Fax from Smiley RE: Congressional primary information

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U n i t e d  S t a t e s  C o u r t  o f  A p p e a l s :

Jfor t̂ e &ebentfj Circuit

No. 1 8 3 8 9

UNITED STATES OF AMERICA, ex rel.,
ALBERT A. RABY,

Petitioner-Appellee,
vs.

JOSEPH r. WOODS, Sheriff of Cook County, Illinois, 
and WINSTON MOORE, Warden of the Cook County 
Jail,

Respond,ents-Appellants.

Appeal from the United States District Court for the 
Northern District of Illinois, Eastern Division. 
Honorable Jambs B. Parsons, Judge Presiding.

BRIEF AND ADDITIONAL APPENDIX 
FOR PETITIONER-APPELLEE

L eo E. H olt and 
M aria A . E uden 

30 W. Washington Street 
Chicago, Illinois (10602 
ANdover 3-6054

Attorneys for Petitioner-Appellee

M IP W E S T  L A W  P R I N T I N G  C D . .  C H I C A G O  6 0 6 0 1 . F I N A N C I A L  6 - 3 9 8 8



TABLE OF CONTENTS

PAGE

Statement of Facts ..................................................  1

Argument ...............................................   3

I.
The District Court Judge Correctly Deter­

mined That The Instruction Given The Jury In 
Petitioner’s State Trial Deprived Petitioner Of 
Due Process Of L a w ......................................    3

II.
The Petitioner-Appellee Should Be Discharged 

From The Custody Of The Respondents Because 
His State Trial Violated The Provisions Of The 
Fifth Amendment’s Double Jeopardy Clause .....  8

Conclusion ........................................................................... 14

T able Of A uthorities

Application of DeToro, 247 F. Supp. 840 ....................  11

City of Chicago v. The Union Ice Cream Co., 252 111.
311 ..................................................................................... 9

City of Decatur v. Schlick, 269 111. 181 ......................... 9

Darr v. Burford, 339 U.S. 200 ........................................  11

Davis v. Maryland House of Correction, 247 F. Supp.
869 ......................................................................................  11

Evans v. Cunningham, 335 F. 2d 491 .......................... 9, 12

Frisbie v. Collins, 342 U.S. 519 ........................................  11



11

Hankins v. People, 106 111. 628 ........................................ 9

Ohio, Indiana & Western Bailway Co. v. People, 39 
111. App. 473 ..................................................................  9

Patton v. North Carolina, 256 F. Snpp. 225 ............... 11

People v. Behymer, 48 111. App. 2d 218........................  9

Bobbins v. People, 95 111. 175 ...................................... 9

Bowe v. Peyton, 383 F. 2d 709 ...................................... 11

Thomas v. Cunningham, 335 F. 2d 67 ..........................  11

Village of Winnetka v. Sinnett, 272 111. App. 143 ..... 9

Village of Mt. Prospect v. Malouf, 103 111. App. 2d 88 9

Waller v. Florida, 397 U.S. 387 .................. ...............  8, 12

Wragg v. Penn Township, 94 III. 11 ..............................8, 9

Sokol, Federal Habeas Corpus, Sec. 23 (2d Ed.) ..... 11

Fifth Amendment to the United States Constitution .. 9

Fourteenth Amendment to the United States Consti­
tution ..............................................................................  9

28 U.S.C.A., Section 2254 ...............................................  9
Chapter 38, Section 3-3, Hlinois Bevised Statutes .... 12



Hlntije

tim'teti s ta tes  Court ot Appeals
Jf or tfje ibetocntf) Circuit

No. 1 8 3 8 9

UNITED STATES OF AMERICA, ex rel.,
ALBERT A. RABY,

Petitioner-Appellee,
vs.

JOSEPH I. WOODS, Sheriff of Cook County, Illinois, 
and WINSTON MOORE, Warden of the Cook County 
Jail,

Respondents-Appellants.

Appeal from the United States District Court for the 
Northern District of Illinois, Eastern Division. 
Honorable James B. Parsons, Judge Presiding.

BRIEF FOR PETITIONER-APPELLEE.



— 2—

STATEMENT OF FACTS.

The District Judge, after hearing, determined the facts 
to be that the petitioner organized a protest demonstra­
tion against the retention of then Superintendent Ben­
jamin Willis. (Rec. 8, Add. App. 6). That the demon­
strators marched around City Hall while petitioner en­
tered the building for a conference with the Mayor. (Rec. 
8, Add. App. 6). When petitioner returned he told the 
demonstrators that his conference with the Mayor had 
been unsatisfactory. Petitioner and other demonstrators 
then proceeded to the intersection of Randolph and 
La Salle Streets and sat in the intersection. (Rec. 9, 
Add. App. 6-7). Petitioner remained on the ground after 
being told he was under arrest. (Rec. 9-10, Add. App. 7).

Petitioner was then charged with the violation of five 
state statutes and one municipal ordinance violation. 
(State Rec. 80-81, Add. App. 1-2). Prior to the commence­
ment of the State trial petitioner presented a motion 
to the State court for discharge on the ground that trial 
violated the Fifth Amendment’s double jeopardy provi­
sion. (State Rec. 80-81, Add. App. 1-2). This motion was 
denied. (State Rec. 244, Add. App. 2).



ARGUMENT.

— 3—

I.
THE DISTRICT COURT JUDGE CORRECTLY DETER­

MINED THAT THE INSTRUCTION GIVEN THE JURY IN 
PETITIONER’S STATE TRIAL DEPRIVED PETITIONER OF 
DUE PROCESS OF LAW.

The appellants argue first, that the District Judge 
determined all the issues of law and fact in favor of the 
respondents. (Appellant’s Brief, p. 4). I f the appellants 
mean to suggest that the court determined the facts to 
be that Raby was limp prior to his arrest and remained 
in that position after his arrest, then we agree for that 
is what the court determined. (Rec. 9-12, Add. App. 6-9).

The appellants next argue that the court’s finding that 
the instruction to the jury denied Rahy due process of 
law in that the instruction was tantamount to a directed 
verdict is based upon a misapprehension of the law. 
The district Judge in announcing his decision said, “ . . . 
In considering the petition for a writ of habeas corpus 
on the question of resistance of arrest, I  not only re­
viewed the full transcript of the trial and the decision 
of the Illinois Court hut, in addition, conducted a full 
retrial of the entire incident. . . (Rec. 10, Add. App. 
7-8).

The appellants argue that the District Judge clearly 
erred in that he failed to fully read the instructions. 
(Appellants’ Brief, p. 5). Yet it is clear that the District 
Judge fully read the state court transcript and the opin­
ion of the Illinois court and was fully aware of the in­
structions tendered to the jury. In fact the District Judge



4-

in Ms opiMon recited two of the instructions given by 
the state court on the issue of resisting arrest. The other 
instruction is a mere recitation of the state statute, and 
it can hardly be argued that the District Judge was not 
aware of the statute or the instruction given regarding 
it. (Rec. 13-14, App. 9-11).

The District Judge’s opinion discusses the law appli­
cable to the facts and the state court instruction. The 
District Judge said:

There are two steps in performing an arrest. The 
first is the speaking of such words or the performing 
of such acts as brings to the conscience of the person 
arrested the fact that he is being placed under arrest.

The second is the taking of such person into cus­
tody. Even that step may be performed verbally or 
by the performance of some act.

The two steps in many instances merge into one. 
Under no circumstances, however, is the arrested 
person obliged under Illinois law to aid the arrest­
ing officer in effecting his own arrest. He need not 
affirmatively perform upon himself the act which is 
the duty of the arresting officer to perform. He is 
not required, even if commanded to do so, to place 
the handcuffs around his wrists, even if mechanically 
it were possible for him to do so, nor need he lock 
the door to his own cell, even if that were also me­
chanically capable of being done.

The Illinois statute is written differently from the 
statutes of the other states. The Illinois statute is 
written in broad sweeping language and does not, 
as the CaliforMa statute, for example, follow in the 
cases cited by defendants detailed various types of 
resistance or obstruction.



— 5—

It is, thus, proper to say that the Illinois statute 
is satisfied when the arrestee refrains from inten­
tionally acting affirmatively in any manner which 
would in the slightest degree frustrate or prevent the 
officer from carrying out the arrest. I f the use of 
the phrase “ passive resistance” is to be read as 
applicable to the Illinois statute, in which statute it 
does not appear, it must be read in such a manner 
as to require that the arrested person intentionally, 
and after being made conscious of the fact that he 
is being arrested, performed affirmatively some type 
of passivity which he was not performing immedi­
ately before the beginning of the arresting process.

I find from the transcript of the state trial and 
from the evidence produced before me that from the 
type of instruction given by the trial judge to the 
jury it would now be, as it was then, impossible for 
a jury to reach any type of intelligent evaluation of 
the defendant’s conduct as it was presented in the 
evidence at trial in order that the jury come to a 
conclusion that he, the petitioner, violated the Illinois 
Resistance of Arrest Statute.

It was particularly incumbent upon the trial judge 
in the light of the closing argument of the prose­
cutor to elaborate in detail what he meant by the 
phrase “ passive resistance.” It is axiomatic that a 
jury must be informed of the nature of the charge 
against the defendant and intelligently instructed 
as to the nature of that offense before it can per­
form its proper function in the judicial process.

Under the language of the instruction given, the 
jury was obliged to convict the defendant under any 
set of facts that might have been presented. I  find,



— 6—

therefore, that the instruction to the jury was so 
inadequate that the petitioner was deprived of due 
process of law guaranteed by the Fourteenth Amend­
ment.

I do not find that the use of the phrase “ passive 
resistance” may not be included in the instructions 
of the judge to the jury, but the instructions must 
be broad enough that the jury can understand what 
is meant at law by “ passive resistance” in order 
that it not include conduct which is not in fact affir­
mative conduct on the part of the arrested person. 
(Rec. 15-18, Add. App. 11-13).

The instruction is a model of what an instruction 
should not be. Under the language of the instruction 
the jury had no choice but to convict the petitioner, or 
else disregard their oath to follow the instructions of 
the court.

The difficulty with this instruction is, that given the 
everyday, ordinary, plain meaning of words, the defend­
ant must be found guilty under any circumstances.

Webster’s New Twentieth Century Dictionary, Second 
Edition defines these terms as follows:

Active: 1. acting, functioning; moving; working.
2. capable of acting, functioning, etc. 3. causing action 
motion or change. 4. characterized by quick motion 
or the disposition to move with speed; nimble; lively; 
brisk; agile; as an active animal. . . .
Passive: 1. receiving impressions from external
agents; not acting; being the object of action rather 
than the subject. The mind is wholly passive in the 
reception of all its simple ideas. 2. unresisting; not 
opposing; receiving or suffering without resistance; 
as passive submission to the law. 3. mentally or phys­



— 7-

ically inactive; lifeless; unenthusiastic; unrespon­
sive. . . .

Without any help in defining these terms, and without 
any limiting instruction defining the nature of the crime, 
the jury is left to sift for itself the conduct or the lack 
of conduct involved in this charge. If anything is clear, 
it is that the legislature did not intend to sweep all 
human conduct (active), or lack of human conduct (pas­
sive), into the over-broad, vague, sweeping statute. Noth­
ing in logic or legal experience suggests that the legisla­
ture intended to enact such an overbroad, all-encompass­
ing act. Certainly it is manifest that such a statute could 
not stand the test of constitutional due process.

The law of this case, as given to the jury, is that the 
petitioner should be convicted under these circumstances: 
if he was acting; if he was not acting; if he was func­
tioning; if he was not functioning; if he was causing 
action; if he was being the object of action; if he was 
resisting; if he was not opposing. If the state trial judge 
has accurately interpretated this statute in his instruc­
tion, then there can hardly be any doubt that the statute 
is unconstitutionally void for vagueness and overbreadth.

The appellants next argue that the rule announced by 
the District Judge is incorrect and results in an impos­
sible burden upon police officers. Appellants then cite 
certain examples of how the rule would operate. (Appel­
lants’ Brief, pp. 6-7). Such a method of interpretation 
could, of course, be applied to drain the sense and mean­
ing out of any constitutional or statutory provision, or 
court opinion. In no case has the statute been applied 
or construed in the irrational manner the appellants 
suggest, and there is little likelihood that any court 
would so construe it.



8-

II.

THE PETITIONER-APPELLEE SHOULD BE DISCHARGED
FROM THE CUSTODY OF THE RESPONDENTS BECAUSE 
HIS STATE TRIAL VIOLATED THE PROVISIONS OF THE
FIFTH AMENDMENT’S DOUBLE JEOPARDY CLAUSE.

Prior to the commencement of the State trial the peti­
tioner presented to the State Court a motion to dismiss 
the complaints against him based npon a prior trial in 
the state court on charges of violating a municipal ordi­
nance of the City of Chicago. Petitioner alleged that the 
State trial out of which his convictions grew was viola­
tive of the Fifth and Fourteenth Amendments to the 
United States Constitution, in that the City of Chicago 
had tried petitioner for obstructing traffic which offense 
grew out of the very same conduct which was the subject 
of the second State trial. Petitioner alleged that the 
instant state trial placed him twice in jeopardy for the 
same conduct. This contention was denied by the State 
trial court.

Subsequent to the ruling of the district court in the 
instant case the United States Supreme Court decided 
Waller v. Florida, 397 U.S. 387.

In Waller the Supreme Court repudiated the doctrine 
that municipalities were vested with such sovereign 
powers as to enable them to prosecute for violations of 
ordinances notwithstanding a prior state prosecution, or 
vice versa. The Waller court overruled a long line of 
cases in Illinois commencing with Wragg v. Penn Town­
ship, 94 111. 11 (1879).

It is now clear that municipalities possess no sovereign 
power independently of the State, and therefore the State 
and a municipality cannot constitutionally punish a per­



— 9 —

son for the same conduct. Such trials are repugnant to 
the double jeopardy provision of the Fifth Amendment 
as made applicable to the states by the Fourteenth 
Amendment.

The issue here was not presented to the Illinois Su­
preme Court and the question arises whether it is prop­
erly before this court, petitioner admittedly having not 
exhausted the issue.

In the face of a long line of Illinois decisions, standing 
for the proposition that a municipality and the state 
could constitutionally punish for the same conduct, Wragg 
v. Penn Township, 94 111. 11 (1879); Robbins v. People, 
95 111. 175 (1880); Hankins v. People, 106 111. 628 (1883); 
City of Chicago v. The Union Ice Cream Co., 252 111. 311 
(1911); City of Decatur v. Schlick, 269 111. 181 (1915); 
Ohio, Indiana & Western Railway Co. v. People, 39 111. 
App. 473 (1888); Village of Winnetka v. Sinnett, 272 111. 
App. 143 (1933); People v. Behymer, 48 111. App. 2d 218 
(1964); and Village of Mt. Prospect v. Malouf, 103 Til. 
App. 2d 88 (1968), the petitioner did not urge the matter 
on appeal in the State, nor before the district court on 
his habeas petition. 28 U.S.C.A., Sec. 2254, provides that 
no exhaustion is necessary where there is “ the existence 
of circumstances rendering such (state) process ineffec­
tive to protect the rights of the prisoner.” In Evans v. 
Cunningham, 335 F. 2d 491, the court had substantially 
the same problem before it. There the court said:

Evans has not undertaken to present his legal con­
tention to the state courts. The reason he advances 
for not having done so is a recent decision of the 
Virginia Supreme Court of Appeals. . . .

Over a period of many years there developed a 
judicially fashioned doctrine that a federal court



10—

could not entertain a writ of habeas corpus filed by 
a state prisoner unless the state prisoner had pre­
viously exhausted available state remedies. The judi­
cially fashioned rule was codified in 1948 as 28 
U.S.C.A., Sec. 2254. . . .

The prohibition of Sec. 2254 is mandatory, but the 
section, itself contains two exceptions to the rule. 
The prohibitive rule does not apply if the state pro­
vides no remedy or if there are circumstances which 
make resort to the state remedy ineffective and futile. 
The latter exception seems applicable here.

It is true that this petitioner, Evans, is not the 
same petitioner whose identical contention the Su­
preme Court of Appeals of Virginia considered and 
decided in Sims v. Cunningham. The Sims case stands 
however, as the authoritative and considered judg­
ment of the Supreme Court of Appeals of Virginia. 
It was decided only two years ago as of this writing 
and was even younger than that when Evans filed 
his petition in the District Court. Since 1962 there 
has been no substantial change in the composition 
of Virginia’s [Supreme Court of Appeals, and there 
is no suggestion of any possible reason to suppose 
that the Court might reconsider its considererd 
judgment in the recent Sims case. Under these cir­
cumstances, any competent lawyer would advise 
Evans that he was wasting his time if he undertook 
to persuade the Virginia Court of Appeals to re­
verse itself, unless he was armed with some fresh 
argument which Sims had not presented. Evans had 
none. His outstandingly able, court-appointed counsel 
can only reiterate the same contentions on the sub­
stantive issue which Sims presented to the Virginia 
Court, though his reiteration is through and com­
plete. . . .

Here, Evans and Sims are not the same indi­
vidual. They were not codefendants, nor were they 
charged with complicity in the same crime. With



— 11-

respect to their substantive contention here, however, 
they stand as if identical. The substantive question, 
which is uncomplicated by any factual controversy, 
is the same whether presented to us by Sims or 
Evans. It appears unnecessary under the exhaustion 
of remedies doctrine that we decline to reach the 
merits of the issue as tendered by Evans, when we 
would be compelled to reach the merits of the same 
issue if it were tendered by Sims. This is in keeping 
with the teaching of Fay v. Noia, 372 U.S. 391, 83 
S. Ct. 822, 9 L. Ed. 837. (Emphasis supplied.)

Just as Evans and Sims stood as if identical, so Eaby 
stood as if identical to Wragg, Robbins, Hankins, The 
Union Ice Cream Co., Schlick, Ohio, Indiana & Western 
Railway Co., Sinnett and Behymer. The long line of 
cases in Illinois prior to the enactment of the new Illi­
nois Criminal Code, and the decision in Behymer subse­
quent to the enactment of the Code made it a futile 
gesture for Eaby to present the issue to the State Su­
preme Court, and also a futile gesture to present the 
issue to the district court. But such failure under the 
circumstances does not constitute failure to exhaust state 
remedies, or a deliberate bypass of state remedies. See: 
Barr v. Burford, 339 U.S. 200; Frisbie v. Collins, 342 
U.S. 519; Rowe v. Peyton, 383 F. 2d 709; Thomas v. Cun­
ningham, 335 F. 2d 67; Patton v. North Carolina, 256 F. 
Supp. 225; Application of DeToro, 247 F. Supp. 840; 
Davis v. Maryland House of Correction, 247 F. Supp. 
869. See also: Sokol, Federal Habeas Corpus, Sec. 23 
(2d Ed.).

The next obstacle to reaching the merits of petitioner- 
appellee’s contention is whether this Honorable Court can 
decide the issue in view of the fact that petitioner’s 
contention was not presented to the district court. The 
issue here sought to be presented was not controverted



12-

in the State court. The State court merely applied the 
doctrine of stare decisis and denied Raby’s motion to 
dismiss. In this posture there is no factual controversy, 
only a pure question of law. The Waller court opinion 
very clearly holds that a trial based upon a state statute 
subsequent to trial by a municipality for the same offense 
is constitutionally impermissible.

In Evans v. Cunningham, 335 F. 2d 491, 496, the court 
had before it the question of the propriety of a review­
ing court determining the merits of a case without a 
prior ruling by the district court on the issue. There the 
court said:

Ordinarily we would not undertake to dispose of a 
case on the merits if the District Court had faded to 
reach them on procedural grounds. If we found the 
procedural ground insufficient to support dismissal, 
we would usually remand the case to the District 
Court to consider and determine the case on the 
merits. There are obvious advantages in that prac­
tice, particularly to the appellate court which thus 
gains the benefit of a decision on the merits to en­
lighten its appellate reconsideration. Here, however, 
there are no factual questions to resolve, and an 
opinion by a District Judge on the legal issue could 
hardly be more enlightening to the appellate process 
than the full opinion of the Supreme Court of Ap­
peals of Virginia on the merits of the issue. Under 
the circumstances of this case, therefore, we think a 
remand to the District Court to consider the case on 
the merits would only delay decision without service 
of any useful purpose. (Emphasis supplied.)

Section 3-3, Chapter 38, Illinois Revised Statutes pro­
vides:

(a) When the same conduct of a defendant may 
establish the commission of more than one offense,



— 13—

the defendant may be prosecuted for each such of­
fense.

(b) If the several offenses are known to the 
proper prosecuting officer at the time of commencing 
the prosecution and are within the jurisdiction of a 
single court, they must be prosecuted in a single 
prosecution, except as provided in Subsection (c), if 
they are based on the same act.

(c) When 2 or more offenses are charged as 
required by Subsection (b), the court in the interest 
of justice may order that one or more of such charges 
shall be tried separately.

The provisions of Section 3-3 and the decision in 
Waller made it mandatory that either the City or the 
State prosecute the defendant for all known offenses in 
a single trial. Clearly it was known to both prosecuting 
authorities what the conduct of the petitioner was and 
what charges were pending against him. To hold that 
the petitioner can be prosecuted by the City and the 
State denies to the petitioner protection from double 
jeopardy as guaranteed to him by the Fifth and Four­
teenth Amendments and the equal protection of the laws 
as guaranteed to petitioner by the Fourteenth Amend­
ment.

Under the circumstances of the instant case it would 
serve no useful purpose to remand the cause to the Dis­
trict Court for decision, particularly where there are 
no factual issues that require determination. The status 
of the prevailing law and the record before the State 
trial court are clear. It is respectfully submitted there­
fore that this court should reach the issue here pre­
sented on the merits.



14-

CONCLUSION.

For the above and foregoing reasons the District Court 
Judge should be affirmed.

Respectfully submitted,

L eo E . H olt and 
M aria A. E lden 

30 W. Washington Street 
Chicago, Illinois 60602 
ANdover 3-6054

Attorneys for Petitioner-Appellee



3fn ifje
^Hntteb States Court of Appeals

Jfor tfje g>£bentfj Circuit

No. 1 8 3 8 9

UNITED STATES OF AMERICA, ex rel.,
ALBERT A. RABY,

Petitioner-Appellee,
vs.

JOSEPH I. WOODS, Sheriff of Cook County, Illinois, 
and WINSTON MOORE, Warden of the Cook County 
Jail,

Respondents-Appellants.

Appeal from the United States District Court for the 
Northern District of Illinois, Eastern Division. 
Honorable James B. Parsons, Judge Presiding.

ADDITIONAL APPENDIX FOR APPELLEE



INDEX TO APPENDIX

PAGE

Petition to Discharge .......................................................  1-2

Motion to Strike and Dismiss Denied ..........................  2

Transcript of Proceedings ............................................. 3-14



Petition to Discharge 1

REPORT OF PROCEEDINGS IN STATE COURT 

80 PETITION FOR DISCHARGE: (Caption omitted)

Now comes the defendant, Albert A. Raby, by his at­
torney, Leo E. Holt, and moves the Court to enter an 
order discharging the defendant, and as ground for 
said petition shows unto the court the following:

1. That the defendant was arrested on June 28, 
1965, at Randolph and LaSalle Streets in the City of 
Chicago, Illinois.

2. That the defendant was subsequently charged in 
separate complaints of violating Chapter 27, Sec. 291 
of the Municipal Code of Chicago, Chapter 38, Sec. 26- 
1(a)(1) of the Illinois Revised Statutes, Chapter 38, 
Sec. 31-1 of the Illinois Revised Stautes, Chapter 38, 
Sec. 8-1 of the Illinois Revised Statutes, Chapter 38, 
Sec. 26-1(1) of the Illinois Revised Stautes and Chap­
ter 23, Sec. 20-11 of the Illinois Revised Statutes.

3. That on or about January 24,1966, the defendant 
was tried before the Court and jury for violating 
Chapter 27, Sec. 291 of the Municipal Code of Chicago 
which trial resulted in the judge declaring a mistrial.

4. That again on or about March 21, 1966, the de­
fendant was put to trial for violating Chapter 27, Sec. 
291 of the Municipal Code of Chicago; that subsequent 
trial on March 21, 1966, violated the defendant’s con­
stitutional rights under the Fifth Amendment to the 
United States Constitution and Article n, Sec. 10 and 2 
of the Illinois State Constitution ’ that said trial result­
ed in a conviction against the defendant and the de­
fendant is now perfecting an appeal to the Illinois Su­
preme Court.



2 Petition to Discharge

81 5. That the occurrence alleged in the instant case
grew out of the same act for which the defendant has 
already been tried and found guilty and the prosecu­
tion knew at all times that act or acts, whether or not 
criminal, had been committed by the defendant at the 
alleged time and place.

6. That the complaint which seeks to charge the de­
fendant with Disorderly Conduct is defective and void 
for the reason that the statute under which the com­
plaint is laid is unconstitutional for the reason of 
vagueness.

7. That the complaint which seeks to charge the 
defendant with Resisting Arrest is wholly defective in 
that it fails to inform the defendant of the nature of 
charge against him in order to allow him an opportu­
nity to prepare his defense.

8. That a trial of the instant case will violate the 
defendant’s constitutional rights under the provisions 
of the Sixth Amendment to the United States Consti­
tution and Article II, Section 9 of the Illinois Constitu­
tion, and further that said trial will violate the express 
provisions of Chapter 38, Sec. 3-3(b), 3 -4(b)(l) and 
102-15 of the Illinois Revised Statutes.

9. Defendant attaches hereto his Memorandum of 
Law in support of his petition for discharge.

Wherefore, the defendant prays that the court will 
strike the complaints filed herein and that he be dis­
charged.

/ s /  Leo E. Holt
Attorney for Defendant

244 The Court: Motion to strike and dismiss is denied. 
The motion to amend the complaint is sustained.



Transcript of Proceedings 3

TRANSCRIPT OF PROCEEDINGS

had in the above-entitled cause, before the Honorable 
James B. Parsons, one of the Judges of said Court, 
in his courtroom in the United States Courthouse, Chi­
cago, Illinois, on December 31, 1969, at 3 :45 o’clock p.m.

3 The Court: Surely. United States of America ex
4 rel Albert Raby, Petitioner, versus Joseph I. Woods, 

Sheriff of Cook County, Illinois, and Winston Moore, 
Warden of the Cook County Jail, Respondents, in this 
Court No. 69 C 633.

The clarion issue rung forth by this case rises out 
of the recent efforts of people to express themselves 
in their drive for total participation in the democratic 
society that began a short decade ago and was emoted 
by what was called demonstrations, which were dramas 
acted out before television news media cameras and 
beamed into the consciences and concerns of the na­
tion.

Indeed, there had been during the labor movements 
of the 1920’s and 1930’s demonstrations which our Su­
preme Court labelled as expressions of speech guaran­
teed by the First Amendment to the Constitution of 
the United States. They took the form of parades, 
picketing and public editorialism, but in the last decade 
there has been added to them dimension, to-wit, the 
submitting of themselves to arrest under traditional 
statutes and ordinances denouncing what they called 
or what was called disturbances of the peace.

Those who engaged in these demonstrations delib­
erately, intentionally placed themselves in positions



4 Transcript of Proceedings

5 from which in the eyes of the public awareness they 
would be arrested and, being so arrested, would by 
such arrests dramatize as a part of their expression 
of speech their concern about matters public.

This matter is before me on a petition for a writ of 
habeas corpus. Jurisdiction is invoked pursuant to 
Section 3341 of Title 28, United States Code.

The petitioner, Albert A. Raby, a Negro civil rights 
worker, was arrested on June 28, 1965 in the course of 
a civil rights “ sit-in demonstration.” He was charged 
with disorderly conduct, being in violation of Chapter 
38, Section 26 -l(a )(l) of the Illinois Revised Statutes 
and with resistance of arrest in violation of Chapter 
38, Section 31 of the Illinois Revised Statutes.

He was tried before a jury and convicted of these 
charges in the Circuit Court of Cook County, Illinois, 
Municipal Department, First District. He was fined 
$500 for disorderly conduct and sentenced to serve 
three months in the Cook County Jail for resisting 
arrest.

The Supreme Court of Illinois affirmed his convic­
tion and a petition for certiorari in the Supreme Court 
of the United States was denied.

6 On the face of the petition I find a cause of action 
to be State remedies having been exhausted and res­
pondents having been properly served with process in 
accordance with the rules of procedure of the Federal 
Court, I  find that I have jurisdiction over the parties 
and over the subject matter under the Habeus (sic) 
Corpus Act of the United States.

The opinion and decision which follow have the fol­
lowing results: first, the Illinois disorderly conduct 
statute is found constitutional on its face and as ap-



Transcript of Proceedings 5

plied to the conduct of the petitioner, and the restraint 
heretofore placed by me upon the clerk of the Munic­
ipal Court to prevent his utilizing the bond money 
posted by petitioner in payment of his fine is removed 
and dissolved and he may use that money for the pay­
ment of that fine for disorderly conduct.

Second, the Illinois Resistance of Arrest Statute is 
found constitutional on its face in all of its aspects, 
however, the state court’s instruction to the jury re­
garding the statute was so inadequate that the peti­
tioner was deprived of due process of law guaranteed 
by the Fourteenth Amendment and must be, and here­
by is, discharged from the 90 day jail sentence im­
posed upon him as a result of the jury’s verdict.
Early in the proceedings before me the petitioner 

conceded that his conduct was clearly violative of the 
disorderly conduct statute, should it be constitutional 
on its face, and early in the proceedings I informed the 
parties that, relying on my decision in an earlier case, 
to-wit, United States versus Woodard, affirmed by the 
Seventh Circuit at 376 Fed. 2d 136, I considered the 
statute constitutional.

I found, as in this case, and as in that case, the stat­
ute not to be unduly broad nor far reaching, and not 
to be in violation of the Fourteenth Amendment to the 
Constitution.

In addition, in order to be consistent in his testi­
mony as to the purpose of his conduct, petitioner must 
be held to have conceded that he had no standing to 
contest the constitutionality of that statute since, as 
he testified, he did what he did for the express purpose 
of getting arrested; conducting himself in the manner 
in which he did was part of his planned demonstration.



6 Transcript of Proceedings

I understand it to be a demonstration against the po­
licy of the City of Chicago then maintained in retaining 
one Benjamin J. Willis as superintendent of the schools 
of the City of Chicago.

8 The case narrows itself before me to two simple but 
rather difficult issues; first, the constitutionality of 
the Resistance of Arrest Statute, as amended, and, 
second, the constitutionality of the court’s charge or 
instruction to the jury with regard to the meaning of 
the words of that statute.

Before conducting a hearing in the case I announced 
my decision on the disorderly conduct issue and the 
parties were directed to present evidence and argu­
ment only as to the question of the constitutionality of 
the resistance of arrest statute and on the instruction 
of the trial court to the jury with relation thereto.

What happened and the circumstances under which 
it happened are an important consideration at this 
point. The petitioner, Albert A. Raby, organized a 
protest demonstration against the retention of Super­
intendent Willis. The demonstrators met according to 
plans and marched to City Hall where, while the dem­
onstrators waited outside, Mr. Raby entered the build­
ing for a conference with the Mayor. When he returned 
to his group from the Mayor’s office he spoke to them 
from a elevated position beside the steps of the City 
Hall. He stated that his efforts inside had been un­
satisfactory.

9 He then called upon all who wished to accompany 
him to proceed with the second phase of the protest 
demonstration. This consisted of moving to the corner 
of the streets by the City Hall and out into the inter­
section of Randolph and Clark Streets, where they



Transcript of Proceedings 7

would sit in the streets at their intersections and where 
they would “get themselves arrested.” It was a busy 
part of the day, traffic was heavy, police were available 
and, of course, television cameras and members of 
numerous news media were there.

By their sitting in the center of the intersection, 
traffic was tied up for some distance in all four direc­
tions. The officer in charge of the police on duty there 
announced to the demonstrators that unless they re­
moved themselves from the intersection they would be 
placed under arrest for obstructing traffic and for dis­
orderly conduct. The demonstrators did not move and 
the police had to move in. This was their duty and this 
they did.

As they approached each “ sitter-in” or groups of 
“ sitter-in,” they announced, “You are under arrest. 
Get up and get into the police van.” Some obeyed. 
Others had to be carried to the vans.

Ruby remained on the ground and had to be carried 
10 to the van. He was among the last of the demonstrators 

who had to be so removed. The Illinois Resistance of 
Arrest Statute, Chapter 38, Illinois Revised Statutes, 
Section 31-1, provides as follows:

“ A person who knowingly resists or obstructs 
the performance of one known to the person to be 
a peace officer of any authorized act within his of­
ficial capacity shall be fined not to exceed $500 or 
imprisoned in a penal institution other than the 
penitentiary not to exceed one year, or both.”

Raby remained on the ground and had to be carried. 
In considering the petition for a writ of habeus (sic) 
corpus on the question of resistance of arrest, I not 
only reviewed the full transcript of the trial and the



8 Transcript of Proceedings

decisions of the Illinois courts but, in addition, con­
ducted a full retrial of the entire incident. The same 
witnesses who testified at the initial state trial tes­
tified in the same manner before me.

In addition, I admitted into evidence by description 
an actual demonstration of the carrying of a person 
presumably seated on the ground, the courtroom floor 
as it was here, by four presumed officers, indeed, the 
attorneys in the case, as it was here, in the manner in 

11 which, according to the testimony given by certain of 
the witnesses, Raby was carried by the police, and at 
a distance, according to the testimony of certain of the 
witnesses, the parties had to carry him in order that 
he be taken to the van.

There was testimony, of course, that after being 
carried for a certain distance he announced that he 
would stand up and walk the rest of the way and enter 
the van. I observed to the record, as I now observe, 
that had the person carried not asserted a muscular 
tightening of his arms, toward his body and his fore­
legs toward his thighs, his arms and legs would have 
slipped upward upon being lifted, and the four officers 
would have had to move him holding him by the wrists 
and ankles, his sitting portions dragging or bumping 
along on the ground.

This is a matter of which I take notice and which 
was demonstrated before me. Actually, this is what 
happened to the petitioner here. After he had been 
carried part of the distance from where he sat to where 
he volunteered to walk the rest of the way, his arms 
slipped up and he had to be carried by his wrists, 
causing him to be dragged or bumped along the ground.



Transcript of Proceedings 9

Whether Raby intentionally or by sheer exhaustion 
decreased the effort asserted by him that was in aid

12 of the effort assumed by the arresting officers to cause
his removal, has a substantial bearing on whether he 
intentionally—and the statute requires that it be in­
tentional—resisted arrest, and a further bearing on 
whether he ‘‘merely went limp.”

This matter of “merely going limp” has been given 
as an important factor in determining whether in any 
specific case there was an actual resisting of arrest. 
This language is to be found in the decision of the 
Supreme Court of Illinois in Raby’s appeal, when it 
stated that resistance can be passive as well as active, 
and naming as one of the examples merely going limp.

It also is to be found in the latest decision of this 
court when, in the Landry case, my brother, Judge 
Hubert Will, stated:

“Resistance can be passive as well as active,” 
naming as one of the examples, “merely going 
limp.”

It further is to be found in the closing arguments of 
the attorney in the prosecution of Raby in the original 
case, when he said, and I quote from page 942 of the 
transcript:

“ The second issue, did, on the 28th of June, 1965, 
a Monday night at approximately 5 :00 o’clock, Mr. 
Raby resist arrest through passive resistance. We

13 are not claiming he is violent; it was through pas­
sive resistance, and the court will instruct you 
that resistance does not have to be active and that 
passive resistance by him going limp is every bit 
as much resistance as if he took a shovel and hit 
someone over the head.”



10 Transcript of Proceedings

Of even more severe concern is the instruction of the 
judge to the jury. He stated at page 949-950 of the 
transcript:

“You are instructed that the defendant, Albert 
Eaby, is charged with committing the offense of 
obstructing and resisting a peace officer on June 
28, 1965, at LaSalle and Randolph Streets, in that 
he resisted a police officer in the performance of 
his duty by, when placed under arrest by said of­
ficer, refusing to voluntarily accompany arresting 
officer and had to be physically carried away, in 
violation of Chapter 38, Section 31-1, Illinois Re­
vised Statutes, and against the peace and dignity 
of the people of the State of Illinois, which charge 
said defendant denies.

“ The court instructs the jury as a matter of law 
14 that resisting a peace officer in the performance of 

his duty may be passive as well as active. To in­
terfere and obstruct does not require active resist­
ance and force.”

Respondents urge that this is a well established 
principle of law and cite certain state decisions as well 
as Judge W ill’s decision in the Landry case as exam­
ples. One such case, to-wit, In Re Bacon, cited at 240 
California Appellate, Second Division 34, 49 California 
Reports, 322 at 333, 1966, and I quote:

“ The present case is controlled by the principles 
hereinbefore discussed to the effect that where the 
arrest is lawful, a person arrested may not use 
passive resistance or interpose any obstacles 
which in any manner impede, hinder, interrupt, 
prevent or delay such arrest.

“We hold, therefore, that a person who goes 
limp, and therefore requires the arresting officer



Transcript of Proceedings 11

to drag or bodily lift and carry him in order to 
effect his arrest, causes such delay and obstruction 
to lawful arrest as to constitute the offense of 
resisting an officer, as defined in Section 148.”

That case was followed in another case cited at 53
15 California Reports 198, and still another California 

case, which was cited to me by respondents, at 68 Cali­
fornia Reports 160, and by Judge Will’s decision in the 
Landry case, which is found at 280 Federal Supple­
ment 959.

I find, however, that except for the Landry case, in 
each of the other cases the statute is substantially dif­
ferent. It is well established that except where the 
statutory provision carries sufficient safeguards 
against a denial of due process of law, a peace officer 
performing an arrest accepts his prisoner as he finds 
him.

There are two steps in performing an arrest. The 
first is the speaking of such words or the performing 
of such acts ars brings to the conscience of the person 
arrested the fact that he is being placed under arrest.

The second is the taking of such person into custody. 
Even that step may be performed verbally or by the 
performance of some act.

The two steps in many instances merge into one. 
Under no circumstances, however, is the arrested per­
son obliged under Illinois law to aid the arresting of­
ficer in effecting his own arrest. He need not affirm­
atively perform upon himself the act which is the duty 
of the arresting officer to perform. He is not required, 
even if commanded to do so, to place the handcuffs

16 around his wrists, even if mechanically it were pos­
sible for him to do so, nor need he lock the door to his 
own cell, even if that were also mechanically capable 
of being done.



12 Transcript of Proceedings

The Illinois statute is written differently from the 
statutes of the other states. The Illinois statute is 
written in broad sweeping language and does not, as 
the California statute, for example, follow in the cases 
cited by defendants detailed various types of resist- 
tance or obstruction.

It is, thus, proper to say that the Illinois statute is 
satisfied when the arrestee refrains from intentionally 
acting affirmatively in any manner which would in the 
slightest degree frustrate or prevent the officer from 
carrying out the arrest. If the use of the phrase “ pas­
sive resistance” is to be read as applicable to the Illi­
nois statute, in which statute it does not appear, it 
must be read in such a manner as to require that the 
arrested person intentionally, and after being made 
conscious of the fact that he is being arrested, per­
formed affirmatively some type of passivity which he 
was not performing immediately before the beginning 
of the arresting process.

May I repeat that paragraph. If the use of the 
17 phrase “passive resistance” is to be read as applicable 

to the Illinois statute, in which the words do not ap­
pear, it must be read in such a manner as to require 
that the arrested person intentionally, and after being 
made conscious of the fact that he was being arrested, 
performed affirmatively some type of passivity—or 
“passiveness’—would that be the right word?—some 
type of passiveness which he was not performing im­
mediately before the arrest. I am confident that this 
is the interpretation intended by Judge Will in the 
Landry case when he used as an example “ going limp” 
as against “ remaining limp.”

I find from the transcript of the state trial and from 
the evidence produced before me that from the type of



Transcript of Proceedings 13

instruction given by the trial judge to the jury it would 
now be, as it was then, impossible for a jury to reach 
any type of intelligent evaluation of the defendant’s 
conduct as it was presented in the evidence at trial 
in order that jury come to a conclusion that he, the 
petitioner, violated the Illinois Resistance of Arrest 
Statute.

It was particularly incumbent upon the trial judge 
in light of the closing argument of the prosecutor to 
elaborate in detail what he meant by the phrase “ pas­
sive resistance.” It is axiomatic that a jury must be 

18 informed of the nature of the charge against the de­
fendant and intelligently instructed as to the nature 
of that offense before it can perform its proper func­
tion in the judicial process.

Under the language of the instruction given, the jury 
was obliged to convict the defendant under any set of 
facts that might have been presented. I find, therefore, 
that the instruction to the jury was so inadequate that 
the petitioner was deprived of due process of law 
guaranteed by the Fourteenth Amendment.

I do not find that the use of the phrase “passive 
resistance” may not be included in the instructions of 
the judge to the jury, but the instructions must be 
broad enough that the jury can understand what is 
meant at law by “passive resistance” in order that it 
not include conduct which is not in fact affirmative 
conduct on the part of the arrested person.

This matter being heard by me as a Federal Court 
on a writ of habeus (sic) corpus, and not be (sic) me 
as a reviewing court, it is without my authority to 
remand the case for a new trial. The traditional rem­
edy for a writ when it is allowed and confirmed, as



14 Transcript of Proceedings

herein it is being done, is to direct the respondent to 
release the prisoner from his confinement, or if it is 
a technical confinement, as it is here, the threat of 

19 confinement, on the ground that to retain him so con­
fined would be a violation of the due process clause of 
the Fourteenth Amendment to the Constitution, and 
it is so ordered.

The clerk is directed to enter this order forthwith. 
The execution of the order is stayed for a period of 
two weeks in order to give respondents sufficient time 
to make motions for rehearing or to make such other 
motions or perform such other matters as they may 
choose.

Respectfully submitted,

L eo E . H olt and 
M aria A. E ldest 

30 W. Washington Street 
Chicago, Illinois 60602 
ANdover 3-6054

Attorneys for Petitioner-Appellee



N
o. 

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