789 F.2d 1103 (5th Cir. 1986), 84-2181, Hill v. City of Houston, Tex.

Docket Nº:84-2181.
Citation:789 F.2d 1103
Party Name:Raymond Wayne HILL, Plaintiff-Appellant, v. The CITY OF HOUSTON, TEXAS, Defendant-Appellee.
Case Date:May 14, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1103

789 F.2d 1103 (5th Cir. 1986)

Raymond Wayne HILL, Plaintiff-Appellant,


The CITY OF HOUSTON, TEXAS, Defendant-Appellee.

No. 84-2181.

United States Court of Appeals, Fifth Circuit

May 14, 1986

Page 1104

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

Bruce V. Griffiths, Houston, Tex., James C. Harrington, Austin, Tex., for Greater Houston, etc. et al.

Mark Elvig, Asst. City Atty., Roy F. Martin, III, Senior 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:

A Houston, Texas ordinance makes it a misdemeanor not only to assault but also to "in any manner oppose, molest, abuse or interrupt" a police officer 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 ordinance in its present form is facially and substantially overbroad and, therefore, unconstitutional. We reverse the judgment of the district court insofar as it upheld the constitutionality of the ordinance and remand for the award of appropriate relief to the plaintiff. Based on the district court's findings of fact, we reject all the rest of his claims.


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

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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, Charles attempted to leave, but Officer Kelley grabbed him by the shoulder and began yelling at him. Raymond 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.

Officer Kelley testified that Charles's actions were "extremely erratic.... He was twitching all of the time.... I didn't know if he was about to have a seizure or if he was being insolent or what." Before Kelley could determine the cause of Charles Hill's behavior, Charles began walking away. Kelley tried to stop him but Charles continued walking so Kelley took him by the arm and stopped him. The district court rejected Raymond's testimony, and found that "Officer Kelley approached Charles Hill and began speaking with him." This finding is fully supported by the record. 1

By this time a crowd had gathered. Raymond, who was standing in front of the crowd, about seven or eight yards from them, yelled to the policemen, in an admitted attempt to divert their attention from Charles, "Leave him alone. Why don't you pick on somebody your own size?" or words to that effect. Raymond's statements were unaccompanied by any menacing or threatening gesture, although Officer Kelley characterized the tone of his speech as "loud" and "boisterous." Kelley testified that he interpreted Raymond's remarks as somewhat threatening because of their tone, but there is no evidence to support the district court's finding that Raymond "shout[ed] abuses" at Officer Kelley.

According to Officer Kelley's testimony, after Raymond yelled to him, Kelley turned towards Raymond and asked, "Are you interrupting me in my official capacity as a Houston police officer?" He testified that Raymond, who was standing with a crowd of people behind him, put his hands on his hips and replied, "Yes. Why don't you pick on somebody my size?" Officer Kelley then arrested Raymond and charged him with violating the ordinance. After a trial in municipal court, Raymond was found not guilty for reasons that have not been preserved in a record.

Raymond Hill's arrest was neither his first encounter with the criminal law nor the first time he had been charged with violating the ordinance. At the time, he was forty-one years old and a resident of Houston, Texas. After serving five years in the state penitentiary for burglary convictions, Hill had returned to Houston in 1975 and helped form the Houston Gay Political Caucus. He has since been a vocal advocate of the homosexual cause and was on the Caucus' Board of Directors at the time of trial. In addition to employment as a paralegal, he also did radio shows for a local community service broadcasting station and, accordingly, carried a press badge.

Twice before and once after his February 14, 1982 arrest, Hill was charged with violating the challenged ordinance, although he has never been convicted. Hill testified that he made a practice of deliberately confronting policemen engaged in making arrests. He was disturbed by what he perceived

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to be police harassment of homosexuals, and he testified that he would prefer to be arrested himself rather than see the arrest of persons whose careers might be damaged. He added, "I am prepared to respond in any legal, nonaggressive or nonviolent way, to any illegal police activity, at any time, under any circumstances."

Hill filed this suit, under 42 U.S.C. Sec. 1983, claiming that his arrest was illegal and seeking money damages from the city of Houston and the arresting officers; he also sought expungement of his arrest record, injunctive and declaratory relief, and attorney's fees. He contended that he was arrested for exercising his right of free speech. He also contended that, regardless of the particulars of his own arrest, enforcement of the ordinance should be enjoined or the ordinance declared invalid because it is unconstitutionally vague and because its potential for application to protected speech renders it unconstitutionally overbroad. Before trial and by agreement, all claims against the two officers were dismissed and the City withdrew its jury demand. After a bench trial, the district judge rejected the constitutional attacks, upheld the arrest, and entered a judgment for the City. On appeal, a divided panel of our court voted to reverse and remand. 2 The panel majority did not decide whether the ordinance was unconstitutionally vague or whether, as applied, it denied Hill's right of free speech. We took the case en banc and now review the judgment of the district court.


Article III of the Constitution establishes a jurisdictional threshold to be crossed by any citizen who would challenge the constitutionality of a statute. An actual case or controversy must be alleged. "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." 3 "The gist of the question of standing" as the Supreme Court said in Baker v. Carr, 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." 4 The district court found that Hill had "not succeeded in raising any valid First Amendment claims," and, on this basis, denied him standing to pursue his claim.

The usual standing rule is clear: "[O]ne 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

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rights of free expression are violated, but because of a judicial predication or assumption that the statute's very existence may cause others not before the court to refrain from protected speech or expression." 6

Hence, courts have allowed plaintiffs in suits for declaratory or injunctive relief to raise first amendment challenges to statutes because of their alleged overbreadth or vagueness. 7

Hill clearly had sufficient standing to question the facial validity of the ordinance. Hill's record of arrests under the ordinance and his adopted role as citizen provocateur made his article III standing to seek injunctive and declaratory relief certain. 8



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