City of St. Petersburg v. Waller
| Decision Date | 12 April 1972 |
| Docket Number | No. 41080,41080 |
| Parties | CITY OF ST. PETERSBURG, a municipal corporation, Petitioner, v. Joseph WALLER, Jr., Respondent. |
| Court | Florida Supreme Court |
Carl R. Linn, Asst. City Atty., for petitioner.
Gardner W. Beckett, Jr., of Nelson, Beckett, Nelson & Thomas, St. Petersburg, for respondent.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 245 So.2d 685. Jurisdiction is based on conflict between the decision sought to be reviewed and Nixon v. State. 1
Respondent, defendant below, is the leader of a militant organization called JOMO, for Junta of Military Organization. On the night of August 14, 1968, defendant and a group of JOMO members left their headquarters on Harrington Avenue South in the City of St. Petersburg and went looking for the police following a report that a person named Loretta Munderlyn had been arrested on 22nd Street and 7th Avenue. Defendant had with him an amplified megaphone and his followers wore the distinctive dress or uniform of their organization. A police cruiser on routine patrol first spotted the group gathered at the corner of 22nd Street and 9th Avenue. As the police car approached, people in the group yelled, As the car came closer the crowd began to chant, 'Pig, pig.' On reaching the corner of 22nd Street and 9th Avenue, abreast of the group, the cruiser slowed to a stop for a red light. At this point, defendant Waller stepped into the street, thrust his megaphone close to the front right-hand window of the police car and yelled, The megaphone was described as 'very loud' and sufficient to be heard for blocks away. Other members of the group behind the defendant yelled, 'Pig' and various obscenities at the officers in the car.
The officers radioed for a conference with the shift Lieutenant, Lieutenant Colman, who met them at a corner six blocks away. Lieutenant Colman in a patrol car with one other officer then proceeded to the scene followed by the car that had first encountered the group. A third police car subsequently arrived so that there were a total of nine officers at the scene.
As Lieutenant Colman's car approached the group on the corner of 22nd Street, they could hear from half a block away the words, 'Pig, white pig, hey, there's the pigs,' shouted in their direction through a sound-powered megaphone. Defendant was using the megaphone and was the most vocal and noticeable member of the group. As the Colman car approached, the group moved down from the curb and into the street. Defendant again directed the megaphone very close to the cruiser and yelled through it at the officers inside. Some of the individuals in the group started around to the front of the car and others, including the defendant, went to the rear of the car. Lieutenant Colman met the defendant at the rear of the car and arrested him, holding him with a nightstick placed across his body and grasped at either end. Thus restrained, the defendant offered no immediate resistance. By this time the second carload of officers had arrived at the scene. Lieutenant Colman started walking Waller back to the car and sought to turn him over to Sergeant Mein so that he, Colman, could turn his attention to other individuals of the group. As soon as Lieutenant Colman released defendant, a scuffle broke out and the defendant became very vocal again, shouting obscenities in a loud voice and attracting other onlookers to the area. Officer Hanson assisted Sergeant Mein who was struggling with the defendant. The defendant continued cursing, yelling, spitting on the officers and yelling 'White M_ _ F_ _' and similar obscenities. At this point, the defendant's sister broke from the crowd and grabbed one of the officers from behind. She was yelling various obscenities at the officers and was subsequently arrested. While she was struggling with the officers who were arresting the defendant, another member of defendant's group, one Fred Hamilton, broke from the crowd and grabbed Officer Hanson. During the struggle Officer Hanson's gun was unstrapped and pulled half-way from the holster before Officer Trappman came to his assistance and arrested Hamilton.
By this time quite a crowd had collected and, as the officers left the scene with their prisoners, rocks and bottles were thrown by the crowd that had gathered. During the ride back to the police station, defendant became violent and kicked Officer Murphy, spit in his face and cursed him with various obscenities.
Defendant was charged with (1) simple assault in violation of City Ordinance 25.4; (2) obscene language in violation of City Ordinance 25.42; and (3) verbal abuse of a police officer in violation of City Ordinance 25.43.1. At the trial, defendant admitted yelling 'Pig' at the police officers through the megaphone, but only after he was arrested. He denied resisting arrest, claimed he was subjected to police brutality and contended that the arrest was illegal because at the time of the arrest he was not informed of the offense against him. His counsel contended at the trial that because of defendant's reputation as a known trouble-maker, the police were out to get him and that the increased police activity in the area, including surveillance of the JOMO headquarters constituted 'provocation' for the incident. It was argued that the return of the police officers to the scene where the group was yelling 'Pig' constituted entrapment, since the police thereby brought themselves 'into the ambit of those words.' Defendant also contended that the Ordinance proscribing verbal abuse of a police officer was unconstitutionally vague.
Defendant was tried in the Municipal Court before the Honorable Henry Esteva and found guilty on all three charges. He was sentenced to ninety (90) days' imprisonment on each of the three charges. On appeal, the Circuit Court affirmed the conviction.
Defendant sought certiorari in the District Court and was successful in having Ordinance Section 25.43.1 declared unconstitutionally overbroad and specifically the language 'verbal abuse' void. The district Court directed discharge of the defendant on the charge of verbal abuse and ordered a new trial on the other two convictions. The United States Supreme Court decision in Chaplinsky v. New Hampshire 2 was distinguished and the District Court found that other decisions of the United States Supreme Court commanded a declaration of the Ordinance's invalidity. 3
The Ordinance in question in the instant case is Ordinance 25.43.1 of the City of St. Petersburg, which provides as follows:
'It shall be unlawful for any person to challenge to fight, assault, strike, verbally abuse or make derogatory remarks to a police officer in the performance of his duties.'
A similar ordinance was held valid in Nixon v. State, 4 thereby creating jurisdictional conflict.
The District Court in the instant case correctly stated the test for constitutionality of a statute or ordinance of the type here involved as whether the language 'is sufficiently precise to describe an offense so as to give fair warning to the citizen that certain speech is prohibited.' 5
The rule is stated by the United States Supreme Court in U.S. v. National Dairy Products, as follows: 6
'Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.'
In a leading case, Chaplinsky v. New Hampshire, 7 the United States Supreme Court upheld the following ordinance against the charge of vagueness:
'No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.'
Chaplinsky, a member of a sect known as Jehovah's Witnesses, was distributing the literature of his sect on a busy street in the City of Rochester and denouncing all religion as a 'racket.' The crowd was getting restless. A traffic officer on duty at the intersection started with Chaplinsky for the police station. On the way they met a Marshal who had been advised that a riot was imminent and was hurrying to the scene. On meeting the Marshal, Chaplinsky addressed the following words to him:
"You are a God damned racketeer' and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists'.. . .'
Chaplinsky was tried and convicted of violation of the Ordinance. His conviction was affirmed by the state courts and by the United States Supreme Court, stating: 8
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