Wright v. Bailey Reply Brief

    IN THE

UNITED STATES COURT OF AFPEALS 

FOR THE FOURTH CIRCUIT 

NO. 74-2105

STEPHEN WISE WRIGHT, et al.,

Pet it ioners-Appe H a n t s ,

v.

GEORGE BAILEY, et al.,

Respcndents-Appellees.

On Appeal From The United States District Court 
For The Western District Of Virginia

REPLY BRIEF

S. W. TUCKER 
Hill, Tucker & Marsh 

214 East Clay Street 
Richmond, Virginia 23219

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New York, New York .10019

Counsel for Petitioners-Appellants



Table of Cases

Page

City of Kenosha v. Bruno, 412 U.S. 109 (1973) ........ 2

Shuttlesworth v. City of Birmingham, 394 U.S.
147 (1969) ...........................................  5

Walker v. City of Birmingham, 388 U.S. 307
(1967) ...............................................  4,5

Wetzel v. Liberty Mutual Insurance Co.,
44 U.S.L.W. 4350 (1976) ..............................  2

Wilwording v. Swenson, 404 U.S. 249 (1971)   4

i



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 
NO. 74-2105

STEVEN WISE WRIGHT, et al.,

Petitioners-Appellants,

v.

GEORGE BAILEY, et al.,

Re spondent s-Appe11ee s.

On Appeal From The United States District Court 
For The Western District Of Virginia

REPLY BRIEF

This brief will respond to some of the contentions made 
by the respondents-appellees in their brief.

1. On page 3, the respondents contend that some of the 

questions propounded by this Court are not properly before 
it and objects to their being raised in this appeal. The 

respondents' contentions should be rejected on two grounds. 

First, it is absolutely clear that an appellate court can and



indeed, must raise and decide questions pertaining to juris­

diction even though those questions have not been raised by the 

parties or dealt with by the lower courts. See, e_.g_., Wetzel 

v. Liberty Mutual Insurance Go.. 44 U.S.L.W. 4350, 4351 (1976); 

City of Kenosha v. Bruno. 412 U.S. 109 (1973). Question No. 1, 

of course, as propounded by this Court, does relate to the juris­

diction of the court under the habeas corpus and other statutes.

Second, Question No. 2, was in fact raised by the petitioners 

in their petitions for writs of habeas corpus. Paragraph VI. D. 

of Steven Wright's petition, and VI. C. of Clarence Wright's 

petition raise essentially the question of the validity of the 

resisting arrest and assault charges in light of the unconstitu­

tional arrest for disorderly conduct (see Appendix pp. 8, 17). 

Thus, they subsume the question specifically asked by the court, 

which does no more than reiterate the basic issue raised in the 

case. Similarly, Question No. 3 arises directly out of the claims 

made by both petitioners; that is, that they may not be convicted 

for resisting arrest if the arrest itself is unconstitutional.

That broad statement necessarily raises any subsidiary issues 

that fairly come within its scope. Habeas corpus proceedings, 

like other proceedings in federal court, simply are not subject 

to the kind of narrow technical pleading rules that respondent 

seeks to impose.

2



2. Similarly, respondents' argument on page 17 that 

the question to the issue posed by Question 2 cannot be raised 

because petitioners have not exhausted their state court 
remedies must be rejected.

First, in the habeas corpus petitions, it was alleged 

that all state remedies had been exhausted and that the specific 

issues raised, including Question No. 2, had been presented to the 

state court. See Appendix, pp. 8-9, 18. These allegations were 

not contravened by the respondents and therefore must be taken 

as true. See Appendix pp. 123-24. Moreover, it is clear that 

the issues were in fact raised in the state courts. Thus, for 

example, in the assignments of error to the Supreme Court of 

Virginia filed on behalf of Steven Wright with regard to the 

resisting arrest charge, the entire basis of those assignments 

of error was that "the pretended arrest for disorderly conduct 

was unlawful." Appendix, pp. 32-34.

In the Supreme Court of Virginia, and indeed in the 

petition for writ of certiorari filed in the Supreme Court 

of the United States, the disorderly conduct statute was 

attacked as unconstitutional and it was urged that that 

unconstitutional arrest invalidated the conviction for resisting 

arrest. In denying the appeal, the Supreme Court of Virginia 

necessarily rejected these federal constitutional claims. There 

is no need therefore for the petitioners to give the state courts 

another chance to decide the same issue as a precondition for

3



obtaining review of federal habeas corpus. See, e.£.,

Wilwording v. Swenson, 404 U.S. 249, 250 (1971).

3. With regard to the jurisdictional questions posed 

by this Court, petitioners have stated their positions in 
their main brief and will not repeat them here. They simply 

wish to reiterate that the Supreme Court has never indicated 

that a state defendant may be totally without any remedy to 

challenge a state court conviction which has imposed upon him 

a fine or a threat of imprisonment. Both petitioners are 

facing jail sentences. They will serve those sentences unless 

they are able to raise in this Court the constitutionality

of the Virginia disorderly conduct statute and the legality 

of Steven Wright's arrest under that statute. If the position 

of respondents is accepted, they will go to jail without any 

recourse from the federal courts despite the obvious substantiality 

of their federal constitutional claim.

4. With regard to the question of whether an 

unconstitutional arrest may be resisted, respondents claim 

on page 21 that a person may not violate a statute "with 

immunity from further criminal action" until the statute has 

been declared unconstitutional. This is exactly the opposite 

of the rule of law often reiterated by the Supreme Court.

The case cited by the respondents, Walker v. City of Birmingham,

388 U.S. 307 (1967), dealt with a court order and whether such 
an order could be violated and a charge of contempt defended

4



on the ground of the Order's unconstitutionality. Two Terms 

later, the court held in Shuttlesworth v. City of Birmingham,

394 U.S. 147 (1969), that the same group of defendants could 

not be prosecuted for the same actions involved in Walker 

in a criminal prosecution for violating the parade ordinance 
because the parade ordinance was unconstitutional. In 

Shuttlesworth, the Supreme Court reaffirmed a long line of 

decisions which consistently held that a defendant could violate 

a statute and raise the defense that the statute was uncon­

stitutional. 394 U.S. at 151, n. 3.

5. On Page 25, respondents assert that the validity 

of an arrest is to be determined according to "state law."

This assertion is simply wrong. Whenever an arrest by a 

state authority is challenged on the ground that it violated 

the federal constitution because, for example, there is no 

valid arrest or search warrant, then of course, the question 

of validity of the arrest under the federal constitution is 

determined by looking to federal law. In other words, a 

state cannot through its own law override federal constitutional 

requirements imposed by the Fourteenth Amendment, for to do 

so would be directly contrary to the supremacy clause of 

Article VI of the Constitution. Thus, the fact that at the 

time of the arrest the statute had not yet been declared 

unconstitutional does not mean that the arrest was a valid one. 
The question was always present and was raised by the petitioners

5



in state court as to whether "the statute . . .  so construed 

as to embrace . . . [the] conduct . . .  of the defendants" 

is "violative of the First and Fourteenth Amendments of 

the Constitution of the United States" (Appendix, p. 61).

In rejecting this argument, the Virginia courts clearly 
rejected the attack on the constitutionality of the disorderly 

conduct statute.

Respectfully submitted,
x ' - '  /  /  i  ,/ - ' ' c
S. W. TUCKER 
Hill, Tucker & Marsh 

214 East Clay Street 
Richmond, Virginia 23219

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New York, New York 10019

Counsel for Petitioners-Appellants

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CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the Reply 

Brief on counsel for Respondents, by depositing same in the 

United States mail, first class, postage prepaid, addressed 
to:

Honorable Gilbert W. Haith 
Assistant Attorney General 
Office of the Attorney General 
900 Fidelity Building 
830 East Main Street 
Richmond, Virginia 23219

Dated: April 19, 1976.

Attorney for Petitioners-Appellants