482 U.S. 451 (1987), 86-243, City of Houston, Texas v. Hill

Docket Nº:No. 86-243
Citation:482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398, 55 U.S.L.W. 4823
Party Name:City of Houston, Texas v. Hill
Case Date:June 15, 1987
Court:United States Supreme Court

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482 U.S. 451 (1987)

107 S.Ct. 2502, 96 L.Ed.2d 398, 55 U.S.L.W. 4823

City of Houston, Texas



No. 86-243

United States Supreme Court

June 15, 1987

Argued March 23, 1987




Upon shouting at police in an attempt to divert their attention from his friend during a confrontation, appellee was arrested for "willfully . . . interrupt[ing] a city policeman . . . by verbal challenge during an investigation" in violation of a municipal ordinance making 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." After his acquittal in Municipal Court, appellee brought suit in Federal District Court challenging the ordinance's constitutionality and seeking, inter alia, damages and attorney's fees. The District Court held that the ordinance was not unconstitutionally vague or overbroad on its face, but the Court of Appeals reversed, finding that the ordinance was substantially overbroad, since its literal wording punished and might deter a significant range of protected speech.


1. A municipal ordinance that makes it unlawful to interrupt a police officer in the performance of his duty is substantially overbroad, and therefore invalid on its face under the First Amendment. The ordinance in question criminalizes a substantial amount of, and is susceptible of regular application to, constitutionally protected speech, and accords the police unconstitutional enforcement discretion, as is demonstrated by evidence indicating that, although the ordinance's plain language is violated scores of times daily, only those individuals chosen by police in their unguided discretion are arrested. Appellant's argument that the ordinance is not substantially overbroad because it does not inhibit the exposition of ideas, but simply bans unprotected "core criminal conduct," is not persuasive. Since the ordinance's language making it unlawful to "assault" or "strike" a police officer is expressly preempted by the State Penal Code, its enforceable portion prohibits verbal interruptions of police, and thereby deals with speech, rather than with core criminal conduct. Moreover, although speech might be prohibited if it consists of "fighting words" that by their very utterance inflict injury or tend to incite an immediate breach of the peace, the ordinance in question is not limited to such expressions, but broadly applies to speech that "in any manner . . . interrupt[s] any policeman," and thereby impermissibly infringes the constitutionally protected freedom of individuals verbally to

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oppose or challenge police action. Appellant's contention that the ordinance's sweeping nature is both inevitable and essential to maintain public order is also without merit, since the ordinance is not narrowly tailored to prohibit only disorderly conduct or fighting words, but impermissibly provides police with unfettered discretion to arrest individuals for words or conduct that are simply annoying or offensive. Pp. 458-467.

2. Abstention -- assertedly to allow the state courts to reach a readily available limiting construction that would eliminate the ordinance's overbreadth -- would be inappropriate here. Even if this case did not involve a First Amendment facial challenge, for which abstention is particularly inappropriate, the ordinance in question is plain and unambiguous, and thus is not susceptible to a limiting construction. Moreover, it cannot be limited by severing discrete unconstitutional subsections, since its enforceable portion is unconstitutional in its entirety. Even if the municipal courts had not had many opportunities to narrow the ordinance's scope, appellant's claim that state courts had not had the chance to construe the ordinance would be unavailing in light of the ordinance's nonambiguity. Nor does the availability of certification to state courts under state law in itself render abstention appropriate where, [107 S.Ct. 2505] as here, there is no uncertain question of state law to be resolved. Pp. 467-471.

3. Although the preservation of liberty depends in part upon the maintenance of social order, the First Amendment requires that officers and municipalities respond with restraint in the face of verbal challenges to police action, since a certain amount of expressive disorder is inevitable in a society committed to individual freedom, and must be protected if that freedom would survive. Pp. 471-472.

789 F.2d 1103, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BLACKMUN, J., filed a concurring opinion, post p. 472. SCALIA, J., filed an opinion concurring in the judgment, post p. 472. POWELL, J., filed an opinion concurring in the judgment in part and dissenting in part, in which O'CONNOR, J., joined, in Parts I and II of which REHNQUIST, C.J., joined, and in Parts II and III of which SCALIA, J., joined, post p. 473. REHNQUIST, C.J., filed a dissenting opinion, post p. 481.

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BRENNAN, J., lead opinion

JUSTICE BRENNAN delivered the opinion of the Court.

This case presents the question whether a municipal ordinance that makes it unlawful to interrupt a police officer in the performance of his or her duties is unconstitutionally overbroad under the First Amendment.


Appellee Raymond Wayne Hill is a lifelong resident of Houston, Texas. At the time this lawsuit began, he worked as a paralegal and as executive director of the Houston Human Rights League. A member of the board of the Gay Political Caucus, which he helped found in 1975, Hill was also affiliated with a Houston radio station, and had carried city and county press passes since 1975. He lived in Montrose, a "diverse and eclectic neighborhood" that is the center of gay political and social life in Houston. App. 26-27.

The incident that sparked this lawsuit occurred in the Montrose area on February 14, 1982. Hill observed a friend, Charles Hill, intentionally stopping traffic on a busy street, evidently to enable a vehicle to enter traffic. Two Houston police officers, one of whom was named Kelley, approached Charles and began speaking with him. According to the District Court, "shortly thereafter," Hill began shouting at the officers "in an admitted attempt to divert Kelley's attention from Charles Hill." App. to Juris. Statement B-2.1 Hill

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first shouted: "Why don't you pick on somebody your own size?" After Officer Kelley responded: "[A]re you interrupting me in my official capacity as a Houston police officer?" Hill then shouted: "Yes, why don't you pick on somebody my size?" App. 40-41, 58, 71-74. Hill was arrested under Houston Code of Ordinances, § 34-11(a), for "willfully or intentionally interrupt[ing] a city policeman . . . by verbal challenge during an investigation." App. 2. Charles Hill was not arrested. Hill was then acquitted after a nonjury trial in Municipal Court.2

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[107 S.Ct. 2506] Code of Ordinances, City of Houston, Texas, § 34-11(a) (1984), reads:

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.3

Following his acquittal in the Charles Hill incident, Hill brought the suit in the Federal District Court for the Southern District of Texas, seeking (1) a declaratory judgment that § 34-11(a) was unconstitutional both on its face and as it had been applied to him, (2) a permanent injunction against any attempt to enforce the ordinance, (3) an order expunging the records of his arrests under the ordinance, and (4) damages and attorney's fees under 42 U.S.C. §§ 1983 and 1988.

At trial, Hill introduced records provided by the city regarding both the frequency with which arrests had been made for violation of the ordinance and the type of conduct with which those arrested had been charged. He also introduced evidence and testimony concerning the arrests of several reporters under the ordinance. Finally, Hill introduced evidence regarding his own experience with the ordinance, under which he has been arrested four times since 1975, but never convicted.

The District Court held that Hill's evidence did not demonstrate that the ordinance had been unconstitutionally applied.4 The court also rejected Hill's contention that the

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ordinance was unconstitutionally vague or overbroad on its face. The ordinance was not vague, the court stated, because:

[t]he wording of the ordinance is sufficiently definite to put a person of reasonable [107 S.Ct. 2507] intelligence on fair notice of what actions are forbidden. In particular, the Court finds that the use of words such as "interrupt" are sufficiently clear by virtue of their commonly understood, everyday definitions. "Interrupt" commonly means to cause one to cease, such as stopping someone in the middle of something. The Plaintiff, for example, clearly "interrupted" the police officers regarding the Charles Hill incident.

App. to Juris. Statement B-8. The court also held that the statute was not overbroad, because "the ordinance does not, at least facially, proscribe speech or conduct which is protected by the First Amendment." Id. at B-12.

A panel of the Court of Appeals reversed. 764 F.2d 1156 (CA5 1985). The city's suggestion for rehearing en banc was granted, and the Court of Appeals, by a vote of 8-7, upheld the judgment of the panel. 789 F.2d 1103 (1986). The Court of Appeals agreed with the District Court's conclusion that the ordinance was not vague, and that it "plainly encompasse[d] mere...

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