Shuttlesworth v Birmingham AL Brief in Reply to Petition for Writ of Certiorari

    IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1963.

No. 168.

FRED L. SHUTTLESW ORTH,
Petitioner,

vs.
CITY OF BIRMINGHAM, 

Respondent.

RESPONDENT’S BRIEF IN REPLY TO PETI­
TIONER’S BRIEF ON WRIT OF CERTIORARI TO 

THE COURT OF APPEALS OF ALABAMA.

J. M. BRECKENRIDGE,
600 City Hall Building, 

Birmingham 3, Alabama, 
Attorney for Respondent, 

City of Birmingham.

St . L ouis L a w  P k in ting  Co., I nc ., 415 N. Eighth Street. CEntral 1-4477.



TABLE OF AUTHORITIES.

Accardo v. State, 268 Ala. 293, 105 So. 2d 865.............. 2

Barbour v. State of Georgia, 249 IT. S. 454, 39 S. Ct.
316, 317...............................................................................  4

District of Columbia v. Little, 339 U. S. 1, 70 S. Ct.
468 .....................................................................................  8

Duckett v. State, 257 Ala. 589, 60 So. 2d 357................ 3

Ex Parte Cranmore, 273 Ala. 4, 129 So. 2d 688...............  3
Ex Parte Davis, 269 Ala. 58, 110 So. 2d 306...................  3
Ex Parte Hall, 255 Ala. 98, 50 So. 2d 264.......................  6

John v. Paullin, 231 U. S. 583, 34 S. Ct. 178, 179, 58 
L, Ed. 381................... ...................................................... 3

Ladd v. State, 266 Ala. 586, 98 So. 2d 59.........................  3
Louisville & Nashville Railroad Company v. Wood­

ford, 234 IT. S. 46, 34 S. Ct. 739, 741...........................  4

McDonald v. Amason, 267 Ala. 654, 104 So. 2d 719. .. . 3
Michel v. State of Louisiana, 340 IT. S. 832, 71 S. Ct.

4 5 ..............................................'. .'...................................  4
Monk v. Birmingham, 87 F. Supp. 538...........................  7

Smiley v. Birmingham, 255 Ala. 604, 52 So. 2d 710. . . 7
Smith v. State, 264 Ala, 264, 86 So. 2d 842.....................  3
State v. Taylor, 18 A. 2d 36, 38 N. J. Super. 6 ...............  18
Stovall v. State, 257 Ala. 116, 57 So. 2d 641.................  3

Taylor v. City of Birmingham, 35 Ala. App. 133, 45 
So. 2d 53, cert, den., 253 Ala. 369, 45 So. 2d 60, cert, 
den., 340 IT. S. 832, 71 S. Ct, 45...................................  4

Whitney v. People of State of California, 274 U. S.
357, 47 Sup. Ct. 641........................................................  4. 5



Statutes.

Acts of the Regular Session of the Legislature of Ala­
bama of 1943, page 183..................................................  7

Code of Alabama, 1940, Title 37, Section 587.................  (i
Constitution of the United States:

14th Amendment..............................................................  5
General City Code of Birmingham, Section 6. . . . . . .  .7,14
General City Code of Birmingham, Section 856... 6, 8, 9,14
General City Code of Birmingham, Section 910............7,17
34 Stat. 157, 159, Sec. 11..................................................... 8
28 IT. S. C., Section 1257 (3) . ......................................... 1,5

Rule.
Supreme Court Rule? 32



IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1963.

No. 168.

FRED L. SHUTTLESW ORTH,
Petitioner,

vs.
C ITY OF BIRMINGHAM,

Respondent.

RESPONDENT’S BRIEF IN REPLY TO PETI­
TIONER’S BRIEF ON WRIT OF CERTIORARI TO 

THE COURT OF APPEALS OF ALABAMA.

Petitioner’s brief refers correctly to the reporter cita­
tions of the opinions below. They are 149 So. 2d 921 and 
149 So. 2d 923.

Under the heading “ Jurisdiction”  respondent rests his 
claim for jurisdiction of this Court on 28 United States 
Code, Section 1257 (3) stating that “ Petitioner having 
asserted below and claiming here the deprivation of rights, 
privileges and immunities secured by the Constitution of 
the United States.”  The record does not bear out the



—  2 —

statement of Petitioner. Petitioner did not raise any issue 
whatsoever, constitutional or otherwise before the Su­
preme Court of Alabama, the Court of last resort in this 
state. He completely ignored Supreme Court Rule 32, 
which mandatorily requires the dismissal of any petition 
for certiorari not filed as required by this rule. An exam­
ination of the cases hereinafter cited will show that the 
Supreme Court of Alabama has always considered that 
a violation of this rule under the same conditions that 
Petitioner violated it requires the Court to dismiss a peti­
tion for certiorari. This rule has been applied equally 
against all litigants since its adoption as a rule of the 
Supreme Court. Does the Petitioner desire equal treat­
ment of the Supreme Court of Alabama with other liti­
gants or does he insist that he should receive preferential 
treatment? Should he expect the Supreme Court of Ala­
bama to take the position that he need not comply with 
the mandatory rules of that Court? If so, on what grounds 
does he claim preferential treatment ? Certainly under 
the decisions of this Court the Supreme Court of Alabama 
as well as other state agencies is required to apply their 
rules and the law without regard to race, religion or creed. 
The Petitioner has repeated the word “ discretionary”  in 
relation to the Alabama Supreme Court rule which he 
ignored apparently in the hope that this Court will hold 
that the application of such rule is discretionary. But 
the application of the rule is not discretionary. If it were 
discretionary, should the rule be applied to Jones and 
waived for Smith? The rule cannot be said to have been 
adopted or enforced because of so called civil rights liti­
gation because it long anti dates the reversal of the sepa­
rate but equal doctrine by this Court and has consistently 
been enforced over the years in all cases civil and crim­
inal where certiorari to the Alabama Court of Appeals 
was applied for. Footnote 11 on page 25 of Respondent’s 
brief seems to indicate that one may look outside the



—  3 —

record for the reason why paper other than transcript 
paper was used and attempts to explain it by a statement 
that an “ extremely heavy volume of civil rights litiga­
tion (is) handled by only a very few lawyers in some 
states . . We submit that such is not the case and 
if it were so, it would not abrogate a rule of Court appli­
cable to all alike, the busy, those with leisure, the white 
and the black, and enforced over the years without dis­
crimination of any sort. The Supreme Court of Alabama 
has consistently ordered stricken every application for 
certiorari to the Court of Appeals of Alabama which was 
not submitted on transcript paper as mandatorily required 
by Supreme Court Eule 32. The Petitioner chose to ignore 
this rule and thereby has not presented to the Supreme 
Court of Alabama in the manner prescribed by its rules 
the alleged constitutional questions which he is attempt­
ing to present to this Court.

The Opinions of the Supreme Court of Alabama wherein 
petitions for certiorari to the Court of Appeals of Ala­
bama were stricken because such petitions were not on 
transcript paper are too numerous to mention. A few 
of such cases are the following: Stovall v. State, 257 Ala. 
116, 57 So. 2d 641; Duckett v. State, 257 Ala. 589, 60 So. 
2d 357; Smith v. State, 264 Ala. 264, 86 So. 2d 842; Ladd 
v. State, 266 Ala. 586, 98 So. 2d 59; McDonald v. Amason, 
267 Ala. 654, 104 So. 2d 719; Accardo v. State, 268 Ala. 
293, 105 So. 2d 865; Ex Parte Davis, 269 Ala. 58, 110 So. 
2d 306; Ex Parte Cranmore, 273 Ala. 4, 129 So. 2d 688.

This Court has held that the law of practice of a State 
must be complied with in order to properly bring consti­
tutional questions to this Court. An orderly method for 
judicial review of this Court could reasonably require no 
less. This Court has recognized this and has so held.

The rule in this regard is stated in John v. Paullin, 231 
U. S. 583, 34 S. Ct. 178, 179, 58 L. Ed. 381:



■—  4 —

“ Without any doubt it rests with, each state to 
prescribe the jurisdiction of its appellate courts, the 
mode and time of invoking that jurisdiction, and the 
rules of practice to be applied in its exercise, and the 
law and practice in this regard are no less applicable 
when Federal rights are in controversy than when 
the case turns entirely upon questions of local or 
general law. Calian v. Bransford, 139 U. S. 197, 35 
L. Ed. 144, 11 Sup. Ct. Rep. 519; Brown v. Massachu­
setts, 144 U. S. 573, 36 L. Ed. 546, 12 Sup. Ct. Rep. 
757; Jacobi v. Alabama, 187 U. S. 133, 47 L. Ed. 106, 
23 Sup. Ct. Rep.; Halbert v. Chicago, 202 TJ. S. 275, 
281, 50 L. Ed. 1026, 26 Sup. Ct. Rep. 617; Newman v. 
Gates, 204 U. S. 89, 51 L. Ed. 385, 27 Sup. Ct. Rep. 
220; Chesapeake & O. R. Co. v. McDonald, 214 U. S. 
191, 195, 53 L. Ed. 963, 965, 29 Sup. Ct. Rep. 546.”

It has long been settled that the Supreme Court ac­
quires no jurisdiction to review the judgment of a State 
court of last resort unless it affirmatively appears on the 
face of the record that a Federal question constituting an 
appropriate ground for such review was presented in and 
expressly or necessarily decided by such state court of 
last resort. Whitney v. People of State of California, 274 
TJ. S. 357, 47 Sup. Ct. 641.

It is also fully settled that where a constitutional ques 
tion is not properly presented to the State Appellate 
Court of last resort, and for this reason, under state prac 
tice, is not decided or passed upon by such Court of las 
resort, the question is not before the Supreme Court oi 
certiorari to the State court. Barbour v. State of Georgia, 
249 U. S. 454, 39 S. Ct. 316, 317; Louisville & Nashville 
Railroad Company v. Woodford, 234 U. S. 46, 34 S. Ct. 
739, 741; Taylor v. City of Birmingham, 35 Ala. App. 133, 
45 So. 2d 53, cert, den., 253 Ala. 369, 45 So. 2d 60, cert, 
den., 340 U. S. 832, 71 S. Ct. 45; Michel v. State of Louisi­
ana, 340 U. S. 832, 71 S. Ct. 45.



—  5 —

We respectfully submit that this Court should not re­
view this case on the merits because of failure of the 
Petitioner to properly present the Constitutional question 
to the Court of last resort in the State of Alabama, i. e., 
The Supreme Court of Alabama.

The Petitioner on page 2 of his brief states that this 
case involves Section 1 of the 14th Amendment to the 
Constitution of the United States.

Section 1 of the 14th Amendment is as follows:

“ Section 1.
All persons born or naturalized in the United States, 

and subject to the jurisdiction thereof, are citizens of 
the United States and of the state wherein they reside. 
No state shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of 
the United States; nor shall any state deprive any 
person of life, liberty, or property, without due proc­
ess of law; nor deny to any person within its jurisdic­
tion the equal protection of the laws.”

Petitioner at page 10 of his brief says he was

“ . . . denied due process of law secured by the Four­
teenth Amendment in that he was convicted of crime 
without evidence of guilt . . . ”

Without waiving our contention that the Petitioner is 
not entitled to a review of the alleged constitutional ques­
tions argued in his brief by this Court under 28 United 
States Code, Section 1257 (3), or otherwise because he has 
not presented such questions to the Supreme Court of Ala­
bama so as to obtain a decision on such constitutional 
questions (Whitney v. People of State of California, 274 
U. S. 357, 47 Sup. Ct. 641) we will now discuss the other 
issues argued by the Petitioner.



—  6 —

Was the Petitioner convicted of an offense without evi­
dence of guilt?

The Petitioner was tried in the Circuit Court of the 
Tenth Judicial Circuit of Alabama. He was tried by a 
Judge sitting without a jury. This was the Petitioner’s 
choice. The Petitioner could have been tried before a 
jury had he so elected. Section 587, Title 37, Code of Ala­
bama of 1940, as amended. The City of Birmingham is 
not authorized to demand a jury for the trial of a case ap­
pealed from its Recorders’ Court. Ex Parte Hall, 255 Ala. 
98, 50 So. 2d 264.

The complaint under which the Petitioner was con­
victed charged as follows:

“ Comes the City of Birmingham, Alabama, a mu­
nicipal corporation, and complains that Fred L. Shut- 
tlesworth, within twelve (12) months before the begin­
ning of this prosecution, and within the City of Bir­
mingham or the police jurisdiction thereof, did know­
ingly and wilfully interfere with, hinder, or prevent 
a police officer of the City of Birmingham; namely, 
Jamie Moore, Police Chief for the City of Birmingham, 
in the discharge of his legal duty in that said defend­
ant did knowingly and wilfully place himself between 
said officers and a group of people commonly called 
‘ freedom riders’ when said people were being placed 
in protective custody by said officer, and said defend­
ant did knowingly and wilfully refuse to move out of 
the way of said police officer after being so ordered, 
contrary to and in violation of Section 856 of the 
General City Code of Birmingham of 1944. (Emphasis 
added.) (R. 4 .)”

Section 856 of the General City Code of Birmingham 
is as follows:

“ Any person who knowingly and wilfully opposes 
or resists any officer of the city in executing, or at­



7

tempting to make any lawful arrest, or in the dis­
charge of any legal duty, or who in any way interferes 
with, hinders or prevents, or offers or endeavors to 
interfere with, hinder or prevent such officer from dis­
charging his duty, shall on conviction, be punished 
as provided in section 4.”  (Emphasis added.)

All courts in the State of Alabama take judicial notice 
of all ordinances, laws and by-laws of the City of Bir­
mingham. Acts of the Regular Session of the Legislature 
of Alabama of 1943, page 183; Monk v. Birmingham, 87 F. 
Supp. 538; Bmiley v. Birmingham, 255 Ala. 604, 52 So. 2d 
710.

Section 910 of the General City Code of Birmingham of 
1944 of which this Court has judicial knowledge is in 
part as follows:

“ Sec. 910. Functions of Department.
(a) General. The Police Department shall be 

charged with the preservation of the peace and order 
of the city, the protection of all persons and property 
within the city, and the enforcement of all criminal 
ordinances and all criminal laws of the city and the 
state. The department shall suppress all riots, dis­
turbances and breaches of the peace . . . ”  (emphasis 
added).

Section 6 of the General City Code of Birmingham of 
1944 is as follows:

“ Sec. 6. Election between provisions for purpose 
of prosecution.

In all cases where any person is charged with an 
act or omission which is prohibited or made punish­
able by different sections of this code or by different 
ordinances, the court may elect on which of said 
ordinances or sections to proceed, and all further



proceedings in the case shall be in reference to and 
controlled by such election (1930, §4914).”

Let us take said Section 856 under which the Petitioner 
was convicted and examine it as to whether it is “ un­
constitutionally vague”  as argued by him. The ordinance 
is clearly directed against any one who “ hinders”  an 
officer in the discharge of his duty. “ Hinder”  is a com­
mon word and means interfere, impede, encumber, retard, 
delay, obstruct, block or thwart (See standard diction­
aries). Certainly said Section 856 is not vague as to 
what is meant. It is in the public interest that bystanders, 
busybodies, agitators, race baiters and others should not 
hinder a police officer in the performance of his duty 
of maintaining law and order and preserving the peace. 
The fact that the word “ hinder”  is applicable to dif­
ferent degrees of conduct does not make it so vague as 
to be unintelligible. Said Section 856 of the 1944 City 
Code was brought forward from the 1930 City Code 
where it appeared as Section 5495. An ordinance similar 
to this is found in the ordinances of many cities and 
in state laws. Even the Congress has enacted statutes 
making it an offense to “ hinder”  a public officer in the 
performance of his duty. Among others, 34 Stat. 157, 
159, provides in Section 11 as follows:

“ Sec. 11. That no person shall interfere with any mem­
ber of the board for the condemnation of insanitary 
buildings or with any person acting under authority and 
by direction of said board in the discharge of his lawful 
duties, nor hinder, prevent, or refuse to permit any lawful 
inspection or the performance of any work authorized 
by this Act to be done by or by authority and direction 
of said board”  (emphasis added).

This Court in District of Columbia v. Little, 339 TJ. S. 
1, 70 S. Ct. 468, discussed phraseology similar to the 
phraseology of said Section 856. If said Section 856 is



“ unconstitutionally vague”  as argued by the Petitioner, 
the Little case, supra, does not so indicate as to a sim­
ilarly worded regulation or law. In Little this Court 
commented on the fact that the regulation there involved 
did not include the word “ hindering” . In Little this 
Court indicated that the use of the word “ hindering”  
would enlarge on the proscribed acts referred to in the 
District regulation under consideration with these words:

“ It (the District regulation) does not even pro­
hibit ‘hindering’ or ‘ refusing to permit any lawful 
inspection,’ in sharp contrast with a separate in­
spection statute enacted by Congress for the District 
which adds these phrases to prohibitions against 
‘ interference’ and ‘ prevention’.”

We respectfully submit that said Section 856 is not 
“ unconstitutionally vague”  as argued by Petitioner. If 
it were so, the regulations discussed in Little would also 
be unconstitutionally vague and many other laws and 
ordinances throughout this county would likewise fall 
and great injury to the public interest will result and 
law enforcement officers will be impeded in their efforts 
to enforce the laws.

We respectfully contend that said ordinance is valid 
and constitutional.

The next question we submit is to determine whether 
or not the complaint charges the Petitioner with an offense 
under said Section 856. The complaint charges the Peti­
tioner with the following conduct.

. . did knowingly and wilfully interfere with, 
hinder, or prevent a police officer of the City of Birm­
ingham; namely, Jamie Moore, Police Chief for the 
City of Birmingham, in the discharge of his legal duty
in that said defendant did knowingly and wilfully



10 —

place himself between said officers and a group of 
people commonly called “ freedom riders”  when said 
people were being placed in protective custody by 
said officer, and said defendant did knowingly and 
wilfully refuse to move out of the way of said, police 
officer after being so ordered, contrary to and in, vio­
lation of Section, 856 of the General, City Code of 
Birmingham of 1944.”

The above complaint clearly charges that the defendant 
interfered with and hindered the Police Chief in the dis­
charge of his legal duty. The particular act which consti­
tuted interference or hinderance was set out specifically 
in the Complaint as follows:

“ (the Petitioner) did knowingly and wilfully refuse 
to move out of the way of said police officer after 
being so ordered . . .. ”

The record clearly shows that the Petitioner did inter­
fere with or hinder the Chief of Police in performing his 
duty. The record shows the following facts relating to the 
arrest of Petitioner.

At the time the Petitioner was arrested there was a 
large crowd in and arouud the bus station (R. 16, 20, 21, 
28, 37, 38). Captain Jack A. Warren estimated the size 
of the crowd to be approximately 250 or 300 persons (R. 
32). The crowd was in a boisterous and jeering mood and 
some of the crowd yelled out, “ Take the police away and 
we will take care of it”  (R. 16). Other witnesses also 
testified as to the dangerous emotion of the crowd or mob. 
Captain James W. Garrison testified things were tense 
at the bus station (R. 26, 27), and he felt the Freedom 
Riders were in danger actually of their lives (R. 27). The 
attitude was belligerent, storming, and overall anger (R.
28) , and it was directed toward the Freedom Riders (R.
29) . Captain Jack A. Warren testified there was a great



— 11 —

deal of tension at the bus station (R. 31, 32): “ Yon could 
see it in the faces of the people in the crowd, you could 
tell it in the talking to themselves and their muttering 
and trying to press forward toward the bus loading plat­
form. I was very much aware of that. As a matter of 
fact, that is the reason I was there”  (R. 32). Officer T. T. 
Trammell testified there was a lot of unrest at the station 
and it seemed like everything could erupt in one fast 
moment (R. 37, 38).

At the time of Petitioner’s arrest there were 30 or 35 
or maybe 40 policemen at the bus station, and during the 
week approximately 80 per cent of the entire police force 
was engaged at the bus station at one time or another 
(R. 29). The duties of these officers were described by 
Captain James W. Garrison as follows: “ “Well, we had 
some officers that stayed right with these Freedom Riders 
all the time. We had others that wTas assigned to keep 
back the crowds. We had others to work traffic at the 
different intersections. We had 19th Street Mocked en­
tirely and had 7th Avenue blocked between 18th and 19th 
Streets to avoid cars just continuing in a circle. And 
some were inside the bus station and stayed in the wait­
ing room the entire time”  (R. 28, 29).

The Freedom Riders were unable to get a driver to 
drive the bus (R. 28, 29, 42, 43).

The conduct of the Petitioner hindered or interfered 
with Chief Jamie Moore when he was placing the Freedom 
Riders in protective custody (R. 26, 31).

Petitioner’s attorney asked Captain Garrison of the 
Police Department a direct question as follows: “ Did the 
defendant’s conduct in any way make your arrest or your 
duty in putting these people under protective custody any 
harder?”  Captain Garrison answered “ Yes . . . by con­
tinually getting between us and them . . . and he kept



milling around and wouldn’t move on when we asked him 
to and things were kind of tense over there at that par­
ticular time”  (R. 26).

Chief Moore told the Freedom Riders who he was, i. e., 
Chief of Police of the City of Birmingham, and that he 
was taking them into protective custody due to the cir­
cumstances at the bus station (R. 15, 16, 17, 22).

Chief Moore told the Petitioner to leave the bus station, 
that he was not concerned with what was happening, hut 
the Petitioner did not leave but got between Chief Moore 
and the Freedom Riders and would not leave on order.

Captain James W. Garrison also told the Petitioner to 
move on, and the Petitioner continued to interfere (R. 
22, 23).

The Petitioner knew Chief Moore and his capacity with 
the City (R. 45, 46).

Pages 43, 44 and 45 shows by the Petitioner’s own testi­
mony that he was hindering or interfering with Chief 
Moore. His answer to his own Counsel’s question was as 
follows:

“ Q. What did the Chief say when he walked up to the 
group ?

A. He identified himself and said, “ I am Chief Moore,”  
or words to that effect, Chief of the Birmingham City 
Police, and we have decided to arrest you all for your own 
protection.”

And I asked him what did he say, and he said he de­
cided to arrest us for our own protection. And then he 
recognized me in the crowd and he said, “  Shuttlesworth, 
are you with the group?”

I said, “ I am. We have been trying to get the bus out 
for two hours or more.”

—  12 —



—  13

And he said, “ Well, you go on, I don’t want any trouble 
out of you.”

And I said, “ I am with the group and I want to catch 
a bus.”  And he said “ If you don’t go on, I will have 
to arrest you.”  And I said, “ Well, whatever happens 
on all them will happen to me; we are all together.”  . . .

. . . Q. Did you say anything other than what you had 
just testified to?

A. That was the substance of what was said.
Q. Is that all of what you said in substance?
A. Yes. After he repeated the second time for me to 

go home, then he said to this Officer Garrison, I believe, 
“ Put him under arrest.”

The Petitioner was a resident of the City. The sub­
stance of the record clearly shows that at the time the 
freedom riders were taken into protective custody for 
their own protection the Police believed all of them to be 
nonresidents passing through the City of Birmingham en 
route to Montgomery, Alabama, and that they were ma­
rooned in the Bus Depot. The police knew the Petitioner 
to be a local man and that he did not come into the City 
with the freedom riders.

The presence of the freedom riders in Birmingham at 
that time (only a few days after a bus had been burned 
on the highway), only a few days after other so called 
freedom riders had been attacked at another bus station 
in the City (R. 16) the refusal of bus drivers to take out 
any bus on which they rode, the crowd or mob gathered 
around the bus station, the coming of night time all pre­
sented a grave crisis. The issue of law and order was 
paramount. The record in this case is completely devoid 
of any protest, objection or resistance of the freedom 
riders to being taken into protective custody. The action 
of the police in furnishing the freedom riders with a safe



- 14-

place of refuge probably saved some of their lives, as well 
as the lives of others, and the record indicates they ac­
cepted this safe place of refuge without objection or 
comment.

The Police acted to maintain law and order. The 
Police acted on facts which were apparent to them. The 
Police are not constitutional lawyers and should not be. 
They acted in a practical manner. Their actions were 
not objected to by the freedom riders. The Petitioner 
hindered or interfered with the action of the Police in 
removing the freedom riders from the scene, which re­
moval was necessary in the judgment of the Police to 
prevent a riot. The action of the Police was successful. 
Their action prevented serious injury or loss of life. They 
are to be commended. The Petitioner did wilfully inter­
fere with the police officer in maintaining law and order.

The Petitioner argues that he was convicted of “ As­
sault”  for which he was not charged. He argues this 
because the Court of Appeals of Alabama stated that he 
could have been convicted of simple assault. Certainly 
if a person assaulted a police officer while the officer was 
in the performance of his duty, he could be prosecuted 
under either the section relating to assault or said Sec­
tion 856 of the City Code. Under such circumstances the 
same facts would justify a conviction under either section 
and the prosecuting authorities could elect which section 
to proceed under. Section 6 of the General City Code 
of the City of Birmingham of 1944 clearly provides for 
this election as follows:

“ Sec. 6. Election between provisions for purpose 
of prosecution.

In all cases where any person is charged with an 
act or omission which is prohibited or made punish­
able by different sections of this code or by different



— 15 —

ordinances, the court may elect on which of said ordi­
nances or sections to proceed, and all further pro­
ceedings in the case shall be in reference to and 
controlled by such election. (1930, §4914.)'’

So it is clear that the Petitioner was not convicted of 
violation of a law for which he was not charged. The Court 
of Appeals of Alabama stated that “  Shuttlesworth blocked 
the Chief’s path. . . . ”  The evidence set out in the
record supports this and shows that Shuttlesworth would 
not leave the scene free of arrest so that the Chief of Police 
could proceed with his work of preventing a catastrophe.

The Petitioner claims he has a constitutional right to get 
in the way of the police officers. He was a stranger to the 
proceedings between the Chief and the freedom riders. He 
was not in transit as they were. Whether or not the Free­
dom Riders could have constitutionally been taken into 
custody was a matter between them and the officers. No 
attempt was made to take the Petitioner into protective 
custody. All he had to do was leave the area in the station 
where the Freedom Riders were being escorted to a place 
of refuge.

Suppose the police had decided that the white people 
in the vicinity of the bus station had a constitutional right 
to go where they pleased so long as no law was then pres­
ently being broken. Chief Moore testified that some of the 
people who were threatening trouble were arrested around 
the bus station that day and “  . . . we moved lots of
people away from the bus station. Some more were ar­
rested in and around there ’ ’ (R. 20). The record indicates 
there were white people who refused to leave the bus sta­
tion or refused to move on when ordered or otherwise indi­
cated they might cause trouble and they were arrested. 
You cannot cure a riot (such as had happened at another



— 16 — •

Birmingham bus station previously and had happened in 
the City of Montgomery, Alabama) after it has started 
any more than you can cure cancer after it reaches the ter­
minal stage. Medical experts tell us cancer can be cured if 
caught soon enough and police officers know that the cor­
rect way to handle a riot or a mob is to recognize its early 
manifestations and to prevent its occurrence or formation. 
That is what the officers did in this case. Suppose a law- 
abiding white citizen insisted upon driving around the 
block by the bus station when ordered by the police not 
to do so. Could such a person constitutionally claim the 
right to do so and thus hinder the work of the police! If 
a lawabiding citizen could do so, then a person bent on 
creating disorder could do the same. If the Petitioner 
could claim a right to mingle with the transit freedom 
riders over the objections of police, then on what ground 
could the two or three hundred people milling around the 
bus station be denied a right to do the same. If they had 
been so permitted, does this Court not know what would 
have happened?

We do not wish to depreciate constitutional rights. But 
constitutional rights are not unlimited. A great justice of 
this Court once said that freedom of speech carries with it 
no right to yell “ Fire”  in a crowded theatre. Due process 
of law does not prevent the destruction of private property 
when necessary to prevent the spread of a fire.

The Petitioner argues that the Chief of Police was not 
in the discharge of a legal duty. He appears to take the 
position that the taking of the freedom riders into pro­
tective custody and furnishing them a safe place of refuge" 
was an illegal arrest. First whether it was a legal or illegal 
arrest or no arrest at all is a matter between the officers 
and the freedom riders and not between the officers and 
the Petitioner. It cannot be disputed even by the peti­



17 —

tioner that the action of the police was motivated by any­
thing but a desire to protect the freedom riders. The 
record shows no malice by the police against the freedom 
riders or the petitioner. The Chief did not want to have 
the Petitioner arrested and told him so. He was asked to 
leave. The petitioner insisted on Ms own arrest even 
though he was told that he was not being arrested (R. 44).

Section 910 of the General City Code of 1944 places a 
duty upon the Police Department as follows:

“ The Police Department shall be charged with the 
preservation of the peace and order of the City, the 
protection of all persons and property within the City.

Thus, the police were attempting to preserve the peace 
and protect persons and their actions were calculated to do 
this, a duty placed upon them by ordinance, at the time 
Petitioner hindered or interfered with them. There can 
be no argument that the end result the preservation of 
peace and the protection of persons wras a legal duty which 
the police were required to accomplish, if possible. There­
fore, they were in the discharge of a legal duty whether 
or not the means selected was proper or improper. The 
police did not intend that the means or method which they 
determined was necessary should affect the Petitioner. He 
introduced himself into the scene. He was an interloper. 
He was a bystander who kept getting in the way. He 
was arrested and convicted of violating a valid ordinance 
of the City of Birmingham. If the Petitioner is not sub­
ject to arrest then will not a police officer be subject to 
harassment and interference by third persons who are 
so inclined to interfere whenever he makes an arrest in a 
public place? Should such an officer be required to dis­
cuss the facts and the law involved with third persons at 
the time of the arrest and submit to such third persons



18

congregating around the place of arrest so as to endanger 
the safety of the officer and his prisoner or prisoners.

Should this court reverse this conviction because of 
the actions of the officers in taking the freedom riders into 
protective custody, it is respectfully suggested that it con­
sider what would in all probability have happened to 
these same freedom riders and to the outnumbered officers 
of the law had the police not acted as they did.

The general scope and authority of a police officer in giv­
ing orders in the performance of his duty was discussed 
in State v. Taylor, 18 A. 2d 36, 38 N. J. Super. 6, in the 
following language:

(<<##* The 0f p0pce officers, it is true, is “ not 
merely to arrest offenders, but to protect persons 
from threatened wrong and to prevent disorder. In 
the performance of their duties they may give rea­
sonable directions.”  People v. Nixon, 248 N. Y. 182, 
188, 161 N. E. 463, 466. Then they are called upon to 
determine both the occasion for and the nature of such 
directions. Reasonable discretion must, in such mat­
ters, be left to them, and only when they exceed that 
discretion do they transcend their authority and de­
part from their duty. The assertion of the rights of 
the individual upon trivial occasions and in doubtful 
cases may be ill-advised and inopportune. Failure, 
even though conscientious, to obey directions of a 
police officer, not exceeding his authority, may inter­
fere with the public order and lead to ai breach of the 
peace.’ People v. Galpern, 259 N. Y. 279, 181 N. E. 
572, 83 A. L. R. 785 (Ct. App. 1932).

“ Failure to obey a police order to ‘move on’ can 
be justified only where the circumstances show conclu­
sively that the order was purely arbitrary and was 
not calculated in any way to promote the public order.



—  19

As was said in the Galpern case, the courts cannot 
weigh opposing considerations as to the wisdom of a 
police officer’s directions when he is called upon to 
decide whether the time has come in which some di­
rections are called for.”

Police officers of this nation face trying times in the 
maintenance of law and order. Law and order is para­
mount to all benefits flowing from a free society. Without 
law and order, all other benefits would be from a practical 
standpoint nonexistent. All the laws on the books de­
signed to maintain law and order depend upon the police 
officers of our cities and the peace officers of the counties 
and the states. These officers are in the front line of battle. 
We respectfully contend that orders or directions of a 
police officer designed to maintain law and order in a pub­
lic place should be obeyed without question by the public 
unless such order is so unreasonable as to be arbitrary and 
capricious. This we believe is necessary to public protec­
tion. It is the reason why the term “ police power,”  as 
applied to municipalities and the state, has never been and 
cannot be limited by definition. A police officer of a mu­
nicipality, in acting under municipal ordinances, is exer­
cising a portion of the police power of the municipality 
which is necessary to the maintenance of law and order. 
If orders of a police officer given by him for the purpose 
of protecting persons, performing his duty, preventing emi­
nent violations of laws, or preventing riots are not sus­
tained when they are not clearly arbitrary and capricious, 
we risk public disorder on a large scale.

The action of the police officers in this case was not arbi­
trary or capricious and was reasonably designed to main­
tain law and order and protect the persons of the freedom 
riders. They were not charged with violating any law and 
did continue their journey when bus drivers were available.



20

We respectfully contend that the judgment of the Court 
of Appeals of Alabama should not be disturbed.

Respectfully submitted,

J. M. BRECKENRIDGB,
600 City Hall Building,

Birmingham 3, Alabama, 
Attorney for Respondent, City of 

Birmingham.