Raymond Wayne Hill v. The City of Houston, Texas

764 F.2d 1156, 1985 U.S. App. LEXIS 21790

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 4, 1985
• Docket: 84-2181
• Status: Published

Opinions

ALVIN B. RUBIN, Circuit Judge:

This appeal involves the constitutionality under the First and Fourteenth Amendments to the Constitution of a city ordinance that prohibits an individual from in any manner opposing, molesting, abusing, or interrupting a policeman in the execution of his duty. An individual who has been arrested several times for violating the ordinance, and who has never been found guilty, challenges its constitutionality as violating his right to freedom of speech. We hold that the plaintiff has standing to challenge the constitutionality of the ordinance, and that the section in its present form is facially overbroad and unconstitutional. We therefore reverse the judgment of the district court and remand for a determination of the appropriate relief to be awarded to the plaintiff.

I.

Section 34-ll(a) of the Code of Ordinances of the City of Houston, Texas, provides:

Sec. 34-11. Assaulting or interfering with policemen.

(a) It shall be unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest.

Violation of the Ordinance is a Class C misdemeanor, punishable upon conviction in the Municipal Court of the City of Houston by a fine not to exceed $200.00.

While Houston Police Department officers J.L. Kelley and R.D. Holtsclaw were making a traffic arrest at the intersection of Westheimer and Whitney streets in Houston, they noticed Charles Hill, who is unrelated to the plaintiff, directing traffic and stopping vehicles, including a city bus, in a heavily travelled lane of traffic on Westheimer. Officer Kelley approached Charles Hill and began speaking with him about his behavior. The testimony about what happened next is conflicting. Raymond Hill testified that, after a short conversation between Officer Kelley and Charles Hill, Charles attempted to leave, but Officer Kelley grabbed him by the shoulder and began yelling at him. Raymond Hill further testified that, after Officer Kelley permitted Charles to leave, Kelley chased him, and, upon catching him and being joined by his partner, challenged Charles to fight. The district court, however, disregarded this testimony, and found that “Officer Kelley approached Charles Hill and began speaking with him.” Such a finding is supported by the record and is not clearly erroneous.¹

At this point, Raymond Hill yelled to the policemen, in an admitted attempt to divert their attention from Charles Hill, “Leave him alone. Why don’t you pick on somebody your own size?” or words to that effect. Raymond Hill was standing approximately twenty-five feet from the officers. His statements were unaccompanied by any menacing or threatening gesture, although Officer Kelley characterized the tone of Hill’s speech as “loud” and “boisterous.” There is no evidence to support the district court’s finding that Raymond Hill “shout[ed] abuses” at Officer Kelley.

According to Officer Kelley’s testimony, after Raymond Hill yelled to him, Kelley turned towards Hill and asked, “Are you interrupting me in my official capacity as a Houston police officer?” He testified that Hill, who was standing with a crowd of people behind him, put his hands on his hips and replied, “Yes. Why don’t you pick on somebody my size?” Officer Kelley then arrested Raymond Hill and charged him with violating the ordinance. There is nothing in the record to show that Officer Kelley had warned Hill that, if he was interfering with an officer, he would be arrested. After a trial in municipal court, Hill was found not guilty.

This was not the first time Raymond Hill had been charged with violating the ordinance. In 1975, Hill approached Officers Stoffel and Strodman while they were making a traffic arrest. Hill first wrote down the identification numbers on the officers’ vehicle, and then walked to within arm’s length of one of the officers on the side nearest the officer’s revolver. Officer Stoffel asked Hill to move along. Instead of complying, Hill moved closer to the officers, and was then arrested. He was later tried and found not guilty.

In 1977, Hill was standing near the Asylum Bookstore, an adult arcade in which the police suspected illegal activities were in progress. When Hill observed vice squad cars parked nearby, he entered the bookstore and announced over the public address system that police officers were present and that the patrons should be prepared to produce identification. The patrons fled upon hearing the announcement, and Hill was arrested for interfering with the investigation. The case was subsequently dismissed.

Finally, in October, 1982, eight months after he was arrested for the incident involving Charles Hill, Raymond Hill was arrested for violating the ordinance when he refused to leave the immediate area where two police officers were investigating a car parked with an unknown, unconscious person inside. The charges were later dismissed when the arresting officers failed to appear in Municipal Court.

After hearing testimony from Raymond Hill and Officer Kelley, as well as testimony from other individuals who had been arrested under the ordinance and other Houston police officers who have made arrests under the ordinance, the court entered judgment for the City of Houston. The court first found that Raymond Hill lacked standing to challenge the unconstitutionality of the ordinance. The court went on to hold that, even if Hill did have standing, his claim for relief would still be denied because the ordinance was neither overly broad, void for vagueness, nor applied in an unconstitutional manner as to Hill’s arrest in February, 1982.

II.

We turn first to the issue of standing. Although the district court recognized that the usual rules of standing do not necessarily apply “when First Amendment interests are at stake,” the court found “that the Plaintiff has not succeeded in raising any valid First Amendment claims,” and, on this basis, denied Hill standing to pursue his claim.

Hill’s standing to litigate the constitutionality of the ordinance must not be confused with the apparent merit or lack of merit in his challenge. “Standing” is one element of the “case or controversy” limitation on federal court jurisdiction, and focuses primarily “on the party seeking to get his complaint before a federal court.” ² “The gist of the question of standing” is whether the plaintiff has alleged “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for the illumination of difficult constitutional questions.”³

In other words, standing involves whether this plaintiff is a proper party to request an adjudication of the particular issue. This is a separate inquiry from whether the party should prevail. In fact, it is not proper for the court to consider the likelihood of success on the merits in determining the plaintiffs standing to proceed.⁴

Hill did not raise the constitutionality of the city ordinance as a defense to his prosecution under the law. Instead, he brought a separate action, independent of any pending or threatened prosecution, alleging the unconstitutionality of the ordinance and seeking declaratory and injunctive relief. Specifically, Hill alleges that, irrespective of both his own prior conduct and the possibly constitutional application of the ordinance to him on earlier occasions, the law nevertheless is unconstitutional because “the challenged ordinance on its face substantially abridges First Amendment rights.”

The usual standing rule in this situation is clear: “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.”⁵ When the challenge is based on the First Amendment, however, different considerations apply. As explained by the Supreme Court:

Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, where there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society’s interest in having the statute challenged. “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from protected speech or expression.”⁶

Protection of free speech is so important that courts have allowed plaintiffs in a myriad of suits for declaratory or injunc-tive relief to raise First Amendment challenges to statutes because of their alleged overbreadth or vagueness.⁷

Even with the heightened sensitivity federal courts use in determining a litigant’s standing to challenge a statute on First Amendment grounds, certain threshold requirements must be satisfied before the court may consider such a claim. These requirements are most clearly set forth in City of Los Angeles v. Lyons.⁸ There, Lyons sought damages arising out of injuries he had received from a choke hold administered by the Los Angeles police. Lyons also sought declaratory relief and an injunction against the city prohibiting choke holds in all but those situations when there is the threat of the immediate use of deadly force against the officer.

The Supreme Court found Lyons lacked standing because the one episode “does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.”⁹

The Court specifically pointed out that Lyons’ “lack of standing” to seek equitable relief rested “on the speculative nature of his claims that he will again experience injury as the result of that practice even if continued.” ¹⁰ The Court also relied on its earlier decisions in Golden v. Zwickler11 and Ashcroft v. Mattis,¹² in which it held that standing to challenge a statute was not established merely by the fact that the plaintiff had on a single previous occasion been harmed by the statute’s application, absent a realistic likelihood that the statute would, in the future, be applied to his own detriment.¹³

The record and findings of fact by the district court show that Hill has the requisites to standing defined in Lyons. Hill has been arrested for violating the ordinance four times, once less than six months after he filed this suit. In addition, Hill has repeatedly and steadfastly asserted that he intends to continue to act in a manner that will subject him to further arrests under the ordinance. Hill has shown, therefore, that he faces more than a “subjective apprehension” of repeated injury; ¹⁴ he faces a “credible threat” of future criminal prosecutions under the ordinance that is more than a mere speculative and remote possibility.¹⁵ Hill, therefore, clearly has standing to challenge the constitutionality of the ordinance on First Amendment grounds.

We now consider Hill’s claims that Section 34-11(a) is unconstitutionally vague, overbroad, and w;as applied in an unconstitutional manner to effectuate his arrest in February, 1982. Because we find the ordinance to be unconstitutionally over-broad, we do not reach Hill’s other two arguments.

“An overbroad statute is one that is designed to burden or punish activities which are not constitutionally protected, but [that] includes within its scope activities which are protected by the First Amendment.” ¹⁶ An overbroad statute is invalid on its face, not merely as applied, and cannot be enforced until it is either redrafted or construed more narrowly by a properly authorized court.¹⁷ This, in effect, removes the speech-limiting “sword of Damocles” from over the heads of those who might wish to engage in expression protected by the First Amendment, but who are deterred in their inclination to speak when they learn that what they seek to say is rendered unlawful by the over-broad provisions of the statute.¹⁸

III.

The Supreme Court in Broadrick v. Oklahoma19, warned that the application of the overbreadth doctrine is “strong medicine” and it is to be employed “sparingly and only as a last resort.”²⁰ In order to employ the doctrine to invalidate a statute, therefore, “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” ²¹ This standard applies regardless of whether a law by its terms proscribes conduct or speech: the overbreadth must be substantial before a court may hold the statute to be facially invalid.²²

Despite the stringent requirements that must be satisfied before a statute will be struck down as facially invalid, the over-breadth doctrine remains a viable challenge to laws that impinge on activities protected by the First Amendment, and it has been applied by the Court several times since Broadrick. In Erznoznik v. City of Jacksonville,23 for example, the Supreme Court sustained a challenge to the facial validity of an ordinance prohibiting drive-in movie theaters with screens visible from public streets from showing films containing nudity.²⁴ The Court reiterated Broadrick’s warning that the overbreadth doctrine would be applied with “caution and restraint” to avoid “unnecessary interference with a state regulatory program,”²⁵ and that, for a statute to be deemed facially invalid, its deterrent effect on legitimate expression must be both real and substantial.²⁶

The Court found all of these criteria to be met. It noted that the statute applied to all persons employed by, or connected with, drive-in theatres, and forced theatre owners either to restrict their movie offerings or to provide protective fencing.²⁷ This type of content-based regulation,²⁸ although aimed at protecting “captive audiences” and promoting highway safety, was too imprecisely drawn to pass First Amendment scrutiny. “[A] ‘pure’ movie is apt to be just as distracting to drivers as an ‘impure’ one, and to be just as intrusive upon the privacy of an unwilling but captive audience.”²⁹ Because the ordinance imper-missibly intruded upon an identifiable and substantial class of free speech rights protected by the First Amendment, the Court held the statute to be overbroad and, therefore, invalid.

Similarly, in Village of Schaumburg v. Citizens for a Better Environment,³⁰ the Court found unconstitutional an ordinance prohibiting door-to-door solicitation of contributions by charitable organizations that did not use at least 75 percent of their receipts for “charitable purposes,” such purposes being defined to exclude solicitation expenses, salaries, and other administrative expenses.

The Court held that the ordinance was overbroad. It found that the proffered justifications of protecting the public from fraud and insuring residential privacy were inadequate to sustain the ordinance. Although it did not discount the legitimacy of these governmental interests, the Court determined that they could be “sufficiently served by measures less destructive of First Amendment interests.”³¹

IV.

These cases and others discussing substantial overbreadth under Broadrick’s standards,³² dictate the approach we must take in analyzing the alleged overbreadth of the ordinance. We must first determine not whether Hill’s conduct is protected by the First Amendment but whether the statute might be applied to others not before the court whose activities are constitutionally protected. This, in turn, requires us to consider the potential applications of the law, the adequacy of the City’s justifications for having the ordinance in its present form, and the possibility of serving the City’s interests with a more narrowly drawn law. Following this line of analysis, we hold that Section 34-ll(a) is unconstitutionally overbroad.

The ordinance makes it “unlawful for any person to assault, strike, or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty.” The first clause protects the policeman from being assaulted or struck in the performance of his duty, and clearly applies only to physical conduct. This clause of the ordinance properly “covers a whole range of easily identifiable and constitutionally proscribable ... conduct,”³³ and presents no real and substantial over-breadth problems in its possible applications.

The next clause, however, separated from the first by the conjunction “or,” makes it “unlawful for any person ... in any manner [to] oppose, molest, abuse or interrupt any policeman in the execution of his duty____” (emphasis supplied). This clause permits many impermissible applications of the statute, applications that significantly compromise traditional First Amendment activities.

The conduct literally proscribed by the ordinance includes much that is completely lawful. The dictionary defines “oppose,” for example, to include, “to stand in the way of; hinder or obstruct,” “to have an adverse opinion concerning” or “to offer arguments against.”³⁴ “Molest” is defined as, “to bother, interfere with, or annoy.”³⁵ “Interrupt” is defined to include, “to stop [a person] in the midst of saying or doing something esp. by an interjected remark.”³⁶ Applying these definitions³⁷ to the second clause of the ordinance, it is clear that the statute affects a broad range of protected activities. If a mother pleads with a policeman to “spare my baby” while the policeman arrests her son in front of their home, she has “opposed” the policeman in the execution of his duties. If a tourist sees two policemen on the street questioning a citizen, and stops to ask them directions to a hotel, the tourist has “interrupted” the officers in the execution of their duties. If a person in a crowd at a political function continually begs the policeman to let him past the barricade, that person has “molested” the policeman in the execution of his duties. The district court found that Officer Kelley warned Hill that he might be interfering with a policeman in the execution of police duties, but the ordinance requires no such warning and its language would permit a charge to be lodged without any advance warning against anyone who annoyed, hence “molested,” a policeman.

In short, the second clause of Section 32-11(a) encompasses mere verbal as well as physical conduct. In such a situation, “where the statute unquestionably attaches sanctions to protected conduct, the likelihood that the statute will deter that conduct is ordinarily sufficiently great to justify an overbreadth attack.” ³⁸ The areas of protected conduct encompassed by the ordinance are more than mere “marginal applications in which the statute would infringe on First Amendment values.”³⁹ They comprise a substantial range of protected speech and verbal communications that might be deterred by the present wording of the statute.

The rationale for the ordinance put forward by the City of Houston does not justify its broad sweep. The legitimacy of the City’s interest in “facilitating police duties” is beyond question. This interest in and of itself, however, is not of such overriding importance that it can serve as the basis for an ordinance that permits policemen to arrest people for merely speaking to them, purely verbal conduct that is fully protected by the First Amendment. “Surely one is not to be punished for nonprovocatively voicing his objection to what he obviously [feels is] ... highly questionable [conduct] by a police officer.” ⁴⁰

Whoever forcibly assaults, resists, opposes, impedes, intimidates or interferes with any person designated in section 114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.

The City’s interests can be served adequately by a more narrowly drawn statute tailored more precisely towards the conduct the City wishes to proscribe. For example, federal law prohibits “assaulting, resisting or impeding” certain federal officers.⁴¹ It is similar to the Houston city ordinance, but it qualifies the proscribed conduct with the adverb “forcibly.” The statute thus applies only to persons who use physical force to assault, resist, or oppose a person covered by the section.⁴² Mere verbal resistance is not proscribed by this section.⁴³

While dissenting, our brother Higgin-botham concedes that the ordinance is over-broad, and differs with us only as to the substantiality of its admittedly unconstitutional reach. Like Mercutio’s wound, the constitutional abridgment is not so deep as a well nor so wide as a church door but it is penetrating enough to be fatal.

The ordinance would not be invalid for overbreadth if it were possible to construe it narrowly so as not to impact on protected speech. Federal courts, however, “do not sit as a ‘super’ state legislature, [and] may not impose [their] own narrowing construction onto the ordinace” if the state courts have not already done so.⁴⁴ Here, there is no indication that any state court has placed a limiting construction on the ordinance, and, indeed, the City itself has not suggested one that this court might use had it authority to do so. Instead, the City asserts categorically that the ordinance “does not reach more broadly than is reasonably necessary to protect legitimate governmental interests.” Our brother in dissent concedes that, as thus read, “the ordinance is undeniably over-broad,” ⁴⁵ but argues that we should sua sponte proffer possible constructions that would limit its overbreadth. It is not within our power to construe municipal ordinances that have not been limited by state courts, and it is certainly beyond our province to volunteer interpretations not urged by the City itself.⁴⁶ Overbreadth, therefore, cannot be avoided by a narrowing construction.

For the foregoing reasons, we hold that Section 32-11(a) is unconstitutionally over-broad, and therefore invalid in its entirety. The judgment of the district court is therefore REVERSED, and the case REMANDED for consideration of the appropriate relief to be awarded to the plaintiff.

1 . See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 489 (5th Cir.1985).

2 . Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968).

3 . Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922, 927-28 (5th Cir.1983), aff’d, — U.S.-, 104 S.Ct. 1580, 80 L.Ed.2d 114 (1984).

4 . See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922, 927 (5th Cir.1983), aff'd, — U.S. -, 104 S.Ct. 1580, 80 L.Ed.2d 114 (1984); O'Hair v. White, 675 F.2d 680, 685 (5th Cir.1982) (en banc). See generally 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3531 (1984).

5 . United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). See Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973) and cases cited therein.

6 . Secretary of State of Maryland v. Joseph H. Munson Co., — U.S.-,-, 104 S.Ct. 2839, 2847, 81 L.Ed.2d 786 (1984), quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973) (footnote omitted).

7 . See, e.g., Secretary of State of Maryland v. Joseph H. Munson Co., — U.S.-,-, 104 S.Ct. 2839, 2847-48, 81 L.Ed.2d 786 (1984); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633-35, 100 S.Ct. 826, 834-35, 63 L.Ed.2d 73 (1980); Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2309, 60 L.Ed.2d 895 (1979); Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915-16, 37 L.Ed.2d 830 (1973); Dombrowski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22 (1965); KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922, 927-31 (5th Cir.1983), aff'd, — U.S. -, 104 S.Ct. 1580, 80 L.Ed.2d 114 (1984); Holy Spirit Association for Unification of World Christianity v. Hodge, 582 F.Supp. 592, 596 (N.D. Tex.1984). Cf. United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736, (1983); Erznoznik v. City of Jacksonville, 442 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975).

8 . 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).

9 . Id. at 106, 103 S.Ct. at 1667.

10 . Id. at 109, 103 S.Ct. at 1669.

11 . 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).

12 . 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977).

13 . Lyons, supra, 461 U.S. at 104-106, 103 S.Ct. at 1666-67. Accord Carter v. Orleans Parish Public Schools, 725 F.2d 261, 263 (5th Cir.1984).

14 . Lyons, supra, 461 U.S. at 107 n. 8, 103 S.Ct. at 1668 n. 8.

15 . Kolender v. Lawson, 461 U.S. 352, 355 n. 3, 103 S.Ct. 1855, 1857 n. 3, 75 L.Ed.2d 903 (1983); Wooley v. Maynard, 430 U.S. 705, 712, 97 S.Ct. 1428, 1434, 51 L.Ed.2d 752 (1977).

16 . J. Nowak, R. Rotunda & J. Young, Handbook on Constitutional Law 722 (1978).

17 . G. Gunther, Cases and Materials on Constitutional Law 1186-87 (10th ed. 1980).

18 . See Arnett v. Kennedy, 416 U.S. 134, 231, 94 S.Ct. 1633, 1682, 40 L.Ed.2d 15 (1974) (Marshall, J. dissenting); M. Nimmer, Freedom of Speech § 4.11 [A] (1984).

19 . 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

20 . Id. at 613, 93 S.Ct. at 2916.

21 . Id. at 615, 93 S.Ct. at 2918.

22 . See New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Accord Ferguson v. Estelle, 718 F.2d 730, 732-33 (5th Cir. 1983); Basiardanes v. City of Galveston, 682 F.2d 1203, 1216-17 (5th Cir.1982). See generally M. Nimmer, supra, at § 4.11[B],

23 . 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975).

24 . Id. at 206-07, 95 S.Ct. at 2271.

25 . Id. at 216, 95 S.Ct. at 2276.

26 . Id.

27 . Id. at 217, 95 S.Ct. at 2277.

28 . Id. at 218, 95 S.Ct. at 2277 (Douglas, J., concurring).

²⁹

30 . 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980).

31 . Id. at 637, 100 S.Ct. at 836.

32 . See Secretary of State of Maryland v. Joseph H. Munson Co., — U.S.-, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984); Members of City Council v. Taxpayers for Vincent, — U.S. -, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Cf. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). See generally G. Gunther, Cases and Materials on Constitutional Law 1187 (10th ed. 1980).

33 . Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974), quoting United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 580-81, 93 S.Ct. 2880, 2898, 37 L.Ed.2d 796 (1973).

34 . The Random House College Dictionary 933 (revised ed. 1975).

35 . Id. at 860.

36 . Id. at 698.

37 . See Kramer v. Price, 712 F.2d 174, 179 (5th Cir.1983) (Rubin, J., dissenting).

38 . Members of the City Council v. Taxpayers for Vincent, — U.S. —, — n. 19, 104 S.Ct. 2118, 2126 n. 19, 80 L.Ed.2d 772 (1984), citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 217, 95 S.Ct. 2268, 2276-77, 45 L.Ed.2d 125 (1975).

39 . Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 2563, 41 L.Ed.2d 439 (1974).

40 . Norwell v. City of Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187, 188, 38 L.Ed. 170 (1973).

41 . 18 U.S.C. § 111 provides, in pertinent part, as follows:

42 . See United States v. Mathis, 579 F.2d 415, 418 (7th Cir.1978); United States v. Camp, 541 F.2d 737, 739 (8th Cir.1976) and cases cited therein.

43 . See United States v. Cunningham, 509 F.2d 961, 963 (D.C.Cir.1975); United States v. Glover, 321 F.Supp. 591, 594 (D.Ark.1970).

44 . Beckerman v. City of Tupelo, Mississippi, 664 F.2d 502, 509 (5th Cir.1981), citing Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 216-17, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975). Accord Gormley v. Director, Connecticut State Department of Probation, 632 F.2d 938, 942 n. 5 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S.Ct. 591, 66 L.Ed.2d 485 (1980); Walker v. Dillard, 523 F.2d 3, 6 (4th Cir.), cert. denied, 423 U.S. 906, 96 S.Ct. 208, 46 L.Ed.2d 136 (1975). See generally M. Nimmer, supra at § 4.11[D].

45 . 764 F.2d at 1170 (Higginbotham, J., dissenting).

46 . See Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 n. 15, 95 S.Ct. 2268, 2276 n. 15, 45 L.Ed.2d 125 (1975).