Shuttlesworth v. Birmingham

In Shuttlesworth v. Birmingham (1965) 382 U.S. 87, the defendant was arrested and charged with violating two Birmingham, Alabama ordinances. One made it unlawful for a person or persons "to stand, loiter or walk upon any street or sidewalk in the city as to obstruct free passage over, on or along said street" and made it also unlawful to stand or loiter after having been requested by any police officer to move on. The other made it unlawful to refuse to comply with any lawful order of a police officer. The Shuttlesworth court upheld the first only on the strength of an Alabama Court of Appeals ruling narrowing its scope to read the section as "'directed at obstructing the free passage over, on or along a street or sidewalk by the manner in which a person accused stands, loiters or walks thereupon. Our decisions make it clear that the mere refusal to move on after a police officer's requesting that a person standing or loitering should do so is not enough to support the offense . . . . There must also be a showing of the accused's blocking free passage . . . .' (382 U.S. at p. 91 15 L.Ed.2d at pp. 179-180.) The Shuttlesworth court did note, however, that "it requires no great feat of imagination to envisage situations in which such an ordinance might be unconstitutionally applied." ( Id. 15 L.Ed.2d at p. 180.) In commenting upon the defects of the section if not construed narrowly, the court made the following interesting comments: "Literally read, therefore, the second part of this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration. It 'does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.' Cox v. Louisiana 379 U.S. 536, 579 (separate opinion of Mr. Justice Black). Instinct with its everpresent potential for arbitrarily suppressing First Amendment liberties, that kind of law bears the hallmark of a police state." (382 U.S. at pp. 90-91 15 L.Ed.2d at p. 179.)