Arbeitman v. District Court of Vermont, 1124

• Citation: 522 F.2d 1031
• Decision Date: 16 September 1975
• Docket Number: D,No. 1124,1124
• Parties: David ARBEITMAN, Petitioner-Appellant, v. DISTRICT COURT OF VERMONT et al., Appellees. ocket 74-2509.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1031

522 F.2d 1031

David ARBEITMAN, Petitioner-Appellant, v. DISTRICT COURT OF VERMONT et al., Appellees.

No. 1124, Docket 74-2509.

United States Court of Appeals, Second Circuit.

Argued June 10, 1975.

Decided Sept. 16, 1975.

M. Jerome Diamond, Atty. Gen., State of Vt. (Richard M. Finn, Asst. Atty. Gen., Barre, Vt., on the brief), for appellees.

Richard S. Kohn, Montpelier, Vt. (American Civ. Liberties Union of Vt., Inc., of counsel), for petitioner-appellant.

Before FEINBERG, OAKES and VAN GRAAFEILAND, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

On May 11, 1972, appellant, a demonstrator, seated himself in the doorway of the Federal Building in Montpelier, Vermont, with his back against the entrance door. In order for people to enter the building, it was necessary for him to be shoved out of the way. This was accomplished by the building guard pushing on the door from the inside and would-be entrants pulling on it from the outside. Heedless of warnings from the State's Attorney, petitioner remained in this position until arrested, although he knew that anyone trying to gain admittance would be required to push him out of the way.

He challenges his conviction under 13 V.S.A. § 1026(5) which reads in part as follows:

"A person who, with intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof;

(5) Obstructs vehicular or pedestrian traffic, shall be imprisoned for not more than 60 days or fined not more than $500.00 or both."

Petitioner's protest, directed originally against the Vietnam war, is now against the constitutionality of this statute. After exhausting his remedies in the State courts of Vermont, ¹ he petitioned for a writ of habeas corpus in the United States District Court for the District of Vermont. This is an appeal from the order of Judge Coffrin dismissing his petition.

Appellant's argument, in brief, is that the statute is both unconstitutionally vague and unconstitutionally overbroad. Judge Coffrin rejected both contentions, and we find no error in such rejection.

In Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1967), the Supreme Court said that the term "obstruct" requires no guessing as to its meaning. An obstruction which inconveniences or annoys is as readily recognizable. The language of this statute is distinguishable from that of the ordinance found unconstitutionally vague in Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), which prohibited "conduct" of three or more persons assembled on a sidewalk which was "annoying" to persons passing by. Annoying conduct may come in a multitude of "shapes, sizes and colors" and is almost impossible to define or standardize. However, as Mr. Justice White stated in his dissenting opinion in Coates, "Any man of average comprehension should know that some kinds of conduct, such as assault or blocking passage on the street, will annoy others . . . ." Id. at 618, 91 S.Ct. at 1690.

A similar distinction may be made with regard to the Massachusetts statute held unconstitutionally vague in Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974), which prohibited contemptuous treatment of the American flag. As the Court pointed out, "What is contemptuous to one man may be a work of art to another." Id. at 573, 94 S.Ct. at 1247.

An obstruction which inconveniences or annoys is a physical condition which is apparent to all "men of common intelligence." Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Recognition of its existence is not dependent upon the "personal predilections" of policemen, prosecutors and juries. Smith v. Goguen, supra, at 575, 94 S.Ct. 1242.

In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1971), the Supreme Court affirmed a conviction under a Kentucky statute which prohibited congregating in a public place and refusing a lawful police order to disperse "with intent to cause public inconvenience, or alarm, or recklessly creating a risk thereof". The Court said:

"We agree with the Kentucky court when it said: 'We believe that citizens who desire to obey the statute will have no difficulty in understanding it. . . .' " (citation omitted.)

Id. at 110, 92 S.Ct. at 1957.

We believe the same observation may properly be made with regard to the Vermont statute herein.

Appellant, while conceding that his conduct constituted a "hard-core" violation of the statute, ² argues, nonetheless, that the statute is facially overbroad and therefore unconstitutional. He contends that it would proscribe all parades, street assemblies and protest demonstrations and any other concerted activity that might cause an obstruction of pedestrian traffic.

It is now settled "that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may be applied unconstitutionally to others, in other situations not before the Court". Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). In the First Amendment context attacks have been permitted on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a narrowly drawn statute. Parker v. Levy, 417 U.S. 733, 759, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). However, when, as here, conduct and not merely speech is...