Shuttlesworth v Birmingham AL Petition for Writ of Certiorari

    I n  t h e

(Emtrt ai %  Intuit States
O ctober T erm , 1964 

No. £ 2.3

F red L. S htjttlesworth ,

— v.-

Petitioner,

Cit y  of B ir m in g h a m .

PETITION FOR W RIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

J ack  Greenberg 
N orman A maker

10 Columbus Circle
New York, New York 10019

P eter A. H all 
Orzell B illingsley , J r.

1630 Fourth Avenue, North 
Birmingham, Alabama

Attorneys for Petitioner



I N D E X

PAGE

Citations to Opinions Below ........... ................ ........ .....  1

Jurisdiction ..„......................................................... ........ . 2

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

Constitutional and Statutory Provisions Involved .... 3

Statement .......        4

How the Federal Questions Were Raised and Decided 
B elow .................................. - ............................................  10

Reasons for Oran ting the Writ .........................    11

I. Petitioner’s Conviction Was Affirmed on a 
Record Containing Ho Evidence of His Guilt 
Contrary to the Due Process Clause of the 
Fourteenth Amendment ....................................  11

II. Petitioner’s Conviction Was Secured Under 
Ordinances Which as Applied to His Conduct 
Are Unconstitutionally Vague ....................   16

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

A ppendix  ......      la

Order and Judgment of the Alabama Court of 
Appeals ......................................................    6a

Order of Alabama Court of Appeals Denying 
Rehearing _____       7a

Orders of the Supreme Court of Alabama ........... 8a, 9a



11

T able of Cases

page

Bouie v. City of Columbia,------U. S .------- , 12 L. ed. 2d
894 (1964) ......................... ........ ...... .............................. 17

Cole v. Arkansas, 333 U. S. 196 (1948) ________ _____ 13
Commonwealth v. Carpenter, 325 Mass. 519, 91 N. E.

2d 666 (1950) ..... .............. .......... ....... ........ .............. . 17
Connally v. General Construction Co., 269 U. S. 385 

(1926) ............................................................................... 17

DeJonge v. Oregon, 299 U. S. 353 (1947) ..................  13
Drummond v. State, 37 Ala. App. 308, 67 So. 2d 280 ..12, 3a

Ex Parte Shuttlesworth, 369 U. S. 35 (1962)  .............. 16

Fields v. City of Fairfield, 375 U. S. 248 (1963) .......  13

Garner v. Louisiana, 368 U. S. 157 (1961) ................... 13

Lanzetta v. New Jersey, 306 U. S. 459 (1939) ............... 17

Phifer v. City of Birmingham, 160 So. 2d 898, cert. den.
160 So. 2d 902 .......... ........ .......... .......... .......... .......... 5,18

Phifer v. City of Birmingham, 6 Div. 930, Ct. of 
Appeals Manuscript ...................................................... 3a

Shuttlesworth v. City of Birmingham, cert. den. 368
U. S. 959 (1962) ......................... .................... .............  16

Shuttlesworth v. City of Birmingham, 373 U. S. 262
(1963) ............................. ................................................ . 16

Shuttlesworth v. City of Birmingham, 376 U. S. 339
(1964) ^ .... .............. 13,16

Taylor v. Louisiana, 370 TJ. S. 154...... ................ .......... . 13
Thompson v. Louisville, 362 U. S. 199 ........ .......... 12,13,17

Wright v. Georgia, 373 IT. S. 284 (1963) ...................12,17



Ill

S tatutes

page

28 U. S. C. §1257(3) ________ __________ _________ ___ 2

General City Code of Birmingham, §1142 (as amended 
by §1136- F) ............................... ............ ........... ....3, 4,10, la

General City Code of Birmingham, §1231 .......... ........ 3, 4,10

Other  A uthorities

American Law Institute, Model Penal Code, Tentative 
Draft, No. 13, p. 1 4__ ____ _____ ____ _______________ 17

Douglas, “Vagrancy and Arrest on Suspicion,” 70 Yale 
L. J. 1 (1960) ............................. .... ....... .......................  17



In  the

(tart uf %  Intirft Stairs
O ctober T erm , 1964 

N o.------

F red L . S h u ttlesw orth , 

— v . —

Petitioner,

City  oe B ir m in g h am , A labam a .

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Alabama Court of Appeals entered in 
the above-entitled case on November 19, 1963, rehearing of 
which was denied on January 7, 1964. A petition for writ 
of certiorari was denied by the Supreme Court of Alabama 
on February 20, 1964 and rehearing was denied on March 
26, 1964.

Citation to Opinions Below

The opinion of the Alabama Court of Appeals (R. 143) is 
reported at 161 So. 2d 796 and is set forth in the appendix 
hereto, infra, p. la. The Supreme Court of Alabama ren­
dered no opinion but its order denying certiorari is re­
ported at 161 So. 2d 799.



2

Jurisdiction

The judgment of the Alabama Court of Appeals (R. 142) 
was entered on November 19, 1963, appendix, infra, p. 6a. 
Application for rehearing was overruled January 7, 1964 
(R. 147), appendix, infra, p. 7a.

A petition for certiorari filed in the Supreme Court of 
Alabama was denied on February 20, 1964 (R. 154), appen­
dix, infra, p. 8a and an application for rehearing was 
denied on March 26, 1963 (154), appendix, infra, p. 9a. 
On June 17, 1964, Mr. Justice Black extended petitioner’s 
time for filing a petition for writ of certiorari in this Court 
to August 23, 1964.

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

Questions Presented

1. Whether petitioner was denied due process of law 
contrary to the Fourteenth Amendment to the Constitution 
of the United States by his conviction on a record contain­
ing no evidence of his guilt.

2. Whether petitioner was also denied due process of 
law by his conviction under ordinances which as applied 
to his conduct are unconstitutionally vague, under the 
Fourteeenth Amendment.



3

Constitutional and Statutory Provisions Involved

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

2. This case also involves Section 1142 of the General 
City Code of Birmingham as amended by Ordinance No. 
1436-F:

S treets and S idew alks to B e K ept O pen for F ree 
P assage.—Any person who shall obstruct any street or 
sidewalk or part thereof in any manner not permitted 
by this code or other ordinance of the City with any 
animal or vehicle, or with boxes or barrels, glass, rub­
bish or display of wares, merchandise or sidewalk 
signs or other like things, so as to obstruct the free 
passage of persons on such streets or sidewalks or 
any part thereof, or who shall assemble a crowd or hold 
a public meeting in any street without a permit, shall, 
on conviction, be punished as provided in Section 4.

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

and Section 1231 of the General City Code of Birmingham:

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



4

Statement

Petitioner, Fred L. Shuttlesworth, a “ notorious person 
in the field of civil rights in the City of Birmingham” (R. 
48) was arrested on the morning of April 4, 1962 outside 
Newberry’s Department Store at 19th Street and 2nd Ave­
nue North in Birmingham, Alabama. He was tried and 
convicted in the City Recorder’s Court of violating Sections 
1142 (as amended by Section 1436-F) and 1231 of the Gen­
eral City Code of Birmingham and sentenced to a fine of 
$100.00 and costs and 180 days at hard labor (R. 1).

On appeal to the Circuit Court of Jefferson County, he 
was charged in a complaint containing two counts. Count 
one charged that F. L. Shuttlesworth:

“ . . . did stand, loiter or walk upon a street or side­
walk within and among a group of other persons so as 
to obstruct free passage over, on or along said street 
or sidewalk at, to-wit: 2nd Avenue, North, at 19th 
Street or did while in said group stand or loiter upon 
said street or sidewalk after having been requested by 
a police officer to move on, contrary to and in violation 
of Section 1142 of the General City Code of Birming­
ham of 1944, as amended by Ordinance Number 1436-F” 
(R. 2).

Count two complained that petitioner:

“ .. . did refuse to comply with a lawful order, signal 
or direction of a police officer, contrary to and in vio­
lation of Section 1231 of the General City Code of 
the City of Birmingham” (R. 2).

In the Circuit Court, he was tried without a jury on October 
29-30, 1962 (R. 15, 93), convicted and sentenced to $100 
and costs, 52 days for failure to pay the fine and costs and 
180 days at hard labor (R. 11).



The Alabama Court of Appeals on November 19, 1963, 
affirmed petitioner’s conviction (R. 142), infra, p. 6a.

James Phifer, arrested simultaneously with Shuttles- 
worth, was tried with him on identical charges in the Cir­
cuit Court (R. 15-16) but his conviction was reversed by 
the Alabama Court of Appeals because of insufficiency of 
evidence, Phifer v. City of Birmingham, 160 So. 2d 898, 
cert. den. 160 So. 2d 902.

At the trial in Circuit Court the evidence offered by the 
City and that offered on behalf of petitioner and his co­
defendant were in substantial contradiction. The City’s 
chief witness, Police Officer Robert Byars who arrested 
petitioner, testified that about 10:30 a.m. on the morning of 
the arrest, he was standing on 19th Street just north of the 
alley between 2nd and 3rd Avenue North adjacent to New­
berry’s Department Store (R. 17). He saw petitioner and 
Phifer walking south on the west side of 19th Street toward 
2nd Avenue “ in company with three or four other people” 
(R. 17). Officer Byars then entered the alley entrance to 
Newberry’s store located on the west side of 19th Street 
just north of the store (R. 17), walked through the store 
to the front entrance at the northwest corner of 2nd Ave­
nue and 19th Street North (R. 18). From inside the en­
trance doorway, he looked out on the street (R. 18, 27) and 
saw petitioner “ standing with a group of some ten or twelve 
people all congregated in one area” (R. 18). He observed 
the group “ for a minute to a minute and a half while they 
stood” (R. 19). The group was “ standing and listening and 
talking” (R. 18). “ On some occasions,” according to his 
testimony, “ people who were walking in an easterly direc­
tion on the north side of 2nd Avenue had to go into the 
street to get around the people who were standing there” 
(R. 18).

0



6

He testified that he then “walked out of the store and in­
formed the group of people they would have to move on and 
clear the sidewalk so as to allow free passage and not to 
obstruct it” (R. 19). “ [S]ome of the group began to move 
gradually away” (19). “ Not all of them began to move” 
and he “waited for a short time and again informed them 
they would have to move . . . ” (19). At this point, peti­
tioner Shuttlesworth is reported to have said “you mean to 
say we can’t stand here on the sidewalk” or words to that 
effect (19). Officer Byars “ said nothing in return,” “ hesi­
tated again for a short time and informed them for the 
third and last time . . . they would have to move” (19). 
Petitioner then supposedly said “do you mean to tell me 
we can’t stand here in front of this store?” at which time 
the officer informed him that he was under arrest (19). 
According to Byars’ testimony, Shuttlesworth then said, 
“ Well, I will go into, the store” and started into the en­
trance of Newberry’s Store (19). The officer stated: “he 
got inside the door and I reached and got him and told him 
again he was under arrest” (19).

Petitioner was then placed into custody “ and taken to 
the west curb to await transportation to the City Jail” 
(R. 20).

Pedestrian traffic “was normal for a Wednesday at that 
particular time of day” (R. 21). When Byars first saw the 
group, they were walking south and not violating any ordi­
nance or obstructing any traffic (R. 27). After he came out 
of the store and spoke to the group, he testified that “ every­
body else was in motion except the Defendant, Shuttles­
worth, who had never moved” (R. 30). “No other person 
made any statement to [him] other than the defendant, 
Shuttlesworth . . . ” (R. 20-21).

Other police officers corroborated Byars’ testimony. Offi­
cer Renshaw testified that he first saw Byars when he was



7

talking to the group (R. 49); that he got off his motorcycle 
and walked over to the crowd (R. 49-50); that he heard 
Byars say, “ For the third and last time, I am telling you 
you got to . . . move on, or words to that effect” (R. 51); 
that there were “ eight or ten or twelve” persons in the 
crowd, “ all colored” (R. 51) and that he recognized Shut- 
tlesworth and assisted in his arrest (R. 50).

Officer Hallman testified that Byars called him and Officer 
Davis over from the southeast corner of 2nd Avenue and 
19th Street North and that he went over and just as he 
stepped on the curb he heard Byars say, “ I am telling you 
for the third time you will have to move on, you are block­
ing the crosswalk” (R. 62). He testified that there were 5 or 
6 persons in the group and they all dispersed upon direc­
tion except Shuttlesworth (Id.).

f
Officer Byars testified that Shuttlesworth offered “no re­

sistance” (R. 31) to the arrest. Another officer testified 
that force was not necessary in making the arrest (R. 50); 
that petitioner was “ a docile prisoner” (R. 58) and that he 
did not give the arresting officers “ any difficulty at all” 
(R. 58).

The evidence for the defense presented a very different 
version of what occurred. The petitioner testified that his 
co-defendant Phifer and a man named James Armstrong 
had been in federal court that morning and after leaving 
there walked down 19th Street “walking as pedestrians 
walk approaching the light at the intersection of 19th Street 
and 2nd Avenue North . . . ” (R. 115). As they approached 
the intersection, “ [ajlmost instantaneously or simultane­
ously with me as I got practically to the corner the officer 
came out of this door to my right and stepped in front of 
me” (Id.). The officer then said “move on” whereupon peti­
tioner inquired “move where officer” (Id.). Byars said 
“ anywhere but here, but move on” at which point peti­



tioner said “all right, I will go into the store” (Id.). At this 
point, petitioner turned and walked into the corner en­
trance to Newberry’s store and had gotten approximately 
“ four or five steps inside the store” when the officer said 
“you are under arrest” (Id.).

Petitioner Shuttlesworth further testified that it was the 
police officer who stopped him; he “would have had maybe 
another step or two to the curb” (E. 125). He stated that 
he never got to the corner and that “ [h]ad I walked on I 
would have walked into him” (E. 116). The first time that 
he was informed that he was under arrest was when the 
officer stopped him in the store; the officer had not men­
tioned arrest before then (E. 121). Petitioner then con­
tinued :

Q. When were you told why you were arrested? A. 
When was I told why ?

Q. Yes, on what charge you had been arrested on? 
A. I believe the only time that I heard of it—some 
officer came to the car as Phifer and I were sitting 
inside discussing what they were going to put against 
us or something like that.

Q. They were discussing the charge to put against 
you? A. Yes (E. 119-120).

Petitioner’s co-defendant, Eev. Phifer, testified that he 
and Eev. Shuttlesworth didn’t stand on the corner at all 
(E. 131) ; that contrary to Officer Byars’ testimony, Byars 
did not speak three times to petitioner or to the crowd 
(Id.);  that in fact “ [w]e were approaching the corner. 
We hadn’t stopped” (E. 132); that Byars stepped around 
in front of Shuttlesworth “before we got to the curb” (Id.) 
and that he addressed his words only to Shuttlesworth (Id.).

Armstrong testified that he was with Shuttlesworth and 
Phifer on the morning of April 4th and that Byars came



9

out of Newberry’s store when “ [w]e were still moving com­
ing to the corner” (R. 86), “ placed himself in front of . . . 
Reverend Shuttlesworth” so he couldn’t move (R. 86) and 
pointed to Shuttlesworth and told him to “ move on” (R. 85). 
On cross-examination, he stated there were only four or 
five people in the group coming from the courthouse and 
“ some of them were behind and when they got to the inter­
section they did not meet any friends there nor any one 
that knew Rev. Phifer or Rev. Shuttlesworth” (R. 90). 
When asked: “How long were you standing at that inter­
section,” he answered: “ I was walking to the intersection. 
I didn’t get a chance to stand” (R. 91).

Another defense witness, Rev. Norris, testified that he 
was walking about 5 feet behind Shuttlesworth (R. 94); 
that when he first saw Officer Byars he was “ passing the 
door just before you get to the corner” on the inside of 
Newberry’s store as he, Norris, was passing on the outside 
(R. 94); that Byars came out from the entrance to New­
berry’s store walked around in front of Shuttlesworth and 
said “move on” whereupon Shuttlesworth said “ move where 
officer” and Byars replied “ anywhere but here” (R. 94). 
Norris testified that the only crowd that collected consisted 
of white and Negro persons standing there watching the 
officer and Shuttlesworth (R. 99), that there was “ quite a 
number out there on that corner observing this arrest” 
(R. 100).

Another witness, Simpson Hall, testified that: “Before 
the Reverend Phifer and Shuttlesworth could get to the 
light he come and kind of stepped in front of Reverend 
Shuttlesworth and told him to move on” (R. 110). He and 
another witness, Walter King, testified that they only heard 
the officer ask Shuttlesworth to move one time (R. 110-106).

The entire arrest incident from the time the officer walked 
up to the intersection until the time he told Shuttlesworth 
that he was under arrest took less than a minute (R. 133).



10

The Court of Appeals did not attempt to reconcile the 
conflicts in testimony, holding that “ the grounds set out and 
argued in appellant’s (petitioner’s) motion for new trial 
. . . were properly overruled as sufficient evidence was 
introduced for the court to find the defendant guilty under 
the complaint” (R. 145).

How the Federal Questions Were Raised 
and Decided Relow

Petitioner filed a motion to quash the complaint (R. 3) 
alleging that “ the allegations of the complaint, and each 
count thereof, are so vague and indefinite, as not to apprise 
this defendant of what he is called upon to defend” ; that 
“ Sections 1231 and 1142 of the 1944 General City Code of 
Birmingham, under which said complaint is brought, as 
applied to this defendant, violates . . . the First and Four­
teenth Amendments to the Constitution of the United States 
of America; “ that the aforesaid Sections 1231 and 1142 
as applied to the defendant is unconstitutional on its face, 
and that it is so vague as to constitute a deprivation of 
liberty, without due process of law, in violation of the 
Fourteenth Amendment of the United States” (R. 3-4).

Petitioner also filed a demurrer alleging abridgment of 
his rights of free speech and assembly under the First and 
Fourteenth Amendments; a violation of the due process 
clause of the Fourteenth Amendment because of unconsti­
tutional vagueness of the ordinances and a violation of the 
privileges and immunities and equal protection clauses of 
the Fourteenth Amendment (R. 5-6).

At the close of the City’s case (R. 81) and again at the 
close of all the evidence (R. 137), petitioner filed a motion 
to exclude the evidence on the ground that there was no 
evidence to support the complaint and that all the evidence



11

showed was that petitioner was exercising rights and priv­
ileges guaranteed him by the First and Fourteenth Amend­
ments (R. 7).

At the end of trial (R. 138), petitioner filed a motion for 
new trial renewing the allegations contained in the previous 
motions (R. 8-9).

All of petitioner’s motions were overruled and petitioner 
was found guilty as charged (R. 10-11).

Petitioner renewed his federal constitutional claims by 
assignments of error to the Alabama Court of Appeals 
(R. 141) which without consideration of his constitutional 
claims affirmed his conviction (R. 142) infra, pp. la-5a. The 
Alabama Supreme Court denied petitioner’s timely filed 
application for writ of certiorari (R. 154) and overruled 
his application for rehearing (Id.) infra, pp. 8a-9a.

Reasons for Granting the Writ

The decision below conflicts with applicable decisions of 
this Court on important constitutional issues.

I

Petitioner’ s conviction was affirmed on a record con­
taining no evidence o f  his guilt contrary to the due 
process clause o f  the Fourteenth Amendment.

In affirming petitioner’s conviction, the Alabama Court 
of Appeals did not consider the evidence contradicting the 
City’s version of the circumstances leading to petitioner’s 
arrest but merely upheld the Circuit Court’s overruling of 
petitioner’s motion to exclude the evidence, stating that 
“ [w]hen there is sufficient evidence on the part of the 
prosecution to make out a prima facie case, a motion to



12

exclude the evidence should be overruled. Drummond v. 
State, 37 Ala. App. 308, 67 So. 2d 280” (R. 145).

But fully accepting the City’s version of the facts, there 
is no evidence that petitioner committed a crime. He was 
charged under the language of the second paragraph of 
section 1142 for obstructing free passage or for standing 
or loitering after being reqeusted to move on (R. 2). But 
neither petitioner nor anyone else was arrested for obstruc­
tion of passage along the sidewalk for, as officer Byars 
testified, everyone obeyed his order to move (R. 37) “ except 
the Defendant Sliuttlesworth, who had never moved” (R. 
30). Thus, Shuttlesworth’s arrest appears to have been 
made only for failing to move when ordered to do so. But 
the evidence shows that petitioner did move—he started 
into the store; in the words of another officer, he “ [j]ust 
walked off with the rest of the crowd” (R. 54). And if, as 
the City says, petitioner had already been placed under 
arrest when he began to move, it is clear that the only 
possible reason for his arrest was that he was the only 
person who made any statements to the officer while he 
was allegedly issuing his command to the crowd to move. 
According to the City’s testimony, those statements were 
“ do you mean to tell me we can’t stand here in front of 
this store” (R. 19) and “well, I will go into the store” (19). 
Even if these peaceful statements (and there is no evidence 
that petitioner was anything other than peaceful) could 
be construed as arguing with the policeman, petitioner still 
did nothing criminal. Cf. Thompson v. Louisville, 362 U. S. 
199, 206; Wright v. Georgia, 373 U. S. 284, 286.

Petitioner’s conduct, which consisted of making state­
ments to a police officer and attempting to go into New­
berry’s store, is certainly not evidence of standing or loiter­
ing after being requested to move or of failing to comply 
with the lawful order of a policeman. To convict petitioner



13

on. no evidence of substantial elements of the crime with 
which he was charged is a violation of due process. Thomp­
son v. Louisville, , supra; Garner v. Louisiana, 368 U. S. 
157 (1961) ;  Taylor v. Louisiana, 370 U. S. 154; Fields v. 
City of Fairfield, 375 U. S. 248 (1963). And if it could some­
how be assumed that these acts were criminal, they were 
not charged. It is equally a violation of due process to 
convict a man of a crime not charged. DeJonge v. Oregon, 
299 U. 8. 353, 362 (1937); Cole v. Arkansas, 333 TJ. S. 196, 
201 (1948); Shuttlesworth v. City of Birmingham, 376 U. S. 
339 (1964).

But the evidence presented on behalf of the defense easts 
strong doubt on the version of the arrest given by the 
City. Moreover, none of the contradictory testimony 
offered by the defense was challenged by the city’s attor­
ney on cross-examination (R. 90-91; 100-101; 109; 113; 
121-124; 127-128; 36). The only things agreed upon by the 
respective witnesses for the city and the defense were the 
time and place of the incident and the fact of petitioner’s 
arrest.

Thus, the number of persons involved was disputed, 
being estimated by the city’s witnesses as 10 to 12 (R. 18, 
40, 51, 76), by the defense witnesses as no more than 4 
or 5 (R. 84, 86, 90).1 Also disputed is why the crowd col­
lected, the city’s version being that petitioner stopped and 
congregated with a group of 10 to 12 persons who were 
“ just standing and listening and talking” (R. 18) while 
the defense testified that no persons or friends met peti­
tioner and his companions at the eorner (R. 90) and fur­
ther that.no crowd collected until the police officer entered

1 In fact, Officer Byars testified that when he first saw petitioner 
he was in the company of only 4 or 5 other persons and he did not 
know “where the. additional people . . . came from” (R. 40). But 
his.fellow officer, Hallman, testified, that there were only 5 or 6 
people in the group talking to Byars (R. 62).



14

the picture (R. 99). Whether the crowd was all Negro 
(R. 51) or composed of whites and Negroes (R. 99, 106) 
was also at issue as was the length of time during which 
the incident occurred, Officer Byars having testified that 
he stood inside the entrance door to Newberry’s watching 
petitioner and his companions assembled on the corner 
“ for a minute to a minute and a half” (R. 18) and spent 
another “ minute or minute and a half talking to them out­
side trying to encourage them to move” (R. 34) while peti­
tioner and the other defense witnesses testified that they 
were accosted by Officer Byars while in motion approach­
ing the corner and did not stop and stand on the corner 
(R. 91, 110, 116, 131-132) and thus the entire arrest inci­
dent took less than a minute (R. 118, 133). Also directly 
challenged by the defense evidence was the testimony of 
the primary arresting officer that he spoke to the allegedly 
assembled crowd three times requesting them to move on 
(R. 19); the witnesses for the defense testified uniformly 
that Officer Byars emerged from Newberry’s store and 
placed himself directly in front of petitioner and said to 
him once only and to no one else “ Move on” (R. 94, 104, 
106, 110, 115). Whether petitioner was placed under arrest 
before entering the store was also disputed as Byars testi­
fied that Shuttlesworth was arrested before he moved (R. 
21) while petitioner (R. 121) and others (R. 97, 109) testi­
fied that he was not placed under arrest until he started 
into the store.

In addition, Byars testified on direct examination that 
petitioner’s group was standing in the western half of the 
western crosswalk of 2nd Avenue and 19th Street North 
(R. 18) and that as he was observing them from the inside 
of Newberry’s store “ on some occasions people who were 
walking in an easterly direction on the north side of 2nd 
Avenue had to go into the street to get around the people 
who were standing there”  (R. 18). But on cross-examina-



15

tion the defense counsel diagrammed the scene on a black­
board (R. 21) and Officer Byars drew an X  to mark the 
spot where petitioner’s group was allegedly congregated 
(R. 22). He then testified as follows:

Q. I saw (sic) assuming the defendants were stand­
ing where you drew that little mark there, that would 
have left more than half of this north-south crosswalk 
free, would it not? A. That is true.

Q. And they didn’t block the east-west crosswalk at 
all did they? A. They did not (R. 22-23).

These discrepancies were glossed over completely by the 
Alabama Court of Appeals but the record taken as a whole 
makes it clear that the version of the facts given by the 
witnesses for the defense is the correct version. In any 
event, petitioner need not rely on his own evidence, though 
it demonstrates how specious were the charges against 
him. Even under the state’s version he was guilty of no 
crime. See pp. 12 to 13, supra.

The record moreover supports an inference that the 
real reason for petitioner’s arrest and conviction was his 
civil rights activities in the City of Birmingham. At the 
time of his arrest there was a selective buying campaign 
going on in Birmingham on the part of the Negro com­
munity (R. 25, 66, 81, 125, 136). Defense counsel attempted 
to show that petitioner’s arrest was part of a police tactic 
of harassment in retaliation for Ms course of civil rights 
conduct which had resulted in numerous other arrests by 
the Birmingham Police Department (R. 25, 48, 80, 118, 
119). The Circuit Court sustained the City’s objections to 
this line of questioning (R. 119) and the Court of Appeals 
affirmed (R. 146). However, the only plausible explana­
tion of this conviction on no evidence is that it was part 
of a campaign of harassment against him for his civil



16

rights activities (R, 48). This should be considered with 
petitioner’s many arrests by the Birmingham police over 
a number of years (R. 48)2 and the number of occasions 
that these arrests and subsequent convictions have been 
brought to this court.3 Only in this context does such a 
baseless prosecution make sense.

II

Petitioner’s conviction was secured under ordinances 
which as applied to his conduct are unconstitutionally 
vague.

As demonstrated in I, supra, what caused petitioner’s 
arrest on this occasion (aside from his civil rights activi­
ties) was that he “ talked back” to the officer by asking him 
(taking the City’s evidence as a true version of the events 
that transpired) “ do you mean to tell me that we can’t 
stand here in front of this store” (R. 19) and then at­
tempted to enter Newberry’s store when ordered to move

2 1958: ( 1) Reckless driving; 2) Consipiring to commit a breach
of the peace; 3) Inciting a violation of disorderly con­
duct ordinance)

1960: ( 1) Speeding; 2) Aiding and abetting law violation; 
3) Giving false information to officer)

1961: ( 1)Violation of peace bond ordinance; 2) Refusing to 
obey lawful command of officer and interfering with 
officer in discharge of duty)

1962: (Loitering after warning and failing to obey officer (this 
case))

1963: ( 1) Parading without a permit; 2) Parading without a 
permit) :

3 Shuttlesworth v. City of Birmingham, cert. den. 368 U. S. 959 
(1962) (Conviction for disorderly conduct); Ex Parte Shuttles­
worth, 369 U. S. 35 (1962) (Application for writ of habeas corpus 
after affirmance of conviction of disorderly conduct) ; Shuttlesworth 
v. City of Birmingham, 373 U. S. 262 (1963) (Conviction for aiding 
and abetting violation of trespass ordinance) ; Shuttlesworth v. 
City of Birmingham, 376 U. S. 339 (1964) (Conviction of inter­
fering with officer in discharge of his duty affirmed by Ala. Court 
of Appeals on basis of City’s assault ordinance).



17

on. But petitioner was charged under two ordinances, one 
of which makes it a crime to stand or loiter upon a street 
after being told to move (Section 1142) the other of which 
makes it a crime not to comply with a lawful order of a 
police officer (Section 1231).4

Petitioner could not know that (1) asking a question 
and (2) going into the store amounted to standing or 
loitering after an order to move, the conduct interdicted 
by Section 1142 or failing to obey the lawful command of 
an officer, the conduct proscribed by Section 1231. Peti­
tioner, therefore, was not given adequate prior warning 
by the language of either of these ordinances that his 
peaceful inquiry or his entering the store was a violation 
of their terms. Thus his conviction under these or­
dinances is contrary to prior decisions of this court, Con­
nolly v. General Construction Co., 269 U. S. 385, 391 
(1926); Lametta v. New Jersey, 306 IT. S. 459 (1939); 
Wright v. Georgia, 373 U. S. 284 (1963); Bouie v. City of
Columbia,------ U. S . -------, 12 L. Ed. 2d 894 (1964). See
also Thompson v. Louisiana, 362 U. S. 199, 206 citing Lan- 
setta, supra. Indeed, the Thompson case contains ele­
ments of both the “ no evidence” and “ lack of fair warn­
ing” aspects of procedural due process in that the defen­
dant there made peaceful inquiry of the arresting officer 
as to what was wrong with his conduct and was charged 
and convicted under an ordinance that did not apprise him

4 The validity of such ordinances restricting as they do the right 
to make peaceful and ordinary use of the public streets is open to 
question. See Commonwealth v. Carpenter, 325 Mass. 519, 91 N. E. 
2d 666 (1950). This is particularly true where the ordinances con­
tain no guides to limit police action which “often reflect(s) affront 
to the policeman’s personal sensibilities rather than vindication of 
the public interest.” American Law Institute, Model Penal Code, 
Tentative Draft No. 13, p. 14. See also Douglas, “Vagrancy and 
Arrest on Suspicion,” 70 Yale L. J. 1 (1960).



18

of the fact that what he was shown to have been doing 
came within the ambit of its proscription.

With particular regard to Section 1231 of the City 
Code, its inapplicability to defendant’s conduct is demon­
strated by the Alabama Court of Appeals’ opinion in the 
companion case of Phifer v. City of Birmingham, 160 So. 
2d 898. In reversing Eev. Phifer’s conviction, the Court 
stated:

“The charge in the second count of the complaint 
is for a violation of Section 1231, of the General 
City Code of Birmingham. This section appears in 
the chapter regulating vehicular traffic and provides 
for the enforcement of the orders of the officers of 
the police department in directing such traffic. There 
is no suggestion in the evidence that the defendant 
violated any traffic regulation of the city by his 
refusal to move away from Shuttlesworth when 
ordered to do so.” 160 So. 2d at 901.

Likewise, there is no evidence that petitioner violated 
any traffic regulation of the City by making peaceful in­
quiry of the officer and attempting to enter Newberry’s 
store. Thus, the application of Section 1231 to petitioner’s 
conduct to sustain his conviction requires that that con­
viction be voided for unconstitutional vagueness. Cer­
tiorari should be granted because petitioner was convicted 
under ordinances which, as shown by the proof, had noth­
ing to do with his conduct which was at all times peaceful 
and lawful.



19

CONCLUSION

This case is another instance of petitioner’s unfair 
treatment by state authority because of his civil rights 
activities in Birmingham. That he could be arrested, 
brought to trial and convicted on the basis of what is 
shown on this record is incredible and denies fundamental 
precepts of due process required by the Fourteenth Amend­
ment. Such a conviction should not be permitted to stand.

It is therefore, respectfully submitted that the petition 
for writ of certiorari should be granted.

Respectfully submitted,

J ack G reenberg

N orman A m aker

10 Columbus Circle
New York, New York 10019

P eter A . H all

Orzell B illingsley , J r.
1630 Fourth Avenue, North 
Birmingham, Alabama

Attorneys for Petitioner



A P P E N D I X



la

APPENDIX

Opinion o f  the Alabama Court o f  Appeals

T he  S tate oe A labama— J udicial D epartm ent  

T he  A labam a Court oe A ppeals 

O ctober T erm , 1963-64
6 Div. 929

F. L. S h u ttlesw orth ,

—v.—

C ity oe B ir m in g h a m .

Appeal from Jefferson Circuit Court

P er Cu r ia m :

Appellant, Fred L. Shuttlesworth, appeals from a convic­
tion by the Circuit Court of Jefferson County, Alabama, 
of violating Sections 1142 and 1231 of the General City 
Code of Birmingham, Alabama. The case was heard by 
the Circuit Judge sitting without a jury. The first count 
of the complaint charges the appellant with loitering on a 
street corner with others so as to obstruct free passage 
along the sidewalk. The other count charges appellant with 
failure to obey the lawful command of a police officer.

Section 1142 of the General City Code of Birmingham, 
Street and Sidewalks to Be Kept Open For Free Passage, 
reads:

“Any person who shall obstruct any street or side­
walk or part thereof in any manner not permitted by 
this code or other ordinance of the city with any animal



2a

or vehicle, or with boxes or barrels, glass, trash, rub­
bish or display of wares, merchandise or sidewalk 
signs, or other like things, so as to obstruct the free 
passage of persons on such street or sidewalks or any 
part thereof, or who shall assemble a crowd or hold a 
public meeting in any street without a permit, shall, on 
conviction, be punished as provided in Section 4.

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

Section 1231 of the General City Code of Birmingham, 
Obedience to Police, reads as follows:

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

The evidence, as introduced by the City, tended to show 
that the defendant was a member of a crowd of about ten 
or twelve people standing on the corner of 19th Street and 
2nd Avenue, North, in the City of Birmingham, and that 
this crowd was blocking the sidewalk to such an extent that 
some of the other pedestrians were forced to walk into the 
street to get around them. The crowd was accosted by one 
Officer Byars and asked to clear the sidewalk so as not to 
obstruct pedestrian traffic. The evidence further showed 
that the crowd remained and when requested to disperse 
for the third time by Officer Byars, defendant Shuttlesworth 
said, “ You mean to tell me we can’t stand here in front of 
this store?” at which time Officer Byars informed the defen­
dant that he was under arrest. Officer Byars testified that



3a

at the time of the arrest everyone had moved or was moving 
away except Shuttlesworth. After being told that he was 
under arrest, Shuttlesworth moved away saying, “Well I 
will go into the store.” Officer Byars then followed Shut­
tlesworth into Newberry’s Department Store and took him 
into custody.

The appellant’s first two assignments of error addressed 
to the action of the lower court in overruling appellant’s 
motion to Quash and Demurrers to the complaint were 
overruled on the authority of Phifer v. City of Birmingham, 
6 Div. 930, Ct. of Appeals Manuscript, which case was com­
bined and tried with this one.

The third assignment of error presented by appellant is 
that the Court erred in denying and overruling the defen­
dant’s motion to exclude the testimony and for judgment. 
When there is sufficient evidence on the part of the prose­
cution to make out a prima facie case, a motion to exclude 
the evidence should be overruled. Drummond v. State, 37 
Ala. App. 308, 67 So. 2d 280.

Appellant’s fourth assignment of error was that the court 
erred in denying and overruling defendant’s motion for a 
new trial. All the grounds set out and argued in appellant’s 
motion for new trial, except ground 11, were grounds of 
a general nature and were properly overruled as sufficient 
evidence was introduced for the court to find the defendant 
guilty under the complaint.

The 11th ground of appellant’s motion for a new trial is 
the same as his fifth assignment of error and reads:

“ The court erred in sustaining the objections by the 
City of Birmingham as to reasons for the arrest and 
conviction of the appellant, especially regarding his 
civil rights activities.”

The following objections and rulings of the court thereon 
are alleged to be error by the appellant:



“ Q. There was a trial then pending in the Federal 
Court, is that correct? A. That’s right, on my release 
from jail.

“ Q. Release from jail? What were the circumstances 
of your being in there?

“Mr. Walker: We object, Tour Honor. That has 
no bearing on this case.

“ Mr. Hall: If Your Honor, please, we insist it is 
very pertinent. It goes to our theory the reason for 
the arrest and the heavy penalty.

“Mr. Walker: Tour Honor, this is getting far 
afield from the charge.

“ The Court: Sustain the objection.
“ Mr. Hall: We want an exception, Tour Honor.

“ Q. Was there wide publicity given to this Federal 
hearing? A. Tes.

“ Q. Had it been published in the newspapers? A. 
It had.

“ Q. Was there publicity over the radio and by way 
of the television?

“Mr. Walker: We object to this.
“The Court: Sustained.
“Mr. Walker: It serves no purpose.
“Mr. Hall: Exception, Your Honor.

“ Q. How many times have you been arrested by the 
police of the City of Birmingham because of your civil 
rights activities?

“ Mr. Walker: We object, your Honor. Immaterial.
“ The Court: Sustained.
“ Mr. Hall: We except, Tour Honor.”



“ Q. Why was it necessary for yon to leave 19th 
Street and 2nd Avenue and go to 16th Street and 5th 
Avenue to get a cup of coffee?

“ Mr. Walker: We object to that, Your Honor, why. 
“ Mr. Hall: Mr. Walker brought it out on cross- 

examination. He made a big show of the distance. 
“ The Court: Leave it out.
“ Mr. Hall: We want an exception, Your Honor.”

The sustaining of the objections to the foregoing ques­
tions was proper as such questions were irrelevant and 
immaterial to the issues involved.

The trial court, therefore, did not err by sustaining such 
objections.

The judgment of the Circuit Court is 
Affirmed.

5a



6a

Order and Judgment o f  the Alabama Court o f  Appeals

T he  S tate of A labama— J udicial D epartm ent  

T h e  A labama C ourt of A ppeals 

O ctober T erm , 1964
6 Div. 929

F. L. S h u ttlesw orth ,

----V —

Cit y  of B ir m in g h a m .

Appeal from Jefferson Circuit Court

January 25, 1963 

Transcript Filed

April 18, 1963

Come the parties by attorneys, and submit this cause on 
briefs for decision.

November 19, 1963

Come the parties by attorneys, and the record and mat­
ters therein assigned for errors, being submitted on briefs 
and duly examined and understood by the court, it is con­
sidered that in the record and proceedings of the Circuit 
Court there is no error. It is therefore considered that the 
judgment of the Circuit Court be in all things affirmed. It 
is also considered that the Appellant pay the cost of appeal 
of this court and of the Circuit Court.



7a

Order o f  Alabama Court o f  Appeals Denying Rehearing 

January 7, 1964

It is ordered that the application for rehearing be and 
the same is hereby overruled.

Per Curiam.



8a

Orders of the Supreme Court of Alabama

T h e  S uprem e  Court of A labama 

Thursday, February 20, 1964 

The Court Met Pursuant to Adjournment 

Present: All the Justices

6th Div. 65

Ex Parte: Fred L. Shuttlesworth 

P etition  for W rit of Certiorari to C ourt of A ppeals 

(Ee: Fred L. Shuttlesworth vs. City of Birmingham) 

Jefferson Circuit Court

Come the parties by attorneys and the Petition for Writ 
of Certiorari to the Court of Appeals being submitted on 
briefs and duly examined and understood by the Court, it 
is considered and ordered that the Writ be and the same 
is hereby denied and the petition dismissed at the cost of 
the petitioner, for which costs let execution issue accord­
ingly.

No Opinion.



9a

Thursday, March 26, 1964 

T h e  S uprem e  C ourt of A labama 

Thursday, March 26, 1963 

The Court Met Pursuant to Adjournment 

Present: All the Justices

6th Div. 65

Ex Parte: Fred L. Shuttlesworth 

P etition  for W rit of Certiorari to C ourt of A ppeals 

(Re: Fred L. Shuttlesworth vs. City of Birmingham) 

Jefferson Circuit Court

I t I s Ordered that the application for rehearing filed in 
the above styled cause on March 6, 1964, be and the same 
is hereby overruled.