City of New Orleans v. Lewis

• Decision Date: 06 November 1972
• Docket Number: No. 51231,51231
• Parties: CITY OF NEW ORLEANS v. Mallie LEWIS.
• Court: Louisiana Supreme Court

Page 450

269 So.2d 450

263 La. 809

CITY OF NEW ORLEANS v. Mallie LEWIS.

No. 51231.

Supreme Court of Louisiana.

Nov. 6, 1972.

John Wilson Reed, New Orleans, for petitioner.

Blake G. Arata, City Atty., Servando C. Garcia, III, Asst. City Atty., for respondent.

HAMLIN, Justice:

The United States Supreme Court, June 26, 1972, vacated the judgment of our Court of March 10, 1971 in City of New Orleans vs. Mallie Lewis, which recited: 'Writ refused. The judgment of the lower court is correct.' It remanded the cause to us for reconsideration in the light of Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (Mr. Chief Justice Burger, with whom Mr. Justice Blackmun and Mr. Justice Rehnquist joined, dissented.)

Mallie Lewis was issued a citation for reviling the police on January 3, 1970; she was tried in the First Municipal Court, City of New Orleans, and found guilty of violating Ordinance 828 MCS, Section 49--2, resisting arrest, and Section 49--7, reviling the police. She was thereafter sentenced to pay a fine of $10.00 or serve ten days in jail on each charge. ¹

An appeal was lodged in the Criminal District Court for the Parish of Orleans; that court affirmed the conviction and sentence. ² Mallie Lewis then applied to this Court for writs, which, as stated supra, were refused. 257 La. 993, 244 So.2d 860. An appeal was taken to the United States Supreme Court where defendant was granted the instant remand.

Herein, Mallie Lewis avers that the First Municipal Court, City of New Orleans, and the Criminal District Court for the Parish of Orleans erred in holding the reviling the police ordinance, 828 M.C.S. 49--7, constitutional.

Counsel for Mallie Lewis submits:

'The Ordinance involved here suffers from all the defects of the Georgia statute and more. There are not even in the New Orleans ordinance the requirements that the words be spoken 'without provocation,' that the words 'tend to cause a breach of the peace,' or that the words be spoken 'in the presence' of the one spoken about. Like the Georgia statute the New Orleans ordinance sweeps within its proscription all forms of abusive and derogatory speech. Even more so than was the case with the Georgia statute, it is impossible to justify the ordinance under the narrow exception to free speech provided in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

'The New Orleans ordinance, 828 M.C.S. 49--7, must be found unconstitutional under Gooding v. Wilson, Supra. Defendant Lewis' convictions for reviling the police and for resisting arrest must be reversed with instructions to discharge the defendant Lewis.'

Counsel's constitutional attack of Section 49--7, 828 M.C.S., is based on alleged overbroadness and vagueness; the Section as certified by the Assistant Clerk of Council recites:

'Section 49--7. Cursing, etc., police prohibited.

'It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty. (Flynn's Digest 1896, art. 1363.)'

The City of New Orleans contends that due to prior decisions of the United States Supreme Court and to the particularized scope of Section 49--7, where 'wanton' cursing and reviling of a police officer must occur while he is in the performance of his duty, the Section is not vague and overbroad as contended by defendant. It prays that the judgments of the lower courts upholding the constitutionality of Section 49--7 be affirmed.

I.

Initially, we shall discuss the case of Gooding v. Wilson. The defendant was convicted in the Georgia courts on two counts of using opprobrious words and abusive language in violation of Georgia Code Section 26--6303 which recited:

'Any person who shall, without provocation, use to or of another, and in his presence, opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor.'

Habeas Corpus proceedings in the District Court for the Northern District of Georgia were taken, and the District Court held Georgia Code Section 26--6303 unconstitutionally vague and broad, 303 F.Supp. 952; it set aside the defendant's conviction. The Court of Appeals for the Fifth Circuit affirmed, 431 F.2d 855 (1970); the United States Supreme Court noted probable jurisdiction of the State's appeal; it affirmed.

In Gooding, the Supreme Court stated: '* * * In other words, the statute must be carefully drawn or be authoritatively construed to punish only Unprotected speech and not be susceptible of application to protected expression. * * * ' 92 S.Ct. at p. 1106. (Emphasis ours) The Court further stated: '* * * Our decisions since Chaplinsky have continued to recognize state power constitutionally to punish 'fighting' words under carefully drawn statutes not also susceptible of application to protected expression, Cohen v. California Supra, 403 U.S. (15), at 20, 91 S.Ct., (1780) at 1785, (29 L.Ed.2d 284); Bachellar v. Maryland, 397 U.S. 564, 567, 90 S.Ct. 1312, 1314, 25 L.Ed.2d 570 (1970); see Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365, 22 L.Ed.2d 572 (1969). We reaffirm that proposition today.' 92 S.Ct. at pp. 1106--1107.

In affirming the District Court and the Court of Appeals, the United States Supreme Court concluded in Gooding v. Wilson as follows:

'We conclude that '(t)he separation of legitimate from illegitimate speech calls for more sensitive tools than (Georgia) has supplied.' Speiser v. Randall, Supra, 357 U.S. (513), at 525, 78 S.Ct. (1332), at 1342. (2 L.Ed.2d 1460) The most recent decision of the Georgia Supreme Court, Wilson v. State, Supra, in rejecting appellee's attack on the constitutionality of § 26--6303, stated that the statute 'conveys a definite meaning as to the conduct forbidden, measured by common understanding and practice.' 223 Ga. (531), at 533, 156 S.E.2d (446), at 448. Because earlier appellate decisions applied § 26--6303 to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that the standard allowing juries to determine guilt 'measured by common understanding and practice' does not limit the application of § 26--6303 to 'fighting' words defined by Chaplinsky. Rather, that broad standard effectively 'licenses the jury to create its own standard in each case.' Herndon v. Lowry, 301 U.S. 242, 263, 57 S.Ct. 732, 741, 81 L.Ed. 1066 (1937). Accordingly, we agree with the conclusion of the District Court, '(t)he fault of the statute is that it leaves wide open the standard of responsibility, so that it is easily susceptible to improper application.' 303 F.Supp., at 955--956. Unlike the construction of the New Hampshire statute by the New Hampshire Supreme Court, the Georgia appellate courts have not construed § 26--6303 'so as to avoid all constitutional difficulties.' United States v. Thirty- Seven (37) Photographs, Supra, 402 U.S. (363), at 369, 91 S.Ct. (1400) at 1405. (28 L.Ed.2d 822).

'Affirmed.'

We do not find Georgia Code Section 26--6303 as written and Section 49--7, 828 M.C.S. New Orleans, Louisiana, similar. The Georgia section provided that the prohibited language would have to tend to cause a breach of the peace. Sec. 49--7 provides that it Shall be a breach of the peace to use the prohibited language toward or with reference to any member of the city police While in the actual performance of his duty. Our secion is restricted to any member of the city police; it is narrow; it is specific. ³ The Georgia Section was not specific or narrow; it pertained 'to or of another.'

II.

There is a major difference between a member of the city police while in the actual performance of his duty and 'another.' Black's Law Dictionary, Revised Fourth Edition, 1968, defines a Police Officer as: 'One of the staff of men employed in cities and towns to enforce the municipal police, i.e., the laws and ordinances for preserving serving the peace and good order of the community. Otherwise called 'policemen. " See, 62 C.J.S. Municipal Corporations § 568, p. 1090 et seq.; 47 Am.Jur. Sheriffs, Police, and Constables, Sec. 5, Peace Officers as Public Officers, p. 823 et seq.

In Green v. City of Bennettsville, 197 S.C. 313, 15 S.E.2d 334, 336 (1941), the Supreme Court of South Carolina stated:

"Policeman' has been defined as: 'A member of the Police.' 'Police' is defined: 'An organized civil force for maintaining order, preventing and detecting crime, and enforcing the laws; the body of men by which the municipal laws and regulations of a city, town, or district are enforced.' Webster's Twentieth Century Dictionary, Unabridged. And again it is defined:

"That species of superintendence by magistrates which has principally for its object the maintenance of public tranquility among the citizens. The officers who are appointed for this purpose are also called the police. * * *

"The word Police has three significations. The First relates to the measures which are adopted to keep order, the laws and ordinances on cleanliness, health, the markets, etc. The Second has for its object to procure to the authorities the means of detecting even the smallest attempts to commit crime, in order that the guilty may be arrested before their plans are carried into execution and delivered over to the justice of the country. The Third comprehends the laws, ordinances, and other measures which require the citizens to exercise their rights in a particular form.' See, Wyndham v. United States, 197 F.Supp. 856 (D.C.1961).

'Policemen of a city or town are peace officers and a policeman is a public officer, whose duties relate to governmental functions of a municipality.' Klam v. Boehm, 72 Idaho 259, 240 P.2d 484 (1952). '* * * the term 'Policeman,' as that term is generally used and understood, means a person who is a...