Jones v. Virginia Brief of Plaintiff-In Error

    SUPREME COURT OF APPEALS OF VIRGINIA 
At Richmond

Record No. 7191

ERNEST THOMAS JONES,
Plaintiff-in-Error,

v.
COMMONWEALTH OF VIRGINIA,

Defendant-in-Error.

BRIEF OF PLAINTIFF-IN-ERROR

S. W. TUCKER 
HAROLD M. MARSH 
HILL, TUCKER & MARSH 

214 East Clay Street 
Richmond, Virginia 23219

JACK GREENBERG 
JAMES M. NABRIT, III

10 Columbus Circle, Suite 2030 
New York, New York 10019

Counsel for. Plaintiff-in-Error



Page
Statement Of Material Proceedings . . . .  1

Statement Of The Facts . . . . . . . . . .  4
The Assignments Of Error . . . . . . . .  8
-The Question Presented . . . . . . . . . .  9

Argument . . . . . . . . . . . . . . . .  10

I. The Plaintiff-In-Error Was Not
A Part Of The Assembly . . . . . .  10

II. Uncontradicted And Unimpeached 
Testimony Not Inherently 
Incredible May Not Be
Arbitrarily Disregarded  ........ 1,3

III. Citizens May Not Be Impelled To 
Forego First Amendment Rights For
Fear Of Violating An Unclear Law . 16

A. Only One Definition Of
Unlawful Assembly Is 
Challenged Here .  ........ 16

B. The Constitutional Privilege
Transcends State Interest . . 19

C. The Statute Provides No
Standard For Ascertainment of 
Forbidden Purpose . . . . . .  22

p. The Statute Is Vague . . . . .  23
IV. No Overt Act Justified Arrest . . .  25
V. Argument Was Improper . . . . . .  28

Conclusion . . . . . . . . . . . . . . .  31

Certificate . . . . . . . . . . . . . . .  33

Appendix (Richmond Ord. #68-79-44) . .App. 1

TABLE OF CONTENTS



TABLE OF CITATIONS

Cases
Page

Ashton Vo Kentucky, 384 U.S. 195,
86 S.Ct 1407, 16 L. ed 2d 469 . . . .  23,24

Baker v. Binder, 274 F. Supp. 658 . . . 25

Bateman v. Commonwealth, 183 Va8 253,
32 S.E. 2d 134 . . . . . . . . . . .  30

Cantwell v. Connecticut, 310 U.S. 296,
60 S.Ct. 900, 84 L. ed 2d 1213 . . .  24

Carmichael v. Allen, 267 F. Supp. 985. . 24,25

Cox v. Louisiana, 379 U.S. 536,
85 S. Ct. 453, 13 L. ed 2d 471 . . .  24

Devine v. Wood, 286 F. Supp. 102 . . .  . 18

Edwards v. South Carolina, 372 U.S. 229,
83 S.Ct. 680, 9 L.ed 2d 697 . . . . .  24

Epperson & Carter v. DeJarnette, 164 Va.
482, 180 S.E, 412 . . . . . . . . . .  14

Gamble v. Commonwealth, 161 Va. 1024,
170S.E. 761. . . . . . . . . . . .. 11

Giacco v. Pennsylvania, 382 U.S. 399,
86 S.Ct. 518, 15 L. ed 2d 477 . . . .  23

Hague v. C.I.O., 307 U.S. 496, 59 S.Ct.
954, 83 L. ed 1423 . . . . . . . . .  19

Heard v, Rizzo, 281 F. Supp. 720 . . . .  17

Lanzetta v. New Jersey, 306 U.S. 451,
S.Ct. 618, 83 L. ed 888 . . . . . . .  23

Metropolitan L. Ins. Co. v. Botto,
153 Va. 468, 14 S.E. 625 . . . . . . .  14

McReynolds v. Commonwealth, 177 Va. 933,
15 S.E. 2d 70 . . . . . . . . . . .  . 30



Page
Mullins Vo Commonwealth , 113 Va. 787,

75 S.E. 193 . . . . • ® ® • - . . . 30

Powers v. Commonwealth, 182 Va. 669 ,
30 S.E. 2d 22 . . • « •> ® ® . . . 11,12

Presley v. Commonwealth , 185 Va. 261,
38 S.E. 2d 476 . . 14

Rollins v, Shannon, 292 F . Supp. 580 . 18

Si,Ivey v. Johnston, 19 3 Va. 677,
70 S.E. 2d 280 „ . ® • . ® o . . , . 14

Smith v. Commonwealth, 192 Va. 453,
65 S.E. 2d 528 . . ® . . • ® ® 12

Spratley v. Commonwealth, 154 Va . 854,
152 S.E. 362 . . . 15

Terminiello v. Chicago, 337 U.S . 1,
69 S.Ct. 894, 93 L. ed 1131 . ® a ® 21,24

Thomas v. Danville, 207 Va. 656 ,
152 S.E. 265 . . . 20

Thompson v. Louisville, 362 U.S . 199,
80 S.Ct. 624, 4 L. ed 2d 654,
80 A.L.R. 2d 1355 » ® ® e • « o ® e 12,16

University Committee to End War in
Viet Nam v. Gunn, 289 F. Supp. 469 . * 20

Ware v Nichols, 266 F, Supp. 564 «, , 24

Other Authorities

U. S, Constitution, Amendment I . .2,3,8,26

U . S. Constitution, Amendment XIV
8,9,12,15-16,19,26

Acts of Va, Assembly, 1968, Ch. 460. . 27



Code of Virginia:
§18.1-87 . . . . . . . . . . . . .  22
§ 18 o1-227 . . . . . . . . . . . . .  25
§18.1-237 . . . . . . . . . . . . .  25
§18.1-254 . . . . . . . . . . . . .  13
§18.1-254.1(c) . . . . . . . . . . .  16
§18.1-254.4 . . . . . . . . . . . .  26
§18o1-254 o8 . . . . . . . . . . . .  26

Ordinance of City of Richmond #68-79-44 
(April 7, 1968) . . . . . . .  .12,27,29,App. 1

iv Page

Code of District of Columbia, §22-1107 25



IN THE

SUPREME COURT OF APPEALS OF VIRGINIA
At Richmond

Record No. 7191

ERNEST THOMAS JONES,
Plaintiff-in-Error,

v.

COMMONWEALTH OF VIRGINIA,
Defendant-in-Error.

BRIEF OF PLAINTIFF-IN-ERROR

STATEMENT OF THE MATERIAL PROCEEDINGS 
IN THE LOWER COURT

Upon appeal from a Police Court conviction on 

a warrant charging that the defendant did unlaw­

fully be disorderly and did disturb the peace in 

a riotous manner, the matter came on for trial 

de novo in the Hustings Court and the warrant 

was amended to charge that the defendant "did 

unlawfully assemble without the authority of law 

and for the purpose of disturbing the peace or 

exciting public alarm or disorder,” to which



2

amended charge the defendant plead not guilty.

At the conclusion of the testimony for the 

Commonwealth, the defendant moved to strike 

the evidence (1) on the ground that the evi­

dence was insufficient and (2) on the ground 

that First Amendment freedoms are impermissi­

bly invaded by that part of the Virginia 
statute which is alleged to have been violated. 

The motion was overruled and the defendant 
excepted.

The defendant then introduced evidence show­

ing that he was not at any time a part of the 

group which the policemen had surrounded and 

taken into custody for disorderly conduct. 

Thereupon the defendant renewed his motion to 

strike the evidence which motion was overruled 

and exception was saved.

Exception was saved to the granting of instruc­

tion number 2 by which the jurors were told that 
the credibility of witnessess is a question 

exclusively for the jury; the objection being 
founded upon the circumstance that there was no 

conflict in the evidence,



3

Exception was saved to instruction number 4 

which stated the penalty for participating in 

an assembly "without the authority of law and 

for the purpose of disturbing the peace or 

exciting public alarm or disorder; the suggested 
necessity of "authority of law" for an assembly 

being an impermissible impingement upon First 

Amendment freedoms, and the proscribed purpose 
of "disturbing the peace or exciting public 

alarm or disorder" being too vague to meet con­

stitutional requirements of due process.

Exception was saved to the denial of a motion 

to declare a mistrial for argument of the Com­

monwealth's Attorney that it is up to the jury 

whether or not "groups of this sort" will be 

allowed to run the city; the purpose and effect 

of the argument having been to suggest to a jury 

of white citizens, and without supporting evi­

dence , that unless the defendant would be severely 
punished, unruly groups of Negroes would take 
over and run the city.

Exception was saved to the denial of the motion



4

to set aside the verdict of the jury on the 

grounds previously urged.. The defendant was 

sentenced in accordance with the verdict of 

the jury,

A motion that execution of the sentence be 

suspended to permit this application for a writ 

of error was granted and such suspension was 
duly extended, Notice of appeal and desig- 

nation of the parts of the record to be printed 

were filed on October 11, 1968, pursuant to 
extension of time granted by this Court on 

October 7, 1968,
STATEMENT OF THE FACTS

On April 8, 1968, police officers of the City 

of Richmond were on special duty to contain or 

control disturbances which followed the April 4 

assassination of Dr0 Martin Luther King, Jr,, 

in Memphis, Tennessee, Police Sergeant Conner 

was one of two sergeants in charge of two squads 
consisting of about eighteen Richmond police 

officers, who left the vicinity of Ninth and 
Marshall Streets in response to information that 

a group was gathering at Adams and Broad Streets -



5

As the two squads of policemen, riding in a 

school bus, proceeded westwardly on Broad- 

Street and approached Third Street, Sergeant 

Conner saw this group of persons on the north 
side of Broad Street moving eastwardly, 

approaching Second Street, The bus came to a 

stop in the two hundred block of Broad Street 
(between Third and Second Streets), As the 

group under observation crossed Second Street, 
the police officers left the bus. People in 

the group were cursing loudly, screaming, shout­

ing obscenities, darting in and out between the 
automobiles and parking meters, and taking up 
the entire sidewalk.

Sergeant Conner and the other two officers 

who testified were a part of the squad which 

formed a line across the sidewalk stopping the 

eastwardly movement of the group under surveil­

lance (R, 8, 24, 44, 50). State Troopers (none 

of whom testified) moved in from the west and 

assisted the city police in surrounding the 
groupo Other officers were in the vicinity who 

were not engaged in surrounding the disorderly



6

group and could have placed a bystander or 

passerby in the circle (R, 17, 20).

Persons thus captured dropped several 

pieces of bricks, sticks, several Coca-Cola 

or Pepsi-CoXa bottles (R. 10) and two knives 

(R. 31). One person managed to escape from 

the surrounding policemen-. All others were 

placed in vehicles and transported to the 

police station. The three police officers 
who testified admit that they first saw this 
defendant at the lockup. (R. 10, 32, 47)

The defendant showed that at 8:00 P.M. or 

shortly thereafter (R. 59, 81) he left his 

home in South Richmond (R. 57) to see a Miss 

Craddock at the YWCA on Chamberlayne Avenue 

to get some days set for a drivers8 education 

class he was to teach (R. 59); that he crossed 

the Fourteenth Street Bridge, proceeded west- 

wardly on Main Street' to Ninth, northwardly on 

Ninth tc Broad and wastwardXy on Broad (R. 59-60) 
with purpose of turning to the right.at Second 
Street (R. 60-61).



?

As he was driving westwardly on Broad Street 

he saw behind him the flashing red lights of 

the police car. He pulled over to his rights 

stopping his car in front of the building 

numbered 306 East Broad Street and let the 

police car and the bus in which police were 

riding pass by (R. 60), He noticed that police 

were Requiring west bound traffic to turn left, 
at Third Street. Other cars had parked in 

front of him and the occupants (all white) were 
leaving their cars and walking to the two hun­

dred block where some excitement was then tran­
spiring (R. 61).

The defendant extinguished his lights, locked 

the door; and while yet beside his car he was 

apprehended by an unidentified local police 

officer and taken to the two hundred block 

(R, 61) where he was searched and put into the 
patrol wagon (R, 64-65).

On the following day (April 9, 1968) at 8:05 

A.M„, the police department ticketed the defend­
ant's automobile for being illegally parked in 
front of 306 East Broad Street (R. 63, Defendant's



8

Exhibits Nos. 1 and 2) and removed the car 
from the street0

THE ASSIGNMENTS OF ERROR

lo On the motions to strike the evidence 

and on the motion to set aside the verdict, 

the court erred in ruling that there was a 

showing that the defendant was within the 

group which the policemen had surrounded.

2 On the motion to strike the evidence 
and again in granting Instruction No. 4, the 

court erred in ruling that First and Fourteenth 

Amendment rights are not violated by so much of 

Code Section 18.1-254.1 as proscribed an assem­

bly of three or more persons without authority 

of law and for the purpose of disturbing the 

peace or exciting public alarm or disorder.

3. The court erred in refusing the motion to 
declare a mistrial.

4. There having been no material conflict in 

the evidence, the court erred in instructing the 

jury that they were the judges of the credibility
of the witnesses; and thereby the defendant was 
denied due process of law in violation of the



9

Fourteenth. Amendment,

QUESTIONS PRESENTED
I

Is there any evidence that the defendant was 
a part of any assembly at or immediately before 
the time of his arrest?

II

May any trier of fact arbitrarily disregard 

uncontradicted testimony which is not inher­
ently incredible?

Ill
May citizens be required to forego the right 

of peaceable assembly for fear that its exer­

cise may disturb the peace or excite public 
alarm or disorder?

IV
Absent observed overt acts calculated to dis­

turb the peace or excite public alarm or disorder 
may an assembly be forbidden because police 

officers believe such to be its purpose?
V

Was the argument urging that the jury should 
not permit "groups of this sort" to run the



10

city an impermissible appeal to racial preju­
dice and fear?

ARGUMENT
I

The Evidence Shows That The Plalntlff-ln-Error 
Was Not A Part Of The Assembly

The subject crowd was moving eastwardly on 

Broad Street from Adams Street, At no time 

did it go as far eastwardly as the 300 block 

of Broad Street (R.. 54) , the police having 

formed a cordon in the 200 block, between Sec­

ond and Third Streets ( R 10.» After the crowd 

was captured, its members were tunneled into 

the police vehicles. Neither of the three 
officers who testified saw Ernest Thomas Jones 

in the crowd or at the scene of arrest (R. 10, 
20, 32, 47), No witness saw Jones until the 
vehicles had arrived at the police station, 

Neither officer testified that the vehicles 

were empty before their prisoners were placed 
therein or that an officer or officers acting 

independently of the two squads did not. place 

a prisoner into one of the vehicles. The



11

testimony of the defendant was that he was 

taken from the point where he had just parked 
his car (east of the scene of the mass arrest 

of the eastwardly moving crowd), and carried 

by an unidentified city police officer west- 

wardly to the scene of the mass arrest and 

placed in the police vehicle, (R, 60,61) His 

registration card and a traffic summons (see 

exhibits) show that on the next morning his 

car was towed from in front of 306 East Broad 

Street (Rc 63). That evidence fully explains 
his presence at the lockup where he was first 

seen by the witnesses and is uncontradicted„ 
The evidence to connect this defendant with 

the original group of individuals whom the 

police were dispatched to investigate is 
entirely circumstantial. The circumstances 

have been adequately explained. It is well 

settled that such evidence to be sufficient to 

support a conviction must not only be consist­

ent with guilt but must be inconsistent with 

innocence. Gamble v. Commonwealth, 161 Va.

1024, 170 S.E. 561 (1933), Powers v. Common­



12
wealth, 182 Va, 669, 30 S.E. 2d 22 (1944),

Smith Vo Commonwealth, 192 Va. 453, 65 S.E.

2d 528 (1951).

The net result, is that the defendant has 

been convicted without evidence of his guilt 

in violation of the Due Process Clause of the 

Fourteenth Amendment. See Thompson v. Louis­

ville, 362 U.S. 199 80 S.Ct. 624, 4 L, ed 2d 

654, 80 A.L.R. 2d 1355 (I960).

The realities of the situation at the time 
of the arrest can better be understood if ref­

erence is made to an Ordinance-— No, 68-79-44-- 
adopted April 7, 1968 by the Council of the 

City of Richmond as emergency legislation by 

which the Chief of the Bureau of Police, or his 
designee, was "authorized and empowered to 

regulate, restrict or prohibit any assembly of 

persons or the movement of persons and vehicles 

in the said city," including "the banning of 

persons and/or vehicles from said streets dur­

ing such hours as said Chief of Police or his

designate may deem proper in the necessary pro­
tection of persons and property," The preamble



13
to the ordinance shows the Council's concern 

for the "disorderly conduct* disturbances and 

disorderly assemblages in public places within 

this city which constitute a danger to the 

safety, health, peace, good order and welfare 

of the citizens of this city * * * [which] 

commenced on the evening of Saturday, April 6, 

1968" (two days following Dr, King's assassi­

nation) . An attested copy of said ordinance 
is appended hereto.

Pursuant to this ordinance, the police 

removed Negroes from the streets and charged 

the individuals thus arrested with behaving 

in a disorderly manner in violation of Section 

18.1-254 of the Code of Virginia, the April 2, 

1968 emergency repeal of which had escaped 

their attention. In the Hustings Court, as in 

the instant case, the warrants were amended to 
charge "unlawful assembly."

II

The Jury May"Not Arbitrarily Disregard 
The Uncontradicted Testimony Of Unimpeached 
Witnesses Which Is Not Inherently Incredible

The general rule is that where unimpeached



14

witnesses testify positively to a fact and 

are uncontradicted, the jury is not at lib­

erty to discredit their testimony . Pres ley 

Vo Commonwealth, 185 Va. 261, 266, 38 S.E.

2d 476 (1946); Metropolitan Life Insurance 

v. Botto, 153 Va, 468, 480, 143 S.E,, 625, 
154 S.E. 603 (1928). Epperson & Carter v, 

DeJarnette, 164 Va„ 482, 485-6, 180 S.E.

412 (1935). Silvey v. Johnston, 193 Va.
677, j681 , 70 S.E, 2d 280 (1952).

In Presley v. Commonwealth, sgpra,. the 
defendant was convicted of second degree 

murder although he had introduced evidence 
of self-defense, which was supported by 

investigation. In reversing the conviction, 

it was held that the jury!s disregard of 

such uncontradicted evidence was arbi tarry.

It was also held that the defendant's con­

tention, that the victim believed that the 

defendant had consorted with his wife and 
had told other witnesses that he would kill 

the defendant, was not an inherently improb­
able story.



15

In the case at bar,, there was no material 

conflict in the evidence and the defendant's 

story was not inherently incredible. The 

best the Commonwealth could establish was 

that the defendant was transported to the 

police station with the members of the group 
the police had surrounded.

Mere presence at a place where a crime is 

being committed, even if the defendant knows 
it is being committed, is not enough to render 

him guilty of its commission. Spratley v. 

Commonwealth, 154 Va. 854, 860, 152 S.E.
362 (1930).

The jury was not told by the Court that the 

evidence was insufficient to support a find™ 

ing of guilt. The jury was told that the cred­

ibility of witnessess is a question exclu­

sively for the jury. Thus, the jury was told 

that the defendant might be convicted if the 

jury chose arbitrarily to disregard his testimony. 

As a result, the defendant has been convicted 

without evidence of his guilt and in violation 
cf the Due Process Clause of the Fourteenth



16

Amendment. /Thompson v. Louisville/ supra-.

Ill

Citizens May Not Be Impelled To Forego 
The Exercise of First Amendment Rights 
For Fear Of Violating An Unclear Law

A

Only One Definition Is Challenged 

Having read the brief on behalf of the 
Commonwealth filed by the Attorney General 

in James Leon Harrison, Petitioner, v, W. K . 

Cummingham, Jr., Director of the Division of 

Corrections, Respondent (Record No. 7234), we 

seek to clarify the question here by putting 

to the side contentions which we do not advance 

in this case. We do not here attack so much 

of Code §18.1-254«1(c) as defines unlawful 
assembly, viz:

"Whenever three or more persons assemble 
with the common intent or with means and 
preparation to do an unlawful act which 
would be riot if actually committed, but 
do not act toward the commission thereof."

That definition, by its incorporation of the 

statutory definition of "riot", requires a show 
of unlawful force or a present threat of unlaw­

ful violence as an element of unlawful assembly



17
Similarly, we do not attack the common 

law concept of unlawful assembly. The 

authorities which purport to define the 

common law crime of unlawful assembly 

clearly indicate that a demonstrable inten­
tion of making an unlawful use of force and 

violence is an indispensable element of 
that crime.

The case of Heard v. Rizzo, 281 F. Supp.

720 (E.D. Pa., 1968), sustained Pennsylvania's 
statutory proscription of unlawful assembly. 

Following the practice of the Pennsylvania 

courts of defining common law terms not other­

wise defined in a statute by referring to an 

established meaning at common law, the Federal 

court quoted Black's Law Dictionary definition 
of unlawful assembly, viz:

"The meeting together of three or more 
persons, to the disturbance of the public 
peace, and with the intention of co-operat­
ing in the forcible and violent execution 
of some unlawful enterprise. * * * To con­
stitute offense it must appear that there 
was common intent of persons assembled 
to attain purpose, whether lawful or unlaw­
ful, by commission of acts of intimidation 
and disorder likely to produce danger to 
peace of neighborhood, and actually tending



18

to inspire courageous persons with 
well-grounded fear of serious breaches 
of public peace.Sl [Emphasis supplied] 
(281 F. Supp, at 740)

In Rollins v„ Shannon, 292 F. Supp. 580

(E.D . Mo., 1968), the statute under review 

provided:
"If three or more persons shall assemble 
together with the intent * * * to do any 
unlawful act, with force or violence, 
against the person or property of another, 
or against the peace or to the terror of 
the people, such persons * * * shall be 
deemed guilty of an unlawful assembly." 
[Emphasis supplied] (292 F. Supp. at 589).

In the case of Devine v. Wood, 286 F. Supp.

102 (M.D. Ala, 1968), the plaintiff challenged

a statute which, in part, read:

"If two or more persons meet together to 
commit a breach of the peace, or to do any 
other unlawful act, each * * * shall * * * 
be punished * * * ." (286 F. Supp. at 104)

This statute was viewed in the light of Ala­

bama's judicial holding that the defendants, to 

be punishable, must
assemble in such a manner, or so conduct 

themselves when assembled, as to cause per 
sons in the neighborhood of such assembly 
to fear cn reasonable grounds that the per 
sons so assembled would commit a breach of 
the peace or provoke others to do so." 
[Emphasis supplied] (286 F. Supp, at 105)



19

We do not question the right of the state 

to protect citizens and their properties 

against the unlawful use or threat of violence 

as is the purpose of the statutes above mentioned,. 
They are unlike the definition challenged here.

B

The Constitutional Privilege Transcends 
The State Interest

Insofar as Code §18 . 1-254.1 (c) defines an 

unlawful assembly as "whenever three or more 

persons assemble without authority of law and 

for the purpose of disturbing the peace or 

exciting public alarm or disorder," the statute 

violates the Due Process Clause of the Four­

teenth Amendment of the Constitution of the 

United States as it incorporates the First 

Amendment and further, as applied in this case, 

the statute violates the Privileges and Immuni­
ties Clause of the Fourteenth Amendment.

In Hague v. C ,I .0, 307 U.S. 496, 59 S.Ct. 954,
83 L. ed 1423 (1939), it was recognized that the 

privileges of citizens to use the public streets 
is of ancient origin, and one that inheres in



20

citizenship,, has the protection of the Four­

teenth Amendment, and "must not, in the 

guise of regulation, be abridged or denied, " 
(307 U.S. at 515-16). The challenged statu­

tory definition of unlawful assembly goes 

further than the ordinance in Hague. It 

charges a citizen to obtain "authority of 

law" (a permit) before assembling with two 

or more others at any place, public or 

private; otherwise they will have no assurance 

against molestation or arrest by officers 

who for any reason or for no reason may 

assume that the purpose of the assembly 

is to disturb the peace or excite public 

alarm or disorder. A publicly advertised 
but unlicensed mass meeting called for 

the announced purpose of launching public 

protest demonstrations would clearly be 

within the reach of the statute.

This branch of the case is controlled
V

by Thomas v City of Danville,, -20 7 Va

656, 662-3, 152 S.E. 2d 265 (1967).
1/Thomas was cited and followed in University 
Committee to End War in Viet Nam v, Gunn, 289 
F.Supp.469,475 (W.D.Tex. 1968), quod vide.



21

Items 4 and 6 of the Injunction then under

review forbade the defendants

"from creating * * * .noises * * * designed to 
upset the peace and tranquility of the commun­
ity * * * ■ [and] from * * * hqlding unlawful 
assemblies such as to unreasonably disturb 
or alarm the public * * *."

The statute now under review proscribes an assem­

bly if it has
"purpose of disturbing the peace or exciting 
public alarm or disorder,"

On the authority of Terminiello v = City of 

Chicago, 337 U,S. 1, 69 S.Ct. 894, 93 L ed. 1131 

(1949) this Court struck down the judicial pro­

hibitions because the subjects thereof did not 
constitute "a serious substantive evil that rises 
far above public in convenience, annoyance, or 

unrest", (207 Va. at 663) [Emphasis by the Court]
The only material difference between the Danville 

injunction and the Virginia statute is that the 

injunction purported to forbid acts which are 

constitutionally privileged and the statute 

purports to proscribe an unexecuted purpose 

of committing such acts.



22

C

The Statute Provides No Standard Whereby 
The Purpose Of An Assembly 

May Be Ascertained

Inasmuch as it proscribes assemblies held 

for the purpose of disturbing the peace or 

exciting public alarm or disorder, the statute 

may be violated before any disturbing or excit­

ing act has in fact been committed. It does 

not purport to say how, under such circum­

stances the existence of such purpose may be 
ascertained by arresting officers, by trial 

judges or juries, or by appellate courts. 

Citizens who may be assembled for a lawful 

purpose can not know what indicia of unlawful 

purpose the statute requires them to avoid.

If, for example, the statute drew an inference 

of forbidden purpose from the carrying of fire­

arms or the wearing of red armbands by three or 

more persons assembled (as Code §18,1-87 draws 

a presumption of unlawful intent from the mere 

possession of burglarious tools), citizens 

could exercise their First Amendment right of 
assembly with impunity from arrest by not



23

carrying firearms or wearing red armbands. See 

Giaccio v. Pennsylvania, 382 U,S. 399, 15 L, ed 
2nd 447, 86 S Ct. 518 (1966) , and Lanzetta v,

New Jersey, 306 U,S. 451, 59 S, Ct. 618, 83 L„ed 
888 (1939).

D

The Statute Is Unconstitutionally Vague 

"Vague laws in any area suffer a constitutional 
infirmity. When First Amendment rights are 

involved, we look even more closely lest, under 

the guise of regulating conduct that is reachable 

by the police power, freedom of speech or of the 

press suffer, We said in Cantwell v. Connecticut,

* * * that such a law must be 5 narrowly drawn to 

prevent the supposed evil' * * * and that a con­

viction for an utterance 'based on a common law 

concept of the most general and undefined nature*

* * * could not stand". (Ashton v. Kentucky, 384 

U.S, 195, 200-1, 16 L. Ed 2d 469, 86 S. Ct. 1407 
(1966),

The terms "disturbing the peace" and "exciting 
public alarm or disorder", as used in the instant 
statute, suffer the same infirmity of overbreadth



24

which has caused courts to invalidate legis­

lation because it was susceptible of being 

read as impinging upon First Amendment free­

doms. Cantwell v. Connecticut, 310 U,S, 296,

60 S. Ct. 900 , 84 L. ed 1213 (1940) (breach 

of the peace conviction based on a common law 

concept). Terminiello v. City of Chicago, 

supra, (disorderly conduct tending to a breach 

of the peace) . Edwards v. South Carolina, 372 

U.S. 229, 9 L. ed 2d 697, 83 S. Ct. 680 (1963) 

(common law breach of the peace). Cox v. 

Louisiana, 379 U.S. 536, 544, 13 L. ed 2d 471, 

85 S. Ct. 453 (1965) (congregating "with 
intent to provoke a breach of the peace, or 

under circumstances such that a breach of the 

peace may be occasioned thereby" and failing 

to disperse when ordered by police.) Ashton 

Vo Kentucky, supra, (Criminal libel defined as 

"any writing calculated to create disturbances 

of the peace"). Ware v. Nichols, 266 F. Supp. 

564 (N.D. Miss. 1967) (assemble for the pur­

pose of advocating, teaching, etc.) Carmichael



25

v. Allen, 267 F, Supp, 985, 997 (N. D. Ga. 1966) 
("act in a violent, turbulent, quarrelsome, 

boisterous, indecent or disorderly manner

* * * or to do anything tending to disturb the 

good order, morals, peace or dignity of the 

City,*') Baker v. Binder, 274 F. Supp. 65 8, 6 61 

(WoD, Kyo 1967) ("No two or more persons shall

* * * go forth for the purpose of intimidating, 

alarming, disturbing or injuring any person.")
IV

There Was No Overt Act Justifying Arrest 

The police officers observed a moving crowd 

of individuals, some of whom were shouting 

obscenities and "using profane language." The 

General Assembly has sought to ban obscene 

publications and transcriptions (Code §18.1- 
227 et seq.) but not the oral use of Saxon 

words now considered vulgar; although Code 

§18.1-237 authorizes a fine not exceeding 

$25 if any person arrived at the age of dis­

cretion "profanely curse or swear" in public.

(By way of contrast, see §22-1107 of the Code 
of the District of Columbia which forbids per-



26

sons "to curse, swear, or make use of any 

profane language or-indecent or obscene 

words" in any public-place,)

If language allegely used (but not repeated 

in the record) was not in fact profane, the 

persons arrested were under the umbrella of 

the speech aspect of the First Amendment, 

unaffected by any attempted statutory proscrip­
tion .

In this latter event, if the police were 

to take any action, they were charged by 
Code §18o1-254„8 to "go among the persons 

assembled or as near them as possible and 

command them in the name of the State imme­

diately to disperse"; and those who failed 

to do so may have been subject to punish­

ment as provided in Code §18,1-254-4: It

could not be consonant with Fourteenth 

Amendment equal protection- or due process 

concepts to allow the police- an arbitary dis­

cretion to arrest for unlawful assembly with­

out a prior order to disperse in some cases 
and in others to arrest only for failure to



27

comply with an order to disperse.

If the obscenities were not considered punish­

able as such and if, in fact, there was no profan­

ity, then there should have been no arrest because 

the assembly appears to have been otherwise peace­

able, Unless and until it had commited some overt 

act calculated to disturb the peace, the assembly 

was constitutionally privileged.
Once the shouted obscenities are viewed in any 

proper perspective, we see the police observing a 
boisterous or noisy but otherwise unoffending 

crowd moving eastwardly on Broad Street, about 

9*00 o'clock, on a Monday.night, disturbing no one, 
as fax as this record shows. Having been author­

ized by the April 7, 1968 ordinance (copy of which 

is appended hereto) to regulate, restrict or pro­

hibit any assembly of persons and to ban persons 
from the streets, and knowing nothing of Chapter 

460 of the Acts of Assembly, 1968, the police pro­

ceeded first to remove this group of Negroes from 

the street and thereafter to charge its members 
with disorderly conduct.



28

The statute now said to have been violated 

purports to punish the purpose which the State 

now attributes to the individuals in the 

assembly o' Nothing in the statute indicates 

how the existence of such purpose is to be 

ascertained by police officers,, by jurors, 

or by reviewing courts, If the statute may 

be enforced as demonstrated by this record, 
no assembly may withstand the displeasure of 

the police department; and the related protec­

tions of the First and Fourteenth Amendments 

become meaningless0

V

Argument Of The Commonwealth * s Attorney 
Was Improper And Prejudicial

It was a matter of common- knowledge that on 

April 8, 1968, Richmond continued to be a 

scene of some civil disorders perpetrated by 

some few Negro youths following the April 4, 

1968, assassination of Dr, Martin Luther King, 

Jr, On cross-examination, Officer Crane volun­
teered the suggestion that people were going 

around smashing windows (R, 48), although it



29

was shown in this case that the group the police 

had surrounded had been merely using loud, vulgar, 

uncouth language as they walked down Broad Street 

(R. 39), It was further a matter of common know­
ledge that on April 7, 1968, in an unprecedented 

Sunday session, the Council of the City of Rich­
mond had given extraordinary power to the Chief of 

Police "to regulate, restrict or prohibit any 

assembly of person or the movement of person" 
(Exhibit #1 herewith). These facts constituted a 

part of the background against which this case was 
submitted to a jury composed entirely of white 
persons (Tr. 211).

Under these circumstances, the Commonwealth's 
Attorney argued:

"* * * and I say this to you, it is up to 
you gentlemen, this xs your society, this 
is your city and your state. It is up to 
you gentlemen whether or not you are going 
to allow groups of this sort to run your 
city or whether you are going to have law 
and order," (Tr. 210.)

Nowhere in the record xs there evidentiary 
suggestion that any group of any sort was attempt­

ing to run the city or had the potential of taking 
over the city. Any such evidence as to any group



30

other than the group which these officers 
surrounded would have been clearly inadmissible■„ 
Accordingly, it was prejudicial to permit the 
Commonwealth's Attorney to make an argument 
or expression of his opinion when there was 
no evidence in the case upon which to base 
either, Bateman v. Commonwealth, 183 Va. 253, 

257, 32 S.E. 2d 134 (1944) citing Mullins v. 
Commonwealth, 113 Va, 787, 75 S.E. 193 (1912), * *

The argument to the jury from which all Negro 
veniremen had been struck is quite capable of 
being interpreted as suggesting that the 
society, city and state are the possession of 
its white citizens and that by a severe penalty 
on this defendant (a Negro), the jury should
endeavor or deter all Negroes from participat-

*

ing in or being caught up in the kind of dis­

turbances with which Richmond had been troubled „ 

The levy of a penalty of one year in jail is 

indicative that the jury responded to that 

veiled suggestion. In MeReynolds v. Common­
wealth , 177 Va, 933, 946, 15 S.E. 2d 70 (1941),

this Court stated the governing principles,viz:



31

"No conviction should rest upon an 
appeal to sympathy, passion or prej­
udice. If reason alone cannot be 
relied upon, it should be set aside."

CONCLUSION

This case classically demonstrates that the 
Court should strike down the challenged defi­

nition of unlawful assembly. Because it dis­
penses with objective proof of wrong doing, 

this definition of unlawful assembly was employed 

by the Commonwealth's Attorney to facilitate con­

viction of all who had been arrested, including 

this plaintiff-in-error whose presence at or 
near the scene of the mass arrest was entirely 

fortuitous.

The police, the Commonwealth's Attorney, the 

Police Court, the jury and the Hustings Court, each 
in turn, disregarded the evidence which adequately 
buttressed the presumption of innocence and dis­

credited the evidence which proved innocence.
They conclusively presumed this individual to be 

guilty from the mere fact that he was in the 
vicinity where others of his race were engaged in



32

untoward conduct» As a result, he was required 

to obtain surety, stand trial in the Police 

Court, retain counsel for trial in the Hustings 
Court, and later to procure assistance for 

defraying the cost of the transcript and the 

cost for printing the record.. The entire pro­
cess illustrates unjust oppression; and its- 

repetition against other persons similarly con­

ditioned should be forestalled here and now.

We do not argue against a law which com­

mands an officer to arrest, for wrongdoing 

which he has seen. But,we earnestly submit 

that no statute should stand which subjects 

citizens to arrest for what an officer believes 

to be their purpose.

Respectfully submitted,

S. W„ TUCKER 
Of Counsel



S. W, TUCKER 
HAROLD M. MARSH 
HILL, TUCKER & MARSH 

214 East Clay Street 
Richmond, Virginia 23219

JACK GREENBERG 
JAMES M. NABRIT, III

10 Columbus Circle, Suite 2030 
New York, New York 10019

Counsel for Plaintiff-in-Error

C E R T I F I C A T E

I .certify that three copies hereof were 
delivered to the office of the Attorney 
General of Virginia on or before the 

date of filing.

September 1969



AN ORDINANCE-No. 68-79-44

(Adopted April 7, 1968)

To empower and authorize the Chief of Bureau 
of Police or his designate to make regu­
lations for the preservation of the 
safety, health, peace, good order, comfort 
convenience, morals and welfare of the 
city of Richmond and its inhabitants and 
to provide penalties for violation thereof

WHEREAS, there has been disorderly conduct, 
disturbances and disorderly assemblages in 
public places within this city which consti­
tute a danger to the safety, health, peace, 
good order and welfare of the citizens of 
this city, and,

WHEREAS, the aforesaid acts commenced on 
the evening of Saturday, April 6, 1968, and 
have persisted all during the night and con­
tinue to exist which present a clear and 
present danger to the citizens of this City, 
and their property; Now, Therefore,

The City of Richmond Hereby Ordains:

That the Chief of the Bureau of Police, or 
his designate, is hereby authorized and 
empowered to regulate, restrict or prohibit 
any assembly of persons or the movement of 
persons and vehicles in the said city and 
said power and authorization shall include 
the banning of persons and/or vehicles from 
said streets during such hours as said Chief 
of Police or his designate may deem proper 
in the necessary protection of persons and 
property„

Any person or persons violating any pro­
vision of said regulation, restriction, pro­
hibition or curfew shall upon conviction 
thereof be punished pursuant to §1-6 of 
Richmond City Code of 1963, as amended.

App. 1



App. 2

This ordinance shall be force and effect 
immediately upon passage.