United States v. Ronald Woodard and Ranier Seelig

376 F.2d 136, 1967 U.S. App. LEXIS 6872

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 4, 1967
• Docket: 15567_1
• Status: Published

Opinions

SWYGERT, Circuit Judge.

Ronald Woodard and Ranier Seelig appeal from their convictions of disorderly conduct pursuant to the Assimilative Crimes Act, 18 U.S.C. §§ 7 and 13,¹ and the Illinois disorderly conduct statute, Ill.Rev.Stat. ch. 38, § 26-1 (a) (1). The district court suspended the imposition of fines against both defendants and placed them on probation for a period of nine months. The defendants challenge the sufficiency of the evidence and the constitutionality of the disorderly conduct statute, and allege several trial errors.

The essential facts follow. On May 25, 1965, the House Committee on Un-American Activities (HUAC) held a hearing in the former United States Court of Appeals Building at 1212 Lake Shore Drive, Chicago. A full complement of deputy United States marshals was on hand to maintain order in and around the premises. Sometime around noon, the deputy marshals were in the process of clearing the hearing room for the luncheon recess. The defendant Woodard, who had left shortly before to visit the washroom, attempted to reenter the hearing room. The marshal-in-charge informed Woodard that he could not do so because the building was being cleared for the noon recess. Woodard announced his intention to return in spite of this instruction and stepped around the marshal-in-charge, only to be confronted by two deputy marshals. The deputy marshals repeated the direction of the marshal-in-charge and told Woodard that he would have to leave the building. At this point Woodard declared that if he were going to leave, the marshals would have to carry him, and fell limp on the floor. Disorder and confusion followed among people in the hallway and at a press conference being conducted nearby. Several deputy marshals carried Woodard from the building.

Later the same day, during the Committee’s afternoon session, the defendant Seelig was seated as a spectator in the hearing room. During the course of the testimony of a witness at the hearing, Seelig jumped to his feet and began shouting, “Being an American citizen, I don’t have to sit here and listen to these lies.” A general commotion ensued. The chairman presiding at the hearing called for order by pounding his gavel and a marshal seated in front of Seelig warned him to keep quiet or he would have to leave. When Seelig continued his shouting, he was removed from the building by several deputy marshals.

The first question presented is whether the evidence is sufficient to convict the defendants of violations of that portion of the Illinois disorderly conduct statute under which they were charged, section 26-1 (a) (1) of chapter 38 of the Illinois Revised Statutes. That section provides:

A person commits disorderly conduct when he knowingly * * * does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.

The emphasis of the statute is upon the tendency of the conduct to disturb others and to provoke disruptions of public order and upon the unreasonableness of the activity when viewed in the context of the surrounding circumstances. We have no hesitation in saying that a jury could find the defendants’ conduct violative of the statute.

The defendant Seelig’s action in jumping to his feet and shouting during a congressional hearing was shown to have disrupted the orderly procedure of the testimony before the Committee and to have caused a general commotion among the spectators. The evidence indicates that Seelig’s disorderly behavior continued until he was forcibly removed from the hearing room. The unreasonableness of such conduct under the circumstances of a solemn public gathering, even under the most permissive standards, is apparent, and the jury could so find. Public hearings of every character, executive, legislative, and judicial, are most often “public” as to physical presence, but not as to participation. As such, they must be conducted with decorum. If each spectator were privileged to shout or even speak at will, pandemonium would likely result. When, as here, activity engaged in by a spectator prevents the orderly continuation of the hearing, it falls within the prohibition of the statute. Cf., State v. Smith, 46 N.J. 510, 218 A.2d 147, cert. denied, 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 71 (1966).

As to the defendant Woodard, the evidence shows that he, too, created a disturbance and caused confusion raising a threat to the public peace and tranquility in the building where the congressional hearing was being held. Woodard’s action in falling limp on the floor was an intentional resistance to the authority of those designated to maintain order on the premises. The jury could find that such disruptive behavior was so unreasonable, given the attending circumstances, as to constitute disorderly conduct within the meaning of the statute. Cf., United States v. Jones, 365 F.2d 675 (2d Cir. 1966); State v. Smith, supra.

The defendants contend that any violation of the statute which may have occurred resulted solely from the “uncalled for” intervention of the deputy marshals, for which the defendants should not be held accountable. We think the evidence already recited refutes this argument. The conduct of the defendants, not that of the law enforcement agents, occasioned the public disturbances which prompted the prosecution of this case.²

The defendants next raise constitutional challenges to the Illinois disorderly conduct statute. First, they maintain that the statute is unconstitutionally vague. They focus their argument upon the language of the statute prohibiting any act done in “such unreasonable manner as to alarm or disturb another.” They complain that the term “unreasonable” is undefined and that the statute fails to delineate the extent of the alarm or the gravity of the disturbance required. The defendants’ argument thus reduces itself to the assertion that the statute is so vague as to deny them due process by failing to give them fair notice that their conduct was prohibited.³

The Constitution does not require impossible standards of specificity in penal statutes. It requires only that the statute convey “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947). When measured by this criterion, section 26-1 (a) (1) of the Illinois disorderly conduct statute does not offend due process.⁴

The statute proscribes conduct that is so unreasonable as to “alarm or disturb” another and provoke a “breach of the peace.” The term “breach of the peace” has never had a precise meaning in relation to specific conduct. Yet from its early common law origin to the present it has received a fairly well defined gloss. “The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others.” Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). The term connotes conduct that creates consternation and alarm. It is an indecorum that incites public turbulence ; yet violent conduct is not a necessary element. The proscribed conduct must be voluntary, unnecessary, and contrary to ordinary human conduct. On the other hand, the commonly held understanding of a breach of the peace has always exempted eccentric or unconventional conduct, no matter how irritable to others. It seems unnecessary to add that whether a given act provokes a breach of the peace depends upon the accompanying circumstances, that is,' it is essential that the setting be considered in deciding whether the act offends the mores of the community.

The words “alarm or disturb” are perhaps superfluous because they are conjugate with the term “breach of the peace,” which may encompass the reaction of disturbance and alarm on the part of others. If anything, the words qualify the broader meaning of “breach of the peace.” The term “unreasonable manner” must be read contextually; it merely articulates the standard of judgment which would be applicable even in its absence. “Common sense * * * dictate[s] that * * * conduct is to be adjudged to be disorderly, not merely because it offends some supersensitive or hypercritical individual, but because it is, by its nature, of a sort that is a substantial interference with (our old friend) the reasonable man.” People v. Harvey, 307 N.Y. 588, 123 N.E.2d 81, 83 (1954). In short, we think the Illinois statute, “when measured by common understanding and practices,” United States v. Petrillo, supra, provided the defendants with adequate warning that their conduct was prohibited.

The Supreme Court of New Jersey was recently faced with a void-for-vagueness attack on the state’s Disorderly Persons Act in State v. Smith, 46 N.J. 510, 218 A.2d 147, cert. denied, 385 U.S. 838, 87 S.Ct. 85 (1966), a case involving a disturbance by a spectator at a public meeting in the council chambers of the governing body of the city of Trenton. The New Jersey statute⁵ defined a “disorderly person” as “any person who by noisy or disorderly conduct disturbs or interferes with the quiet or good order of any place of assembly, public or private, including schools, churches, libraries and reading rooms”. The court there made the following pertinent observation:

[The] defendant says the statute is void for vagueness because it does not spell out the degree of noise or the details of a disorder which will offend. Of course, the statute does not do so in specific terms, and it may be doubted that the ingenuity of man could meet that demand if the Constitution made it. But the Constitution does not insist upon the impossible. It asks only what the subject will reasonably permit, and hence if there is a public interest in need of protection, due process does not stand in the way merely because the subject defies minute prescription. 218 A.2d at 151.⁶

Turning to the defendants’ remaining constitutional attack, the defendants contend that the Illinois statute is unconstitutionally broad as applied to their conduct because they were engaged in activities protected by the first amendment. We do not think that the conduct of either defendant was constitutionally protected. First amendment rights are “not absolute at all times and under all circumstances.” Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571, 62 5. Ct. 766, 769, 86 L.Ed. 1031 (1942). Conceding that the defendant Seelig was attempting to voice a protest against the HUAC proceedings, Seelig had no constitutional right to voice his protest in the manner he adopted. The first amendment does not guarantee the right of a spectator to shout during a legislative hearing so as to disrupt the orderly processes of the proceeding. Also conceding that the defendant Woodard may have considered himself justified in attempting to regain admittance to the hearing room, it cannot be said that Woodard’s action in resisting the lawful orders of the deputy marshals by falling on the floor so as to cause a disturbance is entitled to the protection of the first amendment.

The Supreme Court made it clear in two recent cases that those wishing to protest against governmental action or propagandize their views do not have a constitutional right to do so whenever and wherever they please. Adderley v. State of Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (U.S. Nov. 14, 1966); Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). In Cox, Mr. Justice Goldberg wrote:

The rights of free speech and assembly,. while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is ahelear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not 'susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations. Id. at 554-555, 85 S.Ct. at 464.

The defendants, citing decisions such as Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed. 2d 637 (1966); Cox v. State of Louisiana, supra; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); and Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), point to the threat to first amendment freedoms occasioned by the discriminatory application of broadly worded statutes designed to maintain public order. In the cases cited, statutes and ordinances were struck down insofar as the facts disclosed that the laws had been applied or construed to allow conviction for the exercise of first amendment rights. The situation here is entirely different. The defendants’ conduct was not constitutionally protected and the statute was properly and narrowly apCplied. It cannot be contended that the Illinois statute is constitutionally infirm for the reason that it may possibly be misapplied to include protected activity. We have no warrant to assume that the V Illinois courts will construe the statute improperly or that they will not interpret the statute as we have done. The state courts are as firmly bound by the Constitution as the federal courts.

Only a few of the trial errors alleged by the defendants need be mentioned. The remaining allegations of error have been considered; they are rejected without discussion.

Prior to the trial, the defendants presented a motion under Rule 17 (b) of the Federal Rules of Criminal Procedure requesting the court to subpoena the members of the Committee who were present at the hearing.⁷ They contended that the Committee members would give testimony showing that the defendants’ conduct at the hearing was provoked. The motion was denied. The defendants argue that the denial of the motion deprived them of due process. The contention must be rejected. The issuance of subpoenas under Rule 17(b) is a matter within the trial court’s discretion. United States v. Zuideveld, 316 F.2d 873, 881 (7th Cir. 1963), cert. denied, 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612 (1964). No abuse of that discretion has been demonstrated.

During the defendant Seelig’s testimony, Seelig stated that after he was removed from the hearing room he was choked and beaten unconscious by several law enforcement agents. The Government prosecutor expressed surprise at this testimony and requested a continuance. The jury was excused. The court asked the prosecutor whether he was considering “other prosecutive action with relation to the witness” and whether he wished the witness to be reminded of the consequences of perjury. The prosecutor replied that he merely wanted additional time to investigate the matter and that he did not think it was necessary to remind Seelig of his oath as a witness. After further discussion, a continuance was granted, following which the Government introduced rebuttal testimony.⁸ The defendants both claim that they were denied due process because the preceding comments by the trial judge “intimidated” them. They also allege that they were prejudiced by the granting of a continuance. These claims are without merit. It is not clear how the comments, made in the absence of the jury, could have denied the defendants due process; the record contains no indication that either defendant was affected by them in any manner whatsoever. The granting of a continuance was both within the court’s discretion and proper under the circumstances.

The judgments are affirmed.

1 . 18 U.S.C. § 7 provides in part that the territorial jurisdiction of the United States includes lands “acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof.” 18 U.S.C. § 13 provides in part: “Whoever within or upon any of the places * * * reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed * * * within the jurisdiction of the State * * in which such place is situated, by the laws thereof in force at the time of such act * * * shall be guilty of a like offense and subject to a like punishment.” Tiie defendants contend that the information under which they were charged is defective because it does not allege that their conduct was “not made punishable by any enactment of Congress.” Such an allegation is unnecessary. United States v. Wright, 28 Fed.Cas. p. 791, No. 16,774 (D.Mass.1871).

2 . It should be noted that the jury was instructed that in order to find the defendants guilty, the disturbances, if any, resulting from their conduct must have affected persons other than “those persons present to prevent such conduct.”

3 . “[Olriminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law.” Jordan v. De George, 341 U.S. 223, 230, 71 S.Ct. 703, 707, 95 L.Ed. 886 (1951).

4 . No authoritative interpretation of section 26-1 (a) (1) by the Illinois courts has been cited to us by the parties, nor has our research disclosed any. The legislative “Committee Comments,” however, afford some assistance in construction. In part, they read:

Section 26 — 1(a) is a general provision intended to encompass all of the usual types of “disorderly conduct” and “disturbing the peace”. Activity of this sort is so varied and contingent upon surrounding circumstances as to almost defy definition. Some of the general classes of conduct which have traditionally been regarded as disorderly are here listed as examples: the creation or maintenance of loud and raucous noises of all sorts; unseemly, boisterous, or foolish behavior induced by drunkenness ; threatening damage to property or indirectly threatening bodily harm (which may not amount to assault); carelessly or recklessly displaying firearms or other dangerous instruments; preparation for engaging in violence or fighting; and fighting of all sorts. In addition, the task of defining disorderly conduct is further complicated by the fact that the type of conduct alone is not determinative, but rather culpability is equally dependent upon the surrounding circumstances. Thus, the discharge of a pistol on the desert by a lone marksman is harmless, whereas the discharge of the same pistol in a library or church is blameworthy. Similarly, shouting, waiving and drinking beer may be permissible at the ball park, but not at a funeral.

These considerations have led the Committee to abandon any attempt to enumerate “types” of disorderly conduct. Instead, another approach has been taken. As defined by the Code, the gist of the offense is not so mucli that certain overt type of behavior was accomplished, as it is that the offender knowingly engaged in some activity in an unreasonable manner which he knew or should have known would tend to disturb, alarm or provoke others. The emphasis is on the unreasonableness of his conduct and its tendency to disturb. The Committee felt that this definition places the offense on its proper foundation, namely, an invasion of the right of others not to be molested or harassed, either mentally or physically, without justification.

The question of justification poses another problem which is met in the article by the use of the phrase “in an unreasonable manner”. This is simply a recognition that culpability depends in part on the surrounding circumstances. Thus, running through a hallway shouting “fire!” may amount to conduct which ■ tends to alarm others, but if a fire in fact exists, such conduct may be justified, i. e. it may not be unreasonable. What is reasonable must always depend upon tiie particular case and therefore must be left to determination on the facts and circumstances of each situation as it arises.

5 . N.J.Stat.Ann. § 2A:170-28.

6 . The court later added: “Surely, a man of ordinary intelligence knows the council chamber at the time of a public hearing is a public ‘place of assembly.’ So, too, such a man knows the ‘quiet or good order’ of a place depends upon the nature and the purpose and the needs of the meeting. He also knows a legislative chamber from a barroom or a ball park and knows what kind of behavior comports with each.” State v. Smith, 46 N.J. 510, 218 A.2d 147, 152, cert. denied, 385 U.S. 838, 87 S.Ct. 85 (1966).

7 . The motion was presented in the defendant Woodard’s name only, although its contents and the arguments made to support it would presumably bear greater relevance to the defense attempted to be established at the trial by the defendant Seelig. The briefs filed by the defendants and the Government on appeal proceed on the basis that the motion was presented in behalf of both defendants, and we have considered the arguments on that basis.

8 . Seelig’s testimony was given on a Friday afternoon. The trial was continued until the following Monday morning.