764 F.2d 1156 (5th Cir. 1985), 84-2181, Hill v. City of Houston, Tex.

Docket Nº:84-2181.
Citation:764 F.2d 1156
Party Name:Raymond Wayne HILL, Plaintiff-Appellant, v. The CITY OF HOUSTON, TEXAS, Defendant-Appellee.
Case Date:July 11, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1156

764 F.2d 1156 (5th Cir. 1985)

Raymond Wayne HILL, Plaintiff-Appellant,


The CITY OF HOUSTON, TEXAS, Defendant-Appellee.

No. 84-2181.

United States Court of Appeals, Fifth Circuit

July 11, 1985

Opinion on Granting of Rehearing En Banc Sept. 4, 1985.

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Michael A. Maness, Houston, Tex., for plaintiff-appellant.

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Roy F. Martin, III, Senior Asst. City Atty., City of Houston Legal Dept., Mark Elvig, Asst. City Atty., Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.


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.


Section 34-11(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

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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.


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

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proper for the court to consider the likelihood of success on the merits in determining the plaintiff's 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 injunctive relief to raise First Amendment challenges to statutes because of their alleged...

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