Hall v. Commonwealth of Virgina Brief of Plaintiff-in-Error

    SUPREME COURT OF APPEALS OF VIRGINIA
At Richmond

Record No. 7213

ALVIN HALL,
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



TABLE OF CONTENTS 

Statement Of Material Proceedings
Page

1

Statement Of The Facts * . . . . . . . .  4

The Assignment of Errors , . . . . . . .

The Question Presented

Argument . . . . . . . . . . . . . . . . .
I. The Plaintiff-In-Error Was Not

A Part Of The Assembly . . . . . . .
II. Uncontradicted And Unimpeached 

Testimony Not Inherently 
Incredible May Not Be 
Arbitrarily Disregarded . . . . . .

III. Citizens May Not Be Impelled To 
Forego First Amendment Rights For 
Fear Of Violating An Unclear Law. .
A. Only One Definition Of 

Unlawful Assembly Is 
Challenged Here . . . . . . . .

B. The Constitutional Privilege 
Transcends State Interest .. . .

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

D. The Statute Is Vague . . . . .

IV. No Overt Act Justified Arrest .■. .

Conclusion . « . . . . . . . . . . . . .

6
7

8

8

12

14

14

17

20

21 -

23
26

28Certificate
Appendix (Richmond Ord. #68-79-44} • A P P - 1



11
TABLE OF CITATIONS 

Cases
Page

Ashton Vo K e n t u c k y 384 U.S. 195,
86 SoCt 1407, 16 L. ed 2d 469 . , , 22,23

Baker v. Binder, 274 F, Supp, 658 . . 23

Cantwell v. Connecticut, 310 U.S. 296,
60 S.Ct, 90'G, 84 L, ed 2d 1213 . . 22

Carmichael v. Allen, 267 F. Supp,. 9 85, 2 3
Cox v, Louisiana, 379. U .S . 536,

85 S, Ct.. 453, .13 L, ed 2d' 471 . . 22
Devine v. Woodf; 286 F, Supp, 102 G . , 16

Edwards v. South Carolina, 372 U,S. 229,
83 S.Ct. 680, 9 L .ed 2d 697 . . . . 22

w'
Epperson & Carter v, DeJarnette, 164 Va.

482., 180 SE 412 . . . . . . . . . .  ~ 12

Gamble v. Commonwealth, 161 Va. 1024,
170 SE 761 . . . . . . . .  . . , .. 10

Giacco v* Pennsylvania, 382 UVS, 399,
86 S.Ct. 518, 15 L. ed 2d 477 . . . 21

Hague v. 0,1,0,, 307 U.S-. 496, 59 S.Ct.
954 ,.. 83 L, ed 1423 18

Heard vi Rizzo,. 281-F. Supp. 720 . . ■. 1 5

Lanzetta v. - New Jersey,. 306 U,S. 451,
S.Ct. 618, 83 L, ed 888 . = . . . . 2.1



ill
Page

Metropolitan L. Ins, Co, v„ Botto,
153 Va. 468, 14 SE. 625 . , . O  «! ® 12

Powers v. Commonwealtk, 182 Va. 
30 S„E, 2d 22 o .  . , , ,  .  ,

669,
® ©  3 10

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

261,
e s» ® * 12

Rollins Vo Shannon, 292 F, Supp. 580 . 16
SiIvey v. Johnston, 193 Va. 677, 

70 S ,E , 2d 280 . . . . . . . ®  ®  o 12
Smith Vo Commonwealth, 192 v a - 453,

65 S.E, 2d 528 , . ............. .. It
Spratley v. Commonwealth, 154 Va 

152 S.E. 362
. 854,

Terminiello v, Chicago, 337 u.S. 1,
69 S.Ct. 894, 93 L, ed 1131 , . . , 19,22

Thomas v. Danville, 207 Va, 656,
152 S,E, 265 » . . . . , . , , . !9

T h cmp son y L c u j s v i I is, 36 7 US. 199 .
80 S.Ct. 624. 4 L , ed • 3 65 4 ,
80 A . L . R . i d , 8 5 5 »• * * i> c 1 0,

University Committee to Er V pS '• ■?
Viet Nam v. Gunn, 289 F, Supp , 469 „ , 19
Ware v, Nichols, .266 F , Supp. £6 4 , ,

7: cher Author1 ties

0, S, Constitution, Amendment I , 3,17,21,24
U. S , Constitution, Amendment XIV

7,10,14,17,18,25
Acts of Va. Assembly, 1968, Ch, 460,



Page
Code of Virginia:

§18 o1-87 . . . . . . . . . . . . . . .  21
§18=1-227 . . . . = . i . o . . . ■ .. 24
§18 = 1-237 ,, o . . . . .  . 24
§18=1-254 . . . . . . . . . . . . . .  12
§18o1-254 =1(c> . . . . . . . . . .  7,14,17
§18 o1-254 o 4 24
§18=1-254.8 24

Ordinance' of City of Richmond #68-79-44 
(April 7 r 1968) . . . . . . . .  .10,11/App.l

Code of District of Columbia, §22-1107. 25



IN THE

SUPREME COURT OF APPEALS OF VIRGINIA 

At Richmond

Record No.* 7213

ALVIN HALL,
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 

unlawfully 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



2
disturbing the peace or exciting public alarm 

or disorder," to which 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 impermissably 

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 his case coincided with the hypotheses 

of innocence which he had previously contended 

the Cpmmonwealth had failed to. exclude. There­

upon the defendant renewed his motion to strike 

the evidence which motion was overruled and 
exception was saved.

Exception was saved to the granting of 

instruction number 4 by which the jurors were 

told that the credibility of witnesses is a 
question exclusively for the jury; the objec­

tion being founded upon the circumstance that



3
there was no conflict in the evidence.

Exception was saved to instruction number 6 

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 impermissable impinge­

ment upon First Amendment freedoms, and the 

proscribed purpose of "disturbing the peace or 

exciting public alarm or disorder" being too 

vague to meet constitutional requirements of 

due process .
Exception was saved to the denial of the 

motion to set aside the verdict of the jury 

on the grounds previously urged. The defend­

ant was sentenced in accordance with the ver­

dict of the jury,
A motion that execution of the sentence be 

suspended to permit this application for a 

writ of error was granted. Notice of appeal 

was filed on July 19, 1968. Designation of 

the parts of the record to be printed was



4
filed on August 28, 196 8.,

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 Dr, Martin Luther King, Jr,, 

in Memphis, Tennessee, Police Sergeant Conner 

was one of two sergeants in charge of two squads 

consisting of about eighteen officers. In a 

school bus they left the police substation at 

9th and Marshall Streets between 8:00 and 9:00 

P.Mo, pursuant to a call, and proceeded west on 

Broad Street. As they approached Third Street, 

Sergeant Conner saw a 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



5
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, 9, 14 f 18, 19). State Troopers 

(none of whom testified) were "more or less 

following the group and some were on the other 

corner of Second and Broad Streets" (R. 11).

No officer who testified was ever any closer 

to Second Street.than the Surplus Store 

(R. 10), number 208 East Broad (R> 16), the 

school bus which brought them to the scene hav­

ing stopped in the bus stop "on the east end 

of the block" (R„ 18).
The defendant was captured within the cor­

don of police officers.
Several persons thus captured dropped 

"brickbats, a couple of bottles, a pepsi-cola 

bottle and some other type bottle, a couple of 

sticks and two knives" (R. 9).

At the time that this group was crossing 

Second Street, the defendant was walking south-



6
wardiy on Second Street In. the direction of 

Broad Street, When he got to Broad Street, he 

turned to his left to proceed eastwardly on 

Broad passing some State Troopers who were on 

the corner at the time. The crowd which had 

crossed Second Street was then in front of him, 

proceeding eastwardly on Broad Street. The 

State Troopers closed in from the west, join­

ing the City police on the east, thus complet­
ing the cordon, (R. 26-29)

THE ASSIGNMENTS OF ERROR 

1. 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 not walking southwardly 

on Second Street toward its intersection with 

Broad at the time when the alleged unlawful 

assembly, proceeding eastwardly on Broad Street, 
was crossing Second Street,

2c There having been no material conflict in 

the evidence, the Court erred in instructing 

the jury that they were the judges of the credi­

bility of the witnesses; and thereby the defend-



7
ant was denied due process of law in vio­

lation of the Fourteenth Amendment.
3o On the motion to strike the evidence 

and again in granting instruction number 6, 

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 

proscribes an assembly of three or more 

persons without authority of law and for 

the purpose of disturbing the peace or 

exciting public alarm or disorder.

QUESTIONS PRESENTED 

I

Is there any evidence that the defendant 
was with, the group before it crossed Second 

Street or that thereafter he adopted its 

purpose as his own?
II

May any trier of fact arbitarily disregard 

uncontradicted testimony which is not inher­

ently incredible?
III

May citizens be required to forego the



8
right of peaceable assembly for fear that its 

exercise 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 dis- 

order, may an assembly be forbidden because 

police officers believe such to be its purpose?

ARGUMENT

I

The Evidence Does Not Show That The 
Defendant Was a Part Of The Assembly

The three witness for the Commonwealth, all 

Richmond police officers, testified that they 

were a part of a squad which alighted from the 

bus in the two hundred block of East Broad 

Street and formed a line across the sidewalk, 

facing westwardly toward Second Street for the 

purpose of intercepting the group which had just 

crossed Second Street, proceeding eastwardly0 
(R. 8-9, 14, 17) These officers did not get up 

as far as Second Street (R. 12).

The defendant showed that as the group was



9
crossing Second Street he was proceeding 

southwardly on Second Street, towards Broad 

and that,, after the group had crossed, he 

turned to his left and proceeded southwardly 

on Broad behind the group (R. 26-29).

No witness was called who was on the west 

side of the group or who had been stationed 

at Second Street or who had the responsibil­

ity of insuring that no innocent person walk­

ing down Second Street and turning into Broad 

would have been swept into the police cordon. 

No person was called to testify who was in 

position to know whether this defendant was 

or was not walking down Second Street when 

the group crossed Second Street.
Office Burley testified that this defendant 

was in the "group" of persons who were sur­

rounded by the police. (R. 15) But there is 

no testimony to show that the defendant was 

one of the "group of disorderly persons" 

which the police had been dispatched to 

investigate
The evidence to connect this defendant with



10
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 consistent with 

guilt but must be inconsistent with innocence. 

Gamble v. Commonwealth, 161 Va, 1024, 170 S.E.
561 (1933), Powers v. Commonwealth, 182 Va.

669, 30 S.E, 2d 22 (1944), Smith v. 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 vio­

lation of the Due Process Clause of the Four­

teenth Amendment. See Thompson v. Louisville 

362 U.S. 199,80 S.Ct. 624, 4 L. ed 2d 654, 80 
A.L.R. 2d 1355 (1960).

The realities of the situation at the time of 

the arrest can better be understood if reference 

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,



11
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 

during such hours as said Chief of Police or 

his designate may deem proper in the neces­

sary protection of persons and property."

The. preamble to the ordinance shows the 
Council's concern for the "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 * * * [which] commenced on the 

evening of Saturday, April 6, 1968" (two days 

following Dr. King’s assassination. 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



12
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 

witnesses testify positively to a fact and are 

uncontradicted, the jury is not at liberty to 

discredit their testimony, Presley v. Common­

wealth, 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, 681, 70 S.E. 2d 280 (1952)„

In Presley v, Commonwealth, supra., the defend­

ant 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



13
the jury's disregard of such uncontradicted 

evidence was arbitary. It was also held that 

the defendant's contention, 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 improbable story.

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 coirimi tted, is not enough 

to render him guilty of its commission.

Spratley v. Commonwealth, 154 Va. 854, 860, 

152 S.E. 36.2 (1930) .
The jury was not told by the Court that 

the evidence was insufficient to support 

a finding of guilt. The jury was told that



14
the credibility of witnessess is a question 

exclusively 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 of the Due Process Clause of the Four­

teenth 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 Common­

wealth 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;



15
"Whenever three or more persons assemble 
with the common intent or with means and 
preparations 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

unlawful violence as an element of unlawful
as s emb ly .

Similarly, we do not attack the common law 

concept of unlawful assembly. The author- 

ities which purport to define the common law 

crime of unlawful assembly clearly indicate 

that a demonstrable intention 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



16
definition of unlawful assembly, viz:

"The meeting together of three or more per­
sons to the disturbance of the public peace, 
and with the intention of co-operating in 
the forcible and violent execution of some 
unlawful enterpriseI * * * To constitute 
offense it must appear that there was 
common intent of persons assembled to 
attain purpose, whether lawful or unlawful, 
by commission, of act_s of intimidation and 
disorder likely to produce danger to peace 
of neighborhood, and actually tending to 
inspire courageous persons with well- 
grounded fear of serious breaches of 
public peace," [Emphasis supplied] (281 
F. Sapp . 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-tsrrorw-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, 2 86 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 
persons in the neighborhood of such 
assembly to fear on reasonable grounds 
that the persons so assembled would com­
mit a breach of the peace or provoke 
others to do so," [Emphasis supplied]
(286 F. Suppi at 105)

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 men­

tioned, 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 Fourteenth Amendment of the Constitution 

of the United States as it incorporates the 

First Amendment and further, as applied in



18
this case, the statute violates the Privileges 

and Immunities Clause of the Fourteenth Amend­

ment.
In Hague v. C ,1 ,0, 307 U.S. 496, 59 S.Ct. 9 54, 

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 citizenship, has the protection of 

the Fourteenth Amendment, and "must not, in the 

guise of regulation, be abridged or denied."

(307 U.S. at 515-16). The challenged statutory 

definition of unlawful assembly goes further 

than the ordinance in Hague. It charges a citi­

zen 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



19
demonstrations would clearly be within the

reach of the statute.

This branch of the case is controled by
1/

Thomas v. City of Danville, 207 Va. 656,

662-3, 152 S.E, 2d 265 (1967). 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 
community * * * [andj from * * * holding 
unlawful assemblies such as to unreasonably 
disturb or alarm the public * * *,

The statute now under review proscribes an

assembly 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 judi­

cial prohibitions because the subjects 

thereof did not constitute "a serious substan­

tive evil that rises far above public incon­

venience , annoyance, or unrest". (207 Va. at

•L/Thomas was cited and followed in University 
Committee to End War in Viet Mam v. Gunn, 289 
F. Supp. 469,475 (W.D.Tex. 1968), quod vide.



20
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 constitution­

ally privileged and the statute purports to pro­

scribe an unexecuted purpose of committing such 

acts o

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 exciting act, 

has in fact been committed. It does not purport 

to say how, under such circumstances, 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



21
carrying of firearms 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 carrying firearms 

or wearing red armbands. See Giaecio 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 constitu­
tionally infirmity. When. First Amendment 

rights are involed, we look even more closely 

lest, under the guise of regulating conduct 

that is reachable by the police power, free­

dom of speech or of the press suffer. We 

said in Cantwell v. Connecticut, * * *r that 

such a law must be 'narrowly drawn to pre­
vent the supposed evil' *,* * and that a



22
conviction 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 "excit­

ing public alarm or disorder", as used in the 

instant statute, suffer the same infirmity of 

overbreadth which has caused courts to inval­

idate legislation because it was susceptible 
of being read as impinging upon First Amend­

ment freedomso Cantwell v. Connecticut, 310 
UaS, 296, 60 S. Ct. 900, 84 L, ed 1213 (1940) 
(breach of the peace conviction based on a com­

mon law concept), Terminlello v. City of 

Chicago, supra, (disorderly conduct tending tof'
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) (dongregating "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 

v. Kentucky, supra, (Criminal libel defined 

as "any writing calculated to creat disturb­

ances of the peace"), Ware v. Nichols, 266 

F. Supp, 564 (N.D Miss, 1967) (assemble for 

the purpose of advocating, teaching, etc.) 

Carmichael v. Allen, 267 F. Supp. 985 (N. D, 
Ga. 1966) ("acts in a violent, turbulent, 

quarrelsome, boisterous, indecent or dis­

orderly manner * * * or to do anything tend­

ing to disturb the good order, morals, peace 

or dignity of the City".) Baker v. Binder, 

274 F. Supp, 658, 661 (W.D. Ky, 1967) ("No 

two or more persons shall * * * go forth for 

the purpose of intimidating, alarming, dis­

turbing 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



24
obscene publications and' transcriptions - (Code 

§18al-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 discretion 

"profanely curse or swear" in public. (By way 

of contrast, see §22-1107 of the Code of the 

District of Columbia which forbids persons "to 
curse, swear, or make use of any profane lan­

guage or indecent or obscene words" in any public 

place.)

If language allegedly 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 proscription.

In this latter event, if the police were to 

take any action, they were charged by Code §18.1- 

254.8 to "go among the persons assembled or as 

near them as possible and command them in the 

name of the State immediately to disperse"; and 

those who failed to do so may have been subject 
to punishment as provided in Code §18.1-254,4.



25
It could not be consonant with Fourteenth 

Amendment equal protection or due process 

concepts to allow the police an arbitrary 

discretion to arrest for unlawful assembly 
without a prior order to disperse in some 

cases and in others to arrest only for fail­

ure to comply with an order to disperse.

If the obscenities were not considered 

punishable as such and if, in fact, there was 

no profanity, then there should have been no 

arrest because the assembly appears to have 

been otherwise peaceable. Unless and until 

it had commited some overt act calculated to 

disturb the peace, the assembly was constitu­

tionally 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 far as this record shows. 

Having been authorized by the April 7, 1968 

ordinance (copy of which is appended hereto)



26
to regulate, restrict or prohibit 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 proceeded first 

to remove this group of Negroes from the street 

and thereafter to charge its members with dis­
orderly conduct.

The statute now said to have been violated 

purports to punish the purpose which the State 

now attributes to the individuals in the 

assembly. 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 protections 

of the First and Fourteenth Amendments become 
meaningless.

CONCLUSION

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

nition of unlawful assembly. Because it dis-



27
peases with objective proof of wrong doing,, 

this definition of unlawful assembly was 

employed by the Commonwealth's Attorney to 

facilitate conviction 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 discredited 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 

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 process illustrates



28
unjust oppression; and its repetition against 
other persons similarly conditioned should be 

forestalled here and nowc

We do not argue against a law which commands 
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 Me 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 19 69,



App. 1

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 continue 
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



App» 2

Richmc '£,a City ;Code of 1963* as -amended=

This ordinance shall be force and eff
inured!. UP'on passage.