SHUTTLESWORTH v. BIRMINGHAM

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Argument of Jack Greenberg

Chief Justice Earl Warren: Number 168, Fred L. Shuttlesworth, Petitioner, versus City of Birmingham.

Mr. Greenberg.

Mr. Jack Greenberg: Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to the Alabama Court of Appeals which is the intermediate appellate court in Alabama.

Petitioner asserts denial of rights secured by the Fourteenth Amendment to the Constitution of the United States.

The Alabama Court of Appeals ruled against him and the Alabama Supreme Court refused to review the case on the ground that petitioner's petition was filed on the wrong-sized paper.

That is an ordinary legal cap paper instead of the folio paper which is in this record here.

Petitioner was convicted in the Circuit Court of the Tenth Judicial Circuit for violating Section 856 of the Birmingham City Code which is set forth on page 2 of our brief.

And this provision briefly provides that any person who knowingly opposes or resists any officer in executing or attempting to make any lawful arrest or in the discharge of any legal duty, and so forth, shall, on conviction, be punished as -- for a misdemeanor.

The charge brought against petitioner was essentially in the language of the ordinance and the charge appears on page 4 of our brief and it charge that petitioner did knowingly and willfully interfere with and hinder the Chief of Police in the discharge of his legal duty.

The Alabama Court of Appeals, however, affirmed on the ground, as petitioner reads it, that it did not have to reach the question of whether petitioner violated Section 856 because, as appears on page 60 of the record, it held, he had violated another section, Section 825, which we -- with which he had never been charged and that is the Section making an assault of crime.

And it said that in as much as Shuttlesworth blocked the Chief's path using words from which the intent to do so in rudeness or anger could probably and rationally be inferred, there was no error in his conviction since he could have been clearly convicted of a simple assault.

The petitioner's first conviction here is that there is no evidence to sustain the conviction below and that is no evidence either under Section 856 because petitioner, first of all, we submit, did not interfere with anyone and secondly, we submit, the police were not in the exercise of any lawful duty.

And third, if the question of the crime of assault is in the case, as it was raised for the first time in the Alabama Court of Appeals.

There was no assault under Alabama law as it has been stated heretofore because, as we read the Alabama cases, there is either a requirement of violence or an -- an attempt to commit violence of some sort.

Or under the Alabama law of assault, as it has been defined for the first time in this case as involving some ingredient of rudeness and anger because on this record, in the words of the State's own witnesses, there was neither rudeness nor anger.

Justice John M. Harlan: (Inaudible) actual conduct out of which this (Voice Overlap) --

Mr. Jack Greenberg: Well, I was just about to come to that, Mr. Justice Harlan.

The facts are not seriously disputed.

There is some slight dispute between the parties but, for purposes of this argument, we will accept the statement of the facts as given by the police and most favorable to the State.

May 17th, 1961, the Freedom Riders, which I believe need not be further described as the well-recognized acts that occurred around that time, the Freedom Riders were in the Birmingham bus terminal.

Some of them had come from Nashville to Birmingham and were on route to Montgomery, Alabama.

Some of the Freedom Riders were Birmingham residents and they were joining the national group and they were going to Montgomery, Alabama.

All of the group had tickets, including the petitioner.

He had a ticket and he had a suitcase.

The Chief of Police came up to the group, and on page 15 and 16 of the record, what he said appears.

I'll rapidly go through his testimony, he said, "When I got over to the bus station, I went through the bus station with some other officers and some superior officers, I believe Captain Wall and so forth.

And I went out and told that group, that is the Freedom Riders, that group of people in a voice loud enough to be heard who I was.

I identified myself and told them that due to circumstances that day that I, as Chief of Police, was arresting them and taking them into protective custody of the City of Birmingham.

Then, he said Shuttlesworth came over.

Now, this is the only dispute in the record.

It's not terribly material.

He said Shuttlesworth came over from a distance away and interjected himself.

There, Shuttlesworth maintains he was there all the time and indeed, a captain of the police and a police officer also testified that Shuttlesworth was with the group all the time.

But the dispute is whether Shuttlesworth interjected himself or had been there.

Anyway, he said, "Shuttlesworth came over and I called him Fred, that -- called him by his name.

I called him Fred.

I said he was not concerned with what ws happening there and he walked around and got between me and some of those people.

And I asked him again to go and he said if those people have to be arrested, why, he wanted to be arrested also."

Now, the Chief said this on page 25 of the record.

This took a very few minutes.

There is a police officer who testified and took about a few seconds.

That was the entire transaction.

That was what supposed to have consisted of interfering with the police officer in the exercise of his lawful duty and then, later, this is supposed to have been an assault.

Chief testified Shuttlesworth was not loud, he was not profane, he was not violent, and I think one thing that is absolutely clear about this case is that there was no violence, no threat of violence, no aggressive conduct on the part of this petitioner with the group with which he was at all.

They submitted immediately to arrest.

They were arrested and they were taken away.

Justice John M. Harlan: May I ask you -- can I ask you briefly (Inaudible) conviction on a charge which was never made against this man.

Mr. Jack Greenberg: Well, the Alabama Court of -- the Alabama Supreme Court wouldn't consider the charge because they said it was in the -- the petition said it was on the wrong-sized paper and that's something I hope to discuss in a few moments.

The Alabama Court of Appeals, the lang -- I think the language would have to be read because, to me, Mr. Justice Harlan, it's not entirely clear.

In part, it seems to indicate that since the penalty for assault and for interfering with the police officer in the exercise of a lawful duty are the same, it really didn't matter if he was guilty of it.

In part, there seems to be intimation that this is an included offense in the doctrine of interfering with a police officer.

And this -- the opinion of the Court of Appeals is very brief.

I could --

Justice John M. Harlan: What page?

Mr. Jack Greenberg: 59 and 60 of the record.

Now, it's our -- our first argument that, heretofore, we have been unable to find in Alabama law any such doctrine as protective custody, that the police were not in the exercise of any lawful duty when they were taking someone into protective custody.

The Alabama Court of Appeals defines protective custody, and this is for the first time, as taking someone into custody when he voluntarily submits to it.

But if anything is clear, these Freedom Riders had not voluntarily submitted to be taken into protective custody.

They were arrested and so there was no voluntary taking into custody.

And secondly, I think it's clear that Shuttlesworth did not interfere.

He was speaking to the police officer, in the testimony of different witnesses, from a few seconds to a few minutes and he was merely very politely inquiring as to what was going on.

He was with the group and he wanted --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Well, he said, "I was with them, if you're going to arrest them, you have to arrest me, too."

I -- that, of course, was --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Well, Your Honor, that curiously was exactly the same thing that was the fact in Taylor against Louisiana which this Court reversed.

The Freedom Riders were there and they said that, well, they had to be arrested.

They were willing to agree to be arrested when confronted with the fact that, apparently, there was no alternative to it.

And Shuttlesworth's position, I'd just like to briefly read from the Taylor case, the spokesman said, "We have no choice.

Go ahead and arrest us."

Now, it's essentially what happened.

The language differs only very slightly.

That bit of rhetoric under those circumstances doesn't constitute a crime.

And I don't think that he could've been charged and convicted of a crime for having said in that situation, "I'm with them.

Treat me the same way you treat them", but there was no reason to treat anyone in this way.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Yes, and they say that -- that constituted an interference.

It's a -- an -- but it had to be an interference in the exercise of a lawful duty.

I think it's obvious, there was no lawful duty being carried out here and -- and we would submit that this doesn't constitute an interference.

It was a, "Just a moment.

What's happening there?"

And to merely ask a question of a police officer.

The people -- as a matter of fact, the Freedom Riders had already been arrested at this point.

The -- the duty, the lawful du -- the duty of the police or whatever they were doing had already been consummated.

They were under arrest, at this point, when Shuttlesworth said, "What is happening here?"

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: What --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: I will say, Mr. Justice Goldberg, that the opinion is not clear to me.

That, on the one hand, it appears to be that he was not harmed in any way because he also committed an assault and the penalty is the same.

On page 60, they use assault as an offense included in 856, and that's at the second end of the second full paragraph, and so they say both.

But that's the argument in Cole against Arkansas that we made.

I think this case is clearly under Cole, but we would submit to this Court that this Court doesn't really even have to reach the Cole question because in Cole against Arkansas, this Court remanded it to the State Supreme Court for reconsideration as to what section the man was convicted under.

The Arkansas Supreme Court reconsidered it and reaffirmed and then this Court affirmed, but that's not the situation here because there's no evidence to convict under interfering in the exercise of a lawful duty.

There was no lawful duty and we submit there was no interference.

And there was no assault either in the old sense, as we read the Alabama cases, or in the new sense of rudeness and anger because the testimony of the State's own witnesses says that there was neither rudeness nor anger here.

He was -- he was quite polite.

In any event, the Alabama Supreme Court would not consider this because they said it was filed on the wrong-sized paper.

Now, Alabama uses folio paper for records and it has a rule which requires that petition for writ of certiorari be filed on folio paper.

And this is a folio paper here and this paper is eight and a half by fourteen and -- I'm sorry, this paper is ten and a half by sixteen and a half and the ordinary legal cap that's used in most other courts and is also used for other purposes in Alabama is eight and a half by fourteen and a half.

This paper is two inches larger in each dimension.

I may say that petitions for rehearing under Alabama law, there's a case, Redwine versus State, in our brief, are filed in ordinary legal cap paper.

Petitions for rehearing are jurisdictional prerequisite to filing petitions for writ of certiorari in the Alabama Supreme Court.

Petitions for rehearing are filed on legal -- legal cap and then that is stapled to this paper, as here in this record.

The opinions of the Supreme Court of Alabama also are customarily written on legal cap and stapled to the record, but we don't deny that there is a requirement that petitions for writ of certiorari be placed on transcript paper.

Our position concerning this rule is, however, that the rule itself, while it is a rule tended to be obeyed, it has been adopted because there are racks of a certain size in the office of the clerk and the Alabama Court of Appeals said in the case, Ex Parte Nation, that we have cited in our brief that this sized paper fits those sized racks and also this sized paper is less prone to rot.

Despite the fact that nevertheless the smaller sized paper is stapled into this sized paper for several purposes.

Our position is that the rule though --

Justice John M. Harlan: (Inaudible) sized paper?

Mr. Jack Greenberg: Pardon me?

Justice John M. Harlan: They print the same size?

Mr. Jack Greenberg: Oh, yes, there's the type -- it's typing -- typewriting, it's the same size.

We submit that this -- that while this is a rule and it's a rule that's meant to be obeyed, if the rule itself is -- the requirement that it be obeyed is so arbitrary in what -- as to the federal claim that is presented that when petitioner fails to abide by this rule, his federal claim ought not to be stricken.

This case is like other cases this Court has decided.

Rogers against Alabama was a case in which Alabama refused to consider a federal claim because the pleading was prolix.

That's a state rule that ought to be obeyed.

The question was, should failure to obey the state rule -- can -- can failure to obey the state rule preclude this Court from considering the federal question.

This Court said, no, it could not consider the federal question.

Another case is Staub against Baxley, a much more recent case which the Supreme Court of Georgia said that when you attack an ordinance, you must point out the particular sections of the ordinance you are attacking.

You can't attack the constitutionality of the ordinances as a whole.

While that may be a perfectly valid rule, for purposes of state law, this Court said that the rule under the circumstances was an arid and formalistic ritual and failure to obey it could not preclude this Court from considering the federal question.

Another case, a very early case, Carter against Texas, is a case in which the petitioner had not submitted a witness list setting forth the names of the witnesses he would have called to support his constitutional claim of jury discrimination.

This Court said that, again, perfectly valid state rule but that does not preclude this Court.

It is -- this Court decides what is the proper way to raise federal questions for this Court.

Moreover, this is a rule of the Alabama courts themselves, it was not imposed by legislation.

And the Alabama courts have waived rules like this and even this rule and comparable rules under various -- in various situations.

In Ex Parte Wood, a case cited on page 27 of our brief, that was a mandamus case, mandamus also must be filed in this large-sized paper.

And the Court went into a very extensive consideration of the merits and then it said, "another reason is that we -- we reject the claim because it's on the wrong-sized paper".

Two cases cited in our brief, Houston against State and Ex Parte Nations are cases in which this Court did consider the claims before it on the wrong-sized paper.

The Nations case, a very recent decision of the Alabama Court of Appeals, has an intimation that it's based in forma pauperis type considerations that there was a prisoner who -- where there was no indication that he could have obtained the larger paper, but the fact that the Court adopted this exception shows that it is a rule which under circumstances which the Court considers proper, may dispense with.

Their requirements under Alabama law that a litigant must bind his exceptions into the -- his assignments of error into the transcript at the time of submission.

And there's a case, Mitchell v. Helms, that we cite in which they permitted him to write his exceptions on the transcript afterwards.

Many, many cases have made -- have excused failure to follow the rules recording -- requiring the writing of briefs.

There are certain rules of how briefs should be written and the Alabama courts have frequently excused violations of that rule.

So the Alabama court has excused violations of rules like this and has considered the merits in cases in which the plea has been submitted on the wrong-sized paper.

And we submit in this Court in Williams against Georgia held that where a court has discretion, as here, the fact that it did not exercise its discretion in favor of a petitioner does not preclude this Court from considering a valid constitutional claim.

Moreover, we cite at the conclusion of our brief a recent decision of this Court, Hammerstein against Superior Court, in which this Court was faced with a -- an issue arising from the denial of a writ of prohibition in the District Court of Appeals in California.

The State Supreme Court had refused to hear the case on adequate state ground and this Court held that it -- since it -- what it had before was the judgment of the intermediate appellate court it had jurisdiction.

It declined to exercise that jurisdiction on other grounds, but it held that it had jurisdiction.

So we submit that there is no evidence upon which any of these charges rest, either the charges which he originally was tried or those which were raised for the first time in the State Supreme Court.

Then, under the Doctrine of Cole against Arkansas, it was denial of due process to affirm on a ground which there was no notice in the court below and that the issues are properly before this Court.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Well, I think it requires an appraisal of -- of the facts of just what happened here.

On page 40 of the record, one of the police officers who testified for the States said this entire transaction took a couple of seconds.

That's at the bottom of page 40.

And on page 25, the Chief himself said it was a very few minutes.

Everybody agrees it was just a moment.

Now, I don't think it's an interference with the police for someone who is a member of a group to come over and in the -- a matter of seconds really or moment or two at the most, to make an inquiry as to what is occurring, especially one that is apparent, as it was here, that the police were acting entirely in an unlawful manner, certainly without lawful authority.

I -- I think that if something like this had gone on and it developed into a harangue or a wrangle, you would reach a point in which it would reach the -- perhaps the dignity of -- of an interference.

But I don't believe there's anything of the sort for that momentary encounter and inquiry.

I should think any citizen has a right to inquire of a police officer as to what he's doing.

Chief Justice Earl Warren: Mr. Breckenridge.

Argument of J. M. Breckenridge

Mr. J. M. Breckenridge: May it please the Court.

Of course, the first issue before this Court is the question of the granting of certiorari and the failure to comply with judicial procedure in the State of Alabama in going from the Court of Appeals to the Supreme Court of Alabama.

That was complete -- they completely ignored that rule.

Any attorney in Alabama can tell you that that's fatal.

At any case, it's fatal.

The decisions of the Supreme Court on numerous -- Alabama Supreme Court, that they must use this paper.

Now, it is not merely a ritual.

There are reasons behind it.

I am sure it has been enforced in effect in the Supreme Court of Alabama, the reasonable body.

And it has withstood the test of time.

The plaintiff ignored it.

The -- rather the appellant ignored it.

And in view of the other aspects of the case and in view of the fact that this Court has granted certiorari and in view of Hammerstein.

And we must remember that Hammerstein, even though this Court granted certiorari, they still came back and said the court is right.

There was procedural method.

They could take Hammerstein with an appeal.

In a paternity suit, they failed to take the appeal.

They could have taken the appeal.

Hammerstein involved probation.

So this Court came back in Hammerstein and dismissed because certiorari was improvidently granted but need -- that not be in the -- that being the case nonetheless.

I think this case has an element here that is of such paramount importance but I'm not going to argue that point further.

This Court, of course, understands that point far more than I could possibly enlighten as to the need for order in the judicial procedure and they bring in the case to this Court.

Now, the next thing I would like to go is to go to the merits.

Chief Justice Earl Warren: (Inaudible) the Supreme Court there ever waived that rule?

Mr. J. M. Breckenridge: I don't know of any case it had been waived.

Chief Justice Earl Warren: How about the cases --

Mr. J. M. Breckenridge: Unless --

Chief Justice Earl Warren: -- cited by Mr. Greenberg?

Mr. J. M. Breckenridge: I don't think there was a waiver of that particular rule.

There was some other.

I would say that for -- if there -- I believe he mentioned something about when somebody was in prison and filed something, but I believe that, now, they have -- there have been cases where they have said that your failure to comply with this rule is failing intimate and then went on to render a decision, discussed the merits and render a decision.

I admit there are a few cases, very few on that but I have a feeling sometime that that's the -- that's the humanity of the court in recognizing that they don't want to put the lawyer on the spot.

It's hard to go back to his client and say, "I goofed."

They can go back now and say, "Well, although I didn't file it on paper, it wouldn't do him any good anyway", is what they said.

Now, there are one or two cases on that.

Chief Justice Earl Warren: (Inaudible) humanity in a case like this?

Mr. J. M. Breckenridge: That is for the Court of Appeals and -- I mean, the Supreme Court of Alabama and I would say that the question in this case involved a serious issue and they disposed of it as expeditely as possible.

And it is the issue that I want to come to now.

Mr. --

Chief Justice Earl Warren: May I ask you (Inaudible) Mr. Greenberg held up a document here a little while ago which would show that the ordinary legal size paper was stapled on to the -- to the larger size paper that's required by your court and I understood him to say that was -- was recognized in the court, is that correct?

Mr. J. M. Breckenridge: I don't believe it is -- it is correct.

It may be, it may not.

I have never risked doing that and I don't know of any lawyer, personally, that had risked doing it.

It's certainly not in the rules.

Chief Justice Earl Warren: Well, I thought he showed us some documents that he said --

Mr. J. M. Breckenridge: No.

Chief Justice Earl Warren: -- it was used.

Mr. J. M. Breckenridge: Well, it -- it -- if that may or may not be.

I -- I cannot answer for the court on each and every case.

Chief Justice Earl Warren: Well, if the court would -- would permit them to do that, to staple ordinary-sized legal paper onto this larger paper in some instances, do you think that the rule would be serious enough to say that --

Mr. J. M. Breckenridge: That would --

Chief Justice Earl Warren: -- we should deny a constitutional hearing a constitutional right because something of that kind was not done here?

Mr. J. M. Breckenridge: Well, as the Court has said, the -- this is bound and bound volumes and when paper is stapled on it maybe of a greater texture that will not withstand and will not stand the test of time and will not make a permanent record.

I don't think its good practice but I would -- to staple it on if it is done and I don't know that it is done.

I have -- have never seen it personally done and I don't know of any particular case in which it has been done.

Certainly, the rules do not authorize it and it is not written on paper if it's stapled on.

Now, it -- as I said, let me get to the merits.

Justice Arthur J. Goldberg: May I ask you a question (Inaudible)

Mr. J. M. Breckenridge: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. M. Breckenridge: The copy of the Court of Appeals of Alabama that is sent out to the attorney is on ordinary paper.

Now, whether or not the -- yes, I believe and I -- I'd hate to say this without knowing him, but my guess is that the -- that it is -- well, I don't -- it's transcribed to the -- well, I don't know that.

I won't say that.

But the -- that is correct.

The opinion is sent out to the attorneys and the opinion which we received is on ordinary legal paper.

Justice Arthur J. Goldberg: On which the Court here have the addendum of the additional opinion, Katz v. United States (Inaudible) filed in here.

Mr. J. M. Breckenridge: Yes, sir.

Yes, sir.

When I take certiorari --

Justice Arthur J. Goldberg: Who makes the copies?

Who makes the copies?

Mr. J. M. Breckenridge: The Clerk of the Supreme Court.

When I take certiorari from the Court of Appeals of Alabama to the Supreme Court of Alabama, I type -- have typed on transcript paper, word for word, the opinion of the Court of Appeals since it is the opinion that is before them.

Justice Arthur J. Goldberg: Does the Clerk of the Supreme Court makes the record and gave them out this way and (Inaudible)

Mr. J. M. Breckenridge: I would -- I would not say at this time.

The clerk -- clerk, of course, may set a record up in connection with filing in this Court and would be governed by the rules of this Court and such rules of Alabama Supreme Court that relate to filing in this Court and not by petition for certiorari.

That will show on -- on that -- that's the opinion that is stapled on that.

Yes, I -- that would not involve Rule 32, certainly.

If there's a rule involved here, it would be what he sent to this Court and not -- but the only -- as this Court knows, the petition was stricken, as -- as hundreds of other cases have been.

And I wouldn't -- as I said before, I think the crucial issue in this case is the fact.

Now, Mr. Greenberg, in discussing the facts, left out the most important one and that is that this occurrence occurred on May -- on a May -- on a Wednesday, which was three days subsequent to Mother's Day in May 1961.

There had been an attack on so-called "Freedom Riders" on that Sunday.

There had -- this particular group of Freedom Riders came in from Nashville, some 18 or 20 was in the group.

I believe 12 was -- testified to be from Nashville.

Of course, there's -- and they came into the bus station.

There was publicity.

There was 200 to 300 people outside of the bus station.

There was knowledge of the police that they were menacing.

The police had cleared the white people out of the bus station.

They had made arrests and they had pushed them back off the streets.

They had, for over two hours, block traffic and Reverend Shuttlesworth, in his own testimony, stated that as people got off from work and publicity was made, people began to gather there.

There was no constitutional right being denied to anybody.

The City of Birmingham was not prohibiting the Riders from boarding a bus and leaving but the buses was not run.

The -- the record shows that the bus drivers were not driving.

They just wouldn't take them out.

The reason for that on the preceding Sunday, a bus had been burned on the highway at Anniston.

And to further show the reasonableness of the police officers, in Montgomery, Alabama, there was a major attack on the peace officer, and those policemen are charged with the duty of maintaining law and order and that is the fundamental duty that they were performing.

That -- that duty wasn't making an arrest.

Of course, the -- as its brief cites the City Code section which says that the duty is to maintain law and order and to protect persons.

Now, they did not arrest the Freedom Riders, so-called.

We do not say that they violated a law.

We do not say that they violated an ordinance but we do say that there was a riot in the making.

And we do know that a riot had occurred on a bus on a highway.

We do know that a riot had occurred at another bus station a block away, well, not a riot but an attack and because there has been no riot in Birmingham, Alabama contrary to the impression a lot of people have.

There had been no fighting between the white people and the black -- and the colored people.

There have been fighting between colored people and police, yes, in certain instances.

There have been fighting against by extremist groups against police and arrests have been made on -- on both sides.

But as I was -- I was saying, the -- the riot in Montgomery, Alabama shows a situation there.

That's a fight regardless of any constitutional rights, we -- police knew that they had a situation there which -- wherein people needed protection.

And these -- and, incidentally, Montgomery, Alabama, I will tell the Court that the City of Birmingham was made a party by the Department of Justice and they attempted to enjoin us from failing to -- from failing to protect interstate travelers.

Our evidence showed that we did protect them.

It showed that we did not -- that we were doing everything in our power to protect them.

The injunction was not granted against the City of Birmingham.

It was granted against the City of Montgomery.

Justice Arthur J. Goldberg: Mr. Breckenridge, what (Inaudible)

Mr. J. M. Breckenridge: As -- Mr. Justice Goldberg, there is no specific provision of Alabama law that discusses protected custody.

There is no decision of Alabama courts that refers to protective custody.

So we are guided only by this decision that protective custody is where a person is willing to submit to the jurisdiction of the law enforcement officers and that -- in this case, we submit, of course, in this case, the Freedom Riders did not object to being taken into protective custody and I don't blame them.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. M. Breckenridge: They did not object.

They did not bring any -- they object.

They did not bring any action.

They did not make any determination.

In other words, they submitted to protective custody.

And now, that protective custody -- no charge was made against them.

They were merely transported from the place where a riot was in the making and carried to a safe place.

Now, Reverend Shuttlesworth was there.

He did not come in with these young Negroes from Nashville, and they were young mixed college student and they were entitled to the protection of the police.

And the only reasonable way the police could have protected those children or those young people was doing what they did.

They were not mistreated.

They were carried to the -- the record shows no objection even by one of them that testified, except that she was held at the city jail and released.

And they did exercise their constitutional rights when the fire was out.

When the danger was gone, they got on the buses and went to Montgomery.

Of course, they got into more trouble there but they didn't get any trouble in Birmingham.

Chief Justice Earl Warren: Then what's the arrest (Inaudible)

Mr. J. M. Breckenridge: The -- they were taken into custody and they did not object.

Chief Justice Earl Warren: But you -- you yourself said it -- you, yourself, said they were arrested.

Mr. J. M. Breckenridge: I used the word "arrest" because the record does indicate one or two times that they used the word "arrest".

An arrest, as I -- it would be taking somebody into custody for violation of some law of ordinance.

They did not violate the law of ordinance -- a law or ordinance.

But there were some 80 policemen during the week and some 40 at that time around the bus station.

The white people were being pushed back.

They were on private property and on the streets away from that.

Nighttime was coming and Reverend Shuttlesworth, in his own testimony, says that.

He says it was beginning to build up.

Now, those young people, they didn't object.

And -- and we're entitled to the -- to the inference from that.

They didn't object.

Justice Arthur J. Goldberg: (Inaudible) the Chief of Police testified (Inaudible) page 16 of the record.

The Chief says that's what I said.

The Chief of Police (Inaudible) and arrested them.

Mr. J. M. Breckenridge: For their own protection.

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. M. Breckenridge: For their own protection, yes.

Justice Arthur J. Goldberg: There's no question about that.

Mr. J. M. Breckenridge: Now, the -- the Chief is not a lawyer.

He's a law enforcement officer of 25-year service, but he is not a lawyer.

And --

Chief Justice Earl Warren: He knows whether he's making an arrest or not.

Mr. J. M. Breckenridge: And he was --

Chief Justice Earl Warren: Doesn't he?

Mr. J. M. Breckenridge: He took them into custody, yes, sir.

He took them into custody.

And he was enforcing -- he was enforcing the duty in the Police Department to maintain law and order.

Now, if the Court thinks a police did wrong, I would like for them, when they write their decision, to try to decide what should the police had done.

What would I have done if I had been there as their Chief of Police?

Frankly, I've studied -- I thought of it long and hard.

And I think I'd done the same thing if it occurred to me.

I think --

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. M. Breckenridge: Protective custody is a -- is a -- pose a dangerous thing.

I'm not going to argue otherwise.

It cannot be abused.

It cannot be used except in the most extreme circumstances and I would say that's a case of riot.

I would say if somebody was -- was threatening you, you should not be taken into protective custody, Mr. Justice Goldberg.

I -- but I would say that if I walked into New York City and went down into an area there, being a stranger or for no other purpose but maybe to carry a sign, "Vote for Wallace", suppose I did that into some areas, that would be a foolhardy thing to do in summary.

And I think the -- the police should protect me if it is reasonable, but if it's not reasonable, they should escort me out of there.

Chief Justice Earl Warren: Well, did the police --

Mr. J. M. Breckenridge: And --

Chief Justice Earl Warren: Did the police arrest any of the white people who were threatening --

Mr. J. M. Breckenridge: Yes, they --

Chief Justice Earl Warren: -- violence against these people?

Mr. J. M. Breckenridge: They had been arresting them all day.

Chief Justice Earl Warren: No, I said at that time, in this case, did they?

Mr. J. M. Breckenridge: Well, there were congregating on an area then and it was impossible to the Chief, says to tell who -- who's threatening them, who made the threats.

The police did not arrest anyone at that particular moment.

They hadn't arrested them prior to that, they arrested them after that.

And the record shows that other arrests were made.

Now -- now --

Chief Justice Earl Warren: How many officers did you have there?

Mr. J. M. Breckenridge: Around -- I think 30 or 40.

Now, let me -- they say there's no evidence of guilt.

Let me show this.

Chief Moore says, "I told him to leave.

He got between me --

Chief Justice Earl Warren: Told him to leave?

Mr. J. M. Breckenridge: To leave.

That is in one place.

To leave, that is Reverend Shuttlesworth.

Chief Justice Earl Warren: Did he have a right to tell him to leave the place?

Mr. J. M. Breckenridge: I -- I think under the decisions of Mr. -- I think he did.

I think on the circumstances, under the -- under the --

Chief Justice Earl Warren: Was he -- wasn't he entitled --

Mr. J. M. Breckenridge: -- decision by Judge Lehman in New York in People versus Galfron.

And under the -- which was concurred in by Mr. Justice Cardozo and under Edward Charles Taylor, defendant, State versus Taylor, I think he did.

Chief Justice Earl Warren: But was he entitled to be in that place to catch a bus which he intended to do?

Mr. J. M. Breckenridge: If there had been no riot in the making, Mr. Chief Justice, yes.

He had a right but there was no bus leaving.

The bus drivers had refused to drive the buses.

Chief Justice Earl Warren: How did he -- how did he know that -- that none of the bus drivers would come in for the future trips?

Mr. J. M. Breckenridge: Well, the information that they had was that the bus drivers were not going to drive it and the crowd was forming and nighttime was coming.

Chief Justice Earl Warren: Is there any -- anything in the record to show that Reverend Shuttlesworth was told this or that those Freedom Riders were told that?

Mr. J. M. Breckenridge: There is record in there that they could not get a bus and that the bus -- so that the bus drivers would not drive.

Chief Justice Earl Warren: But there was a scheduled bus to -- to run, was there not, within a reasonable time?

Mr. J. M. Breckenridge: There was scheduled buses to run, yes.

Chief Justice Earl Warren: And they were there?

Mr. J. M. Breckenridge: And they were there.

Chief Justice Earl Warren: And intending to ride on the trip.

Mr. J. M. Breckenridge: And intending to ride that bus but they --

Chief Justice Earl Warren: Were they told -- were they told, any of them, that -- that no bus drivers would come and that therefore, it was -- there was no necessity for them remaining in there that the place was closed?

Mr. J. M. Breckenridge: The -- the evidence shows that -- that they could not get a bus driver.

The evidence does not show that they were told that.

But let's remember, we do not have the persons taken into custody before this Court.

We do not have any complaint from those persons.

We have a complaint from a bystander or a stranger to the proceeding.

Chief Justice Earl Warren: Well, they didn't get six months in jail.

Mr. J. M. Breckenridge: They didn't.

They were not arrested because they did not --

Chief Justice Earl Warren: And fined, that would --

Mr. J. M. Breckenridge: No, they -- they were not.

Chief Justice Earl Warren: -- subject them to 60 or more days, did they?

Mr. J. M. Breckenridge: They -- they were not -- were not arrested.

Now, let me -- if the Court please, let me go through the evidence it shows there -- as I said, the Chief said he told them twice to leave.

And Chief Moore says, "He was in my way and he was asking me what happened."

And Captain Garrison says he stepped between the Chief and the group of Freedom Riders and I, myself, told him to move three times.

He was told to move.

Now, we submit that whether the Chief and the police were trying to maintain law and order.

Now, whether the police officers had a right -- I mean the Freedom Riders had a right to complain or not is not relevant in this case.

That police officers had a tense situation that they were trying to control and they were trying to eliminate, and they did.

And we go further and we find, at Record 29, they couldn't get a driver to take the bus out.

Did he refuse to leave?

He did not by leaving.

When Reverend Shuttlesworth refused to -- to leave after he was told to leave and Captain Warren says their Chief asked him to get out of the way.

Captain Warren testified to what the Chief says.

And we -- we don't -- we come on down to Captain Warren and we -- Captain Garrison and we find in one place of the record there where the defendant's own attorney says, "Was your action in the taking the Freedom Riders into protected custody made any harder?"

Of course, we couldn't have answered such question.

Clearly, it was a call for police -- a conclusion.

But his own attorney asked him that.

Our office -- our attorney in -- on the case did not object and he said, "Yes, it made it harder."

We have a clear case of interfering and hindering the police in this situation.

Now, this -- the question of the maintenance of law and order in this nature is such that the police, in the issuance of reasonable directions and that has always been the law, the question to determine when direction should be issued and what direction as long as they were reasonable.

And these were reasonable.

The question of the validity of any protective arrest is not involved in this case.

And we submit that the defendant, Reverend Shuttlesworth, could have cost the lives of police officers and people there.

Now, that's not farfetched in May of 1951.

It was a situation that was occurring in this -- in the south that they did later on without publicity.

Now, that -- that's your -- that's your danger in this case, is the publicity that was given.

We -- we don't know where it came from but the publicity that was given that they were coming in and the publicity has a tendency to create a tense situation.

And law and order is like, we submit, is like the police power.

Except in this -- and it's -- and then when the police is trying to enforce law and order, that they have a right to give directions.

I can go down the street here in Washington.

I wouldn't think one minute of disobeying an order of a policeman not to go down that street because I got a legal right to go down there under the law.

But that police officer said, "Go this way", for some reason that he may know and I don't know.

I've got no right to dispute that.

And that's exactly what -- what Reverend Shuttlesworth was doing.

He was arguing, he was discussing, he was failing three times and he, himself, admits twice and the evidence shows three times that he was asked to leave.

All he had to do was go to another place in the bus station.

Now, the action of the police is shown by the success, the success it had.

It did not -- it did not result in a riot like it did in Montgomery.

It did not result in harm.

It did not completely prohibit there -- their going to Montgomery and that they did go -- did go at a -- at a later time.

Justice John M. Harlan: Would you say, (Inaudible) before you sit down, Mr. Breckenridge, this man's conviction was sustained on the ground that -- for which he was --

Mr. J. M. Breckenridge: I was--

Justice John M. Harlan: -- been indicted (Inaudible)

Mr. J. M. Breckenridge: I was coming to that, Mr. Justice Harlan.

It was not sustained on the ground.

In other words, Arkansas case, they were convicted under one section of a law and charged on another.

This is not the case.

Our City Code gives us the right of election.

The hindering of a -- the hindering of a police officer, interfering with a police officer, includes assault.

And of course, if I walk up to a police officer and hold off and hit him while he is trying to perform a duty, directing traffic even, I am interfering with him in the operation of his duty.

We have never argued there was an assault in this case, but we do argue that assault is within the -- this section of the code.

And under Section 6 of our City Code, we have the right of election.

The charge was interfering with the police officer.

The -- and the Court of Appeals says included in that charge is assault and he was guilty of assault.

Now, I'm not arguing whether he was or wasn't because the judgment of the Court of Appeals is not necessarily based on the opinion but is based on the judgment which says, "It is, therefore, considered that the judgment of the Circuit Court be, in all things, affirmed."

Now, we will -- we submit that he was hindering the police officer and we must as a -- and this is distinguished from the -- from the South Carolina case because, in that case, from Edwards versus South Carolina, in that case, it said there had been -- there was no evidence there's threat and violence if the police did not move.

There was no evidence saying that at all.

We have here evidence of threatened violence.

The South Carolina case does not come within it.

And if we do not, we -- I submit to this Court that this case furnishes a vehicle for this Court to let the police officers of this nation know that they can enforce law and order and that the soldiers are not going to patrol our streets.

And I would like to go to a statement that Mr. Justice Jackson made, and I am aware it's in a dissenting opinion but some mighty good law has been made in dissenting opinions.

And, if I can find it, he made the -- he made a statement.

He says, "Silence in the speaker by authorities as a measure of mob control is like dynamiting a house to stop the spread of conflagration, but this kind of disorder does not abridge the right to speak except in an emergency."

That's Khans versus New York.

Now, of course, dynamiting a house takes a constitutional right.

Stopping these white people from coming out, hey had a legal right to walk into that bus station and walk up and down there.

Stopping them took that constitutional rights, in a way, away from it.

But law and order must prevail.

In this case, it did prevail and there was no riot like they had in Montgomery.

There is no riot like it had in places in the north.

The -- the issue was handled by the police and Reverend Shuttlesworth was like striking a match close to a gas, open gasoline.

Now, that's what his actions constituted.

And we -- we think that this Court should recognize that there's nothing, of course, constitutional rights are important.

They are the foundation of this nation but they should not, should not be used to destroy law and order because once law and order is destroyed, there is no other rights.

Chief Justice Earl Warren: Mr. Breckenridge, in the (Inaudible) the question of the assault.

Now, your -- your Court of Appeals apparently say -- said that this man had committed an assault.

Suppose we cannot sustain you on any other grounds than that he did make an assault.

Do you say that now that he did make an assault?

Mr. J. M. Breckenridge: The Court of Appeals --

Chief Justice Earl Warren: That we could rest this case on.

Mr. J. M. Breckenridge: The court -- Court of Appeals based that on common law, on common law theory of assault that -- that his actions constituted a threat.

I would not disagree with them.

I would not and I have not made that a cardinal point of my argument in this case.

Chief Justice Earl Warren: Well, suppose we -- suppose we have to make it a basic consideration in the case, do you -- do you say it is an assault or it is not?

Mr. J. M. Breckenridge: I think it constitutes a threat to interference of the action and I would go with the Court of Appeals if it boiled down to that.

I don't think that is necessary, Mr. Chief Justice.

Justice John M. Harlan: Have we got any other cases in Alabama that says that the assault section of your statute is included in the offense of interfering with the police?

Mr. J. M. Breckenridge: No, we have -- I don't know about the assault section but --

Justice John M. Harlan: Well --

Mr. J. M. Breckenridge: -- but we have a section in the City Code which says that we can in -- that Montgomery --

Justice John M. Harlan: As I -- I read the opinion of the Court of Appeals to say that he could've been convicted under this section, this other section, the assault section, not that the section was included as an offense in the --

Mr. J. M. Breckenridge: Mr. --

Justice John M. Harlan: -- interference section.

Mr. J. M. Breckenridge: Well, an assault, that would be a question of fight, Mr. Justice Harlan, because if a man assaults an officer, he's interfering with --

Justice John M. Harlan: 60 (Inaudible) --

Mr. J. M. Breckenridge: He's interfering with his performance of his duties, if he's performing duties at that time.

And Section 6 of the General City Code gives us a right of election, which the city did elect in this case.

Thank you, sir.

Justice John M. Harlan: Okay.

Chief Justice Earl Warren: Mr. Greenberg.

Rebuttal of Jack Greenberg

Mr. Jack Greenberg: please the Court.

I would just like to clear up two brief points.

First of all, when these Freedom Riders with whom Shuttlesworth was associated with, were arrested, they were all -- they were placed in jail for 12 hours but this was not merely a question of taking them out of the presence of a mob that allegedly was about to attack them.

They were actually placed in jail for a period of 12 hours.

Secondly --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Jack Greenberg: Yes, and that's on page 54 of the record.

Secondly, Shuttlesworth -- if this was for their protection, the question then arises, why weren't they protecting Shuttlesworth?

Shuttlesworth was a Freedom Rider.

He was part of the group.

He had a ticket.

He had a suitcase.

He was going with them.

He -- that incidentally, is brought out even more fully in a case not cited in our brief.

He was charged, at the same time, for another crime, conspiracy to cause a mob to gather and that was reversed in the Alabama Court of Appeals at 157 2d 763.

And that makes even more clear what also appears in this record, that this was one large group of which Shuttlesworth also was a member.

But they protected the group and they arrested Shuttlesworth for -- apparently just being a member of the group.

As to the question of assault being an included offense, Cole against Arkansas and other cases are based on the principle that, if one is charged with a crime, he has an opportunity to defend against it.

He could've presented evidence to indicate there was no assault.

He could have argued to the court below.

He could've briefed the fact that there was no assault and indeed, there was no assault.

And the opinion of the Court of Appeals is based upon a clear misapprehension of the record concerning rudeness and anger.

And if there were some notice that this was to be a prosecution for assault, either as a separate offense or as an included offense, there could have been a defense against assault.

But the first notice anybody had of that was in the affirmance of the Alabama Court of Appeals.

We submit, however, that the no evidence point is the dominant point here.

There is no point in sending the case back to the Alabama courts for a reconsideration of whether or not there was an assault or there was interference with the police officer in the exercise of his duty, simply because there is no evidence of either.

In any way, it is defined, any way that these various crimes are defined, either as heretofore or as defined for the first time, as do some of them, in the opinion of the Court of Appeals.