Rhodes v City of Little Rock Arkansas Reply Brief Appellants

    Supreme Court ̂ A rkansas

John Rhodes and
Patricia Dr e n n a n ........................... Appellants

v. No.................
City of Little Rock,

A r k a n s a s ...............................................Appellee

APPEAL FROM
PULASKI COUNTY CIRCUIT COURT 

Hon. W illiam J. K irby, Judge

REPLY BRIEF FOR APPELLANTS

John W. W alker 
1304-B Wright Avenue 
Little Rock, Arkansas 72206

Jack Greenberg 
James M. Nabrit, III 
Michael Meltsner 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

PARAGON PRINTING CO., LITTLE ROCK



Supreme Court ̂ A rkansas

John Rhodes and
Patricia Dr e n n a n ........................... Appellants

v. No,

City of Little Rock,
A r k a n s a s ..................................................Appellee

APPEAL FROM
PULASKI COUNTY CIRCUIT COURT 

Hon. W illiam J. K irby, Judge

REPLY BRIEF FOR APPELLANTS

The Appellee’s Brief fails to respond directly 
to the serious issues in this case or to Appellants’ 
arguments as set forth in their brief.

The defendants below were tried for an 
alleged violation of Section 25-121 of the Little 
Rock Code of Ordinances, and the trial judge read 
the entire Ordinance to the jury as part of his 
charge (R>75-76)’. The City of Little Rock 
may not confine constitutional scrutiny of this



2

Ordinance by now stating the theory of the prose­
cution to have been that Appellants were guilty 
of violating only a particular part of the Ordi­
nance (Brief for Appellee, p. 5). Stromberg 
V. California, 283 U. S. 359 (1931); Cole V. Ar­
kansas, 333 U.S. 196 (1948).

Appellee’s construction of the Ordinance is 
self-contradictory, It first seeks to read the law 
“ in its entirety” to discover a common denomi­
nator of “unacceptable sexual behavior” and then 
emphasizes the “particular part of the Ordinance 
violated” to rebut Appellants’ claim that the 
Ordinance proscribes only public conduct. Ap­
pellants submit that this is not “ rational inter­
pretation.” 1

The unconstitutionality of a law purporting 
to punish “ immorality” is clear, and while Ap­
pellee has drawn this Court’s attention to cases 
from other jurisdictions which have found suf­
ficiently definite penal laws employing other 
terms, Appellee has made no attempt to distin­

i Appellee relies upon Beasley v. Parnell, 177 Ark. 912, 9 
SW  2d 11 (1928). However, the statute in that case contained 
no separate indication of legislative intent, while such intent is 
made clear in this Ordinance by the inclusion of a paragraph 
defining “public place” immediately following the paragraph­
ing setting out the criminal acts. The very title of the Ordi­
nance is revealing: Public places; immoral conduct within;
penalty (R.43). Appellants do not contend, as Appellee ap­
parently believes, that this Court should read the word or as 
the word “and.” Rather, the legislative intent to interdict only 
public conduct is otherwise clear from the language of the 
Ordinance, and proof of public misbehavior is an integral part 
of any prosecution under this Ordinance.



guish this Court’s condemnation of such a 
statute:

3

The standard of crime would be ever 
varying, and the courts would constantly 
be appealed to as the instruments of moral 
reform, changing with all the fluctations 
of moral sentiment. The law is simply 
null. The constitution, which forbids ex 
post facto laws, could not tolerate a law 
which would make an act a crime, or not, 
according to the moral sentiment which 
might happen to prevail with the judge 
and jury after the act had been committed. 
(Ex parte Jackson, 45 Ark. 158, 164 
(1885)).

Nor has Appellee sufficiently answered the 
claim that the Ordinance is unconstitutionally 
vague, for as pointed out in Appellants’ Brief and 
as emphasized by this Court in Ex parte Jackson, 
supra, the overbreadth of the Ordinance not only 
causes problems of adequate notice but also leads 
to unpredictable and capricious judicial applica­
tion.

Finally, Appellee also mistakes the nature of 
Appellants’ Fourth Amendment claims. Appel­
lee as much as admits the illegality of the arrest 
but argues that such an illegal arrest does not re­
quire suppression of evidence previously ob­
tained.2 The evidence here is in consequence

2 Appellee cites Perkins v. City of Little Rock to support 
this proposition. There, however, the evidence consisted of 
voluntary statements made after arrest, not before it.



4

of the nighttime peeping of the officers through 
the window of the apartment. Appellants con­
cede the right of an officer, under Arkansas law, 
to arrest when a misdemeanor is committed in 
his presence. What Appellants cannot agree is 
that the term “presence” includes the totally war­
rantless, unauthorized peering into the window 
of a private apartment at 2:30 A.M. by officers 
standing within the curtilage of the property. 
Such police action constitutes a violation of the 
constitutional rights to privacy which cannot 
justify any prosecution based on what was ob­
served. However great the harm of “ immoral” 
conduct, to sanction such peeping-tom police 
tactics would inflict a far greater injury upon 
society and upon individual rights and the 
sanctity of the home.



D

CONCLUSION

Wherefore, for all the foregoing reasons, ap­
pellants respectfully submit that the judgments 
of the trial court should be reversed and dis­
missed.

Respectfully submitted,

John W. W alker 
1304-B Wright Avenue 
Little Rock, Arkansas 72206

Jack Greenberg 
James M. Nabrit, III 
Michael Meltsner 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



^ 
» 

»»■ 
—-

 •*
 - 

- 
■*' ‘

 
*

«-
 

S
'-
 •

»- 
-■