers not in uniform, were 
directed to keep moving. Two of the police officers, Lt. L. 
H. Griffin and Patrolman D. L. Nuckols, testified that these 
actions were taken to keep the sidewalk open for pedestrian 
traffic and to avoid disorder.

Persons waiting for buses at a bus stop were required 
to move to a position, in line, near the curb.

A  newsboy, selling newspapers on a corner of the block, 
was required by the police officers to move on, but was 
later permitted to return when the newspaper company by 
whom he was employed intervened with the police in his 
behalf.

Defendant, on this date, was on her way to Thalhimer’s 
to pay a bill she owed there, and then planned to wait out­
side the store to meet a friend. As she neared the store, 
someone gave her a handbill which contained an admonition 
against dealing at Thalhimer’s, so she decided not to go 
into the store to pay her bill, but instead to wait for her 
friend outside the store building, at the corner of Sixth 
and Broad Streets.



19

Defendant saw the pickets and the large crowds of peo­
ple on the sidewalks.

She was standing against the window of the store when 
Officer Nuekols, in full uniform, approached her and asked 
her to move on. She asked him why she had to move. Again 
the officer asked her to move. She then pointed out to him 
some other people wrho were not moving and again asked 
him why she had to move. The officer said he hadn’t yet 
gotten to the other people and then ordered her to move. 
She refused, and the officer arrested her on the charge 
set forth in the warrant.

The ordinance in question, Section 24-17 of the Code of 
the City of Richmond, is as follows:

“ Any person loitering or standing on the street, side­
walk or curb, shall move on or separate when required to 
do so by any member of the Police Bureau and shall cease 
to occupy such position on the street, sidewalk or curb.”

Defendant contends that the ordinance is unconstitutional 
in that :

1. It is an unlawful delegation of legislative power, be­
cause it fails to prescribe standards to guide the conduct 
of the members of the Police Bureau.

2. It is vague and ambiguous.

These two contentions will be dealt with together, since 
the arguments advanced by defendant in support of her 
first contention would, if valid, apply to her second con­
tention, and vice versa.

We recognize the constitutional prohibition that or­
dinarily, in a statute or ordinance, a legislative body can­
not delegate to administrative officers an exercise of dis­
cretionary power, without providing a uniform rule of 
action to guide such officers. We have, however, also recog­
nized a well established exception to this rule. This excep­



20

tion applies in instances where it is difficult or impracti­
cable to lay down a definite or comprehensive rule, or where 
the discretion relates to the administration of a police 
regulation and is essential to the public morals, health, 
safety and welfare.

It is our opinion that in the enactment of the ordinance, 
the city has validly exercised the powers given it under its 
charter, and has not unlawfully delegated its legislative 
power.

Section 2.04 of the charter grants to the City Council 
the power to adopt ordinances “ for the preservation of the 
safety, health, peace, good order, comfort, convenience, 
morals and welfare of its inhabitants,” and for the “ pre­
vention of conduct in the streets dangerous to the public” 
(Acts of Assembly 1948, p. 183).

In the exercise of these powers the City Council adopted 
Section 24-17 of the City Code of 1957. It should be noted 
that the ordinance now in dispute was first adopted in 
1909 and has been re-enacted in the various city codes since 
that time, pursuant to previously existing charter au­
thority. t

The ordinance in question is of a regulatory nature and 
is designed to preserve the safety, peace, good order and 
convenience of the inhabitants of the City, and to prevent 
conduct in the streets dangerous to the public.

In order to carry out the purposes for which such a 
regulatory ordinance is adopted, the legislative body may 
place in the hands of the officers responsible for its enforce­
ment, such discretion as is reasonable and proper to pro­
mote public peace and order. Moreover, it would be impos­
sible, in such a case, to delineate in the ordinance itself, 
each circumstance which would be sufficient to warrant 
action by such officers. Under these conditions, the failure 
to set out a specific standard of conduct in the ordinance 
does not render the ordinance void.



21

This court has recognized this principle in the case of 
Taylor v. Smith, 140 Ya. 217, 124 S. E. 259, where we said:

“ We are of the opinion that a city may, in the execution 
of its police power, invest its administrative and executive 
officers with a reasonable discretion in the performance 
of duties devolved upon them to that end, whenever it is 
necessary for the safety and welfare of the public. Such a 
discretion is neither arbitrary nor capricious.” (140 Va., 
at pages 231, 232.)

The court also quoted, with approval, the following from 
12 A. L. R. 1435:

“ It is also well settled that it is not always necessary 
that the statutes and ordinances prescribe a specific rule 
of action, but on the other hand, some situations require 
the vesting* of some discretion in public officials, as for in­
stance, where it is difficult or impracticable to lay down a 
definite, comprehensive rule, or the regulation relates to 
the administration of a police regulation and is necessary 
to protect the public morals, health, safety, and general 
welfare.”

We have previously upheld the validity of an ordinance 
similar to the one in question here, in the case of Benson v. 
City of Norfolk, 163 Va. 1037, 177 S. E. 222.

In the Benson case the City of Norfolk had, in 1907, in 
exercise of charter powers similar to those held by the City 
of Richmond, enacted the following ordinance:

“ Sec. 483. Authority of police to require persons on 
street to move on.

“ Any person or persons, vending or hawking goods, 
wares or merchandise, or loitering or standing on any of 
the streets or ways of the City, shall when required so 
to do by any member of the police force, move on, or any 
group of persons standing shall separate and move on, and



22

cease to occupy such position on the street or way, under 
penalty of not less than three nor more than fifty dollars 
for each offense, and in addition, in the discretion of the 
Police Justice, may be confined in jail not exceeding thirty 
days.”

Benson assailed the constitutionality of the Norfolk 
ordinance on the grounds, among others not applicable 
here, that it constituted an unlawful delegation of legis­
lative power in that it failed to lay down rules for the 
conduct of the police officers in enforcing the ordinance.

We said in the Benson case:

“ The general power to regulate the use of the streets, 
and to do all things necessary or expedient for promoting 
the general welfare and peace of its inhabitants, and to 
make and enforce all ordinances would certainly seem to 
warrant the enactment of the ordinance in question. (163 
Va., at page 1039.)

#  #  #  *  #

“ It is, in our opinion, most salutary that the police offi­
cers of a municipality should have reasonable authority 
and discretion. Indeed, in exigencies, it is vital to the wel­
fare of the community.

“ Courts should assume, initially, that they will exercise 
their discretion and authority in a fair and reasonable 
way.” (163 Va., at page 1040.)

We re-adopt these views and hold them to be controlling 
in the case now before us.

Legislative enactments of a similar nature have come 
under review in the courts of other jurisdictions. While 
there is a division of authority on the question of the 
validity of such regulations (See Am. Jur., Highways, Sec­
tion 189, pp. 488, 489 and 65 ALE 2d, p. 1152) we adhere to 
our holding in Benson v. City of Norfolk, supra, that they 
are valid.



23

Typical of the cases approving such regulations is Peo­
ple v. Galpern, 259 N. Y. 279, 181 N. E. 572, in which the 
Court of Appeals of New York had under examination 
section 722 of the Penal Law (Laws 1923, c. 642, as amended 
by Laws 1924, c. 476) which provided that in cities of 500,- 
000 inhabitants or more, it would constitute disorderly 
conduct if a person “ congregates with others on a public 
street and refuses to move on when ordered by the police.”

Galpern was standing on a sidewalk with five or six 
friends, in an orderly and inoffensive way. There were no 
other circumstances surrounding the incident. A  police 
officer ordered the members of the group to move on, and 
Galpern refused to do so, and was arrested and charged 
with disorderly conduct. His conviction wTas upheld, and the 
Court said in its opinion:

“ A  refusal to obey such an order can be justified only 
where the circumstances show conclusively that the police 
officer’s direction was purely arbitrary and was not calcu­
lated in any way to promote the public order. That is not 
the case here.” (181 N. E., at page 574.)

See also State v. Sugarman, 126 Minn. 477, 148 N. W. 
466; City of Tacoma v. Roe, 190 Wash. 44, 68 P. 2nd 1028.

In the Galpern case, as has been noted, the regulation 
required that a person had to congregate with others be­
fore an order to move on could be given. In the Sugarman 
case, three or more persons had to be assembled before such 
an order would be warranted. But in the Roe case, as with 
the ordinance now before us, a person standing alone 
on the street or sidewalk could be ordered to move on. A l­
though these regulations differ in these respects, it will be 
seen from a reading of all of them that a common purpose 
is sought to be achieved—a free and unobstructed passage 
of the street or sidewalk. In each regulation the offense 
consists of standing on the street or sidewalk, and the



24

person’s obligation to move on is conditioned npon a warn­
ing by a police officer to so move. The regulation has been 
upheld even though only one person of a group refused to 
move on and was arrested because he did not comply. The 
fact that such a regulation may be operative when a per­
son is standing alone does not render the regulation void. 
The important consideration is whether the regulation is 
designed to afford free and unobstructed passage of the 
street or sidewalk for the preservation of public order, and 
the controlling factor in each arrest is whether or not the 
officer authorized to enforce the regulation has acted arbi­
trarily.

The test as to whether there has been a reasonable and 
proper exercise of the authority given the enforcing offi­
cers by the statute or ordinance is a matter for judicial 
determination, and depends upon the circumstances sur­
rounding each arrest. If, upon judicial review", it appears 
that the police officer has acted arbitrarily, it is the duty of 
the courts to acquit the alleged offender. On the other hand, 
if the officer has acted reasonably to promote the public 
welfare and peace, his actions must be upheld.

In this case, where, at the time of the arrest, picketing 
of a highly controversial nature was taking place, crowds 
of people were on the sidewalks, some friendly and some 
hostile to the pickets, and tensions ran high, it was impera­
tive that order be maintained, and that there be a “ pre­
vention of conduct in the streets dangerous to the public.” 
(Richmond City Charter §2.04.) Under these circum­
stances, when the police officer invoked the ordinance in 
question against the defendant, we cannot say that he acted 
arbitrarily. The facts fully justify the action taken by him.

Defendant complains that the ordinance is so vague and 
ambiguous as to render it unconstitutional and void.

The test of statutory definiteness has been laid down in 
the case of Standard Oil Co. v. Commonwealth, 131 Va. 830,



25

833,109 S. E. 316, that “ an ordinance of a regulatory nature 
must be clear, certain and definite, so that the average 
man may, with due care, after reading the same, understand 
whether he will incur a penalty for his action or not, and 
if not of this character it is void for uncertainty.”

We think the ordinance in question amply meets this 
test, and is not unconstitutional and void for the reason as­
signed.

The defendant, in her argument that the ordinance is 
vague and ambiguous seems also to assert that the facts 
surrounding her arrest show that she was denied due 
process of law and the equal protection of the laws guar­
anteed to her under the Constitution of the United States 
and Section 11 of the Constitution of Virginia. She cites, 
as the basis for this assertion, the fact that the newspaper 
boy was permitted to return to the corner and was not 
again required to move on, while she was arrested. She 
states that this proves that the police officer discriminated 
against her in arresting her. Although this objection was 
not stated, assigned or presented as required by Rules of 
Court 1:8, 5:1 §4  and 5:12 §1 (d), the answer to the 
objection is simply that nothing appears from the ordi­
nance itself or from the evidence presented in the trial 
court to show any discriminatory action in this case.

Finally, defendant contends that the evidence was not 
sufficient to support her conviction.

When the sufficiency of the evidence is challenged after 
conviction it is our duty to view it in the light most 
favorable to the prosecution, granting all reasonable in­
ferences fairly deductible therefrom. The judgment should 
be affirmed unless “ it appears from the evidence that such 
judgment is plainly wrong or without evidence to support 
it.” § 8-491, Code, 1950; Crisman v. Commonwealth, 197 Va. 
17, 87 S. E. 2nd, 796; Toler v. Commonwealth, 188 Va. 
774, 51 S. E. 2nd 210.



26

We think the evidence is sufficient to support the judg­
ment of the trial court, and that the judgment is plainly 
right. Defendant knew that a demonstration was taking 
place in the block where she was standing; she had notice 
of it from the handbill which had been given her, and she 
respected its admonition to the extent that she deviated 
from her purpose to go into the store to pay her bill. She 
saw the pickets and their placards; she saw the large 
crowds; she knew that students, who had taken part in the 
demonstrations, had been arrested. She deliberately placed 
herself in an emotion-packed situation, where at any mo­
ment trouble could have erupted, causing danger to the 
defendant and to the others on the sidewalk. She was told 
three times by a uniformed officer to move on; when she 
refused her offense was complete.

The police officer was under no obligation to stand and 
argue with the defendant. To have done so would have de­
feated the very purpose of the ordinance and the reason 
for keeping everyone moving—the maintenance of order. 
Under the circumstances, the officer was called upon to act 
with dispatch and firmness. Since he did not act arbi­
trarily, it is no defense to say that he should have acted 
more judiciously. As was said in the Galpern case, supra:

“ The courts cannot weigh opposing considerations as to 
the wisdom of the police officer’s directions when a police 
officer is called upon to decide whether the time has come 
in which some directions are called for.” (181 N. E., at 
page 574.)

The defendant has been convicted under a valid ordinance 
by competent and sufficient evidence. The judgment of 
conviction is therefore Affirmed.



27

Judgment

VIRGINIA:

In the Supreme Court of Appeals held at the Supreme 
Court of Appeals Building in the City of Richmond on 
Monday the 24tli day of April, 1961.

Record No. 5232

-------------------- --------------------- -----
R uth E. T insley,

Plaintiff in error,
—against—

City of R ichmond,

Defendant in error.

Upon a writ of error and supersedeas to a judg­
ment rendered by the Hustings Court of the City 
of Richmond on the 11th day of April, 1960

This day came again the parties, by counsel, and the 
court having maturely considered the transcript of the 
record of the judgment aforesaid and arguments of coun­
sel, is of opinion, for reasons stated in writing and filed 
with the record, that there is no error in the judgment com­
plained of. It is therefore adjudged and ordered that the 
said judgment be affirmed, and that the plaintiff in error 
pay to the defendant in error thirty dollars damages, and 
also its costs by it expended about its defense herein.

Which is ordered to be forthwith certified to the said 
hustings court.

A Copy, 

Teste:

Clerk.