Squire v. Pace, 74-2161

• Decision Date: 20 May 1975
• Docket Number: No. 74-2161,74-2161
• Citation: 516 F.2d 240
• Parties: Stephen Earl SQUIRE, Appellee, v. Raymond C. PACE, City Sheriff, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 240

516 F.2d 240

Stephen Earl SQUIRE, Appellee, v. Raymond C. PACE, City Sheriff, Appellant.

No. 74-2161.

United States Court of Appeals Fourth Circuit.

Argued March 4, 1975.

Decided May 20, 1975.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen. on brief), for appellant.

John C. Lowe, Charlottesville, Va. (F. Guthrie Gordon, III, Charlottesville, Va., on brief), for appellee.

Before BUTZNER and FIELD, Circuit Judges, and HALL, District Judge.

PER CURIAM:

The Sheriff of the City of Charlottesville, Virginia, appeals from an order of the district court which declared Virginia's disorderly conduct statute to be unconstitutional and granted Stephen Earl Squire a writ of habeas corpus.

At an ROTC review, Squire demonstrated against the Vietnam War by carrying a placard stating "In Vietnam we killed millions to avoid a bloodbath." An official of the University ordered Squire to leave. When he refused, the official confiscated his sign, after a tussle in which no one was hurt. Squire demanded the return of his sign and again refused to leave. Police led him from the stadium without resistance and arrested him for disorderly conduct.

The state trial court instructed the jury that "disorderly conduct is such behavior as tends to disturb peace and good order." It declined to give the following instruction which Squire offered:

"The peaceful display of the sign being held by the Defendant in this case at the time it was taken from his hands by (the University official) was protected conduct under the First Amendment of the Constitution of the United States and therefore did not constitute disorderly conduct per se."

Squire was sentenced to a term of four months in jail and to pay a fine of $600. His conviction was affirmed by the Supreme Court of Virginia, which granted a writ of error to review his claim that the Municipal Court of Charlottesville lacked territorial jurisdiction but denied a writ to review the constitutionality of Virginia's disorderly conduct statute. Squire v. Commonwealth, 214 Va. 260, 199 S.E.2d 534 (1973).

Squire concedes he could have been prosecuted for criminal trespass. The Commonwealth, however, elected to try him for disorderly conduct, and thus the sole issue presented by this appeal is the constitutionality of the Virginia disorderly conduct statute, Va.Code Ann. § 18.1-253.2 (Cum.Supp.1974). That statute provides in part:

"If any person behaves in a riotous or disorderly manner in any street, highway, public building, or any other public place, other than those mentioned in the preceding section . . . or causes any unnecessary disturbance in or on any public conveyance, by running through it, climbing through windows or upon the seats, failing to move to another seat when lawfully requested to so move by the operator, or otherwise annoying passengers or employees therein, he shall be guilty of a misdemeanor."...