Comstock v. United States, 22631.

• Citation: 419 F.2d 1128
• Decision Date: 15 January 1970
• Docket Number: No. 22631.,22631.
• Parties: Peter F. COMSTOCK; Ann Fetter; Sue D. Gottfried; Irwin R. Hogenauer and Selma Waldman, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

419 F.2d 1128 (1969)

Peter F. COMSTOCK; Ann Fetter; Sue D. Gottfried; Irwin R. Hogenauer and Selma Waldman, Appellants, v. UNITED STATES of America, Appellee.

No. 22631.

United States Court of Appeals Ninth Circuit.

December 9, 1969.

Rehearings Denied January 15, 1970 and January 19, 1970.

Ronald Meltzer (argued), Francis Hoague, Michael Rosen, Seattle, Wash., for appellants.

John M. Darrah (argued), Asst. U. S. Atty., Eugene G. Cushing, Stan Pitkin, U. S. Atty., Seattle, Wash., for appellee.

Before BARNES and MERRILL, Circuit Judges, and McNICHOLS,^* District Judge.

MERRILL, Circuit Judge.

This appeal is taken from conviction under the Assimilative Crimes Act, 18 U. S.C. §§ 7, 13, of the crime of unlawful assembly as defined by Washington state law, R.C.W. 9.27.060(2). Appellants attack the Washington statute as unconstitutional.

Appellants do not contend that the conduct with which they are charged was constitutionally protected.¹ Whether Washington might, by a properly drawn statute, have made this conduct criminal is not in issue. Appellants contend that the statute under which they were charged and convicted is unconstitutional upon its face as overbroad. Despite its ancient origin² Washington state courts have not yet been called upon to construe it.

As applied to this case the relevant portion of the statute reads:

"Whenever three or more persons shall assemble with intention * * * to carry out any purpose in such manner as to disturb the public peace * * * such an assembly is unlawful, and every person participating therein by his presence * * * shall be guilty of a gross misdemeanor."

Appellants' attack on the statute is leveled at its reliance on disturbance of the public peace as an element of the offense. They contend that in the absence of express language or an authoritative construction so limiting the phrase as to exclude constitutionally protected activities, "disturbance of the public peace" is so broad that it has a serious "chilling effect" on the exercise of First Amendment rights.

In our judgment the authorities cited by appellants, while in some instances using language suggesting such a rule, have not yet made it clear that the true rule goes this far.

Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), and Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) were cases involving state prosecution under state statutes or common law doctrines declaring breach or disturbance of the peace to be a crime. In each instance the conduct of the defendants was held to be constitutionally protected and conviction of the defendants under the statute demonstrated that the statute as construed by the state was overbroad. In Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L. Ed. 1131 (1949), the construction of the statute by the state trial judge in his charge to the jury was so broad as to include constitutionally protected activity.

These cases, then, did not strike down a statute solely because of the breadth of language used. It was the statute as applied and as authoritatively construed that was held to be overbroad. Conversely in Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed. 2d 176 (1965), a similar statute was saved because it had been narrowly construed by the state supreme court to exclude constitutionally protected activity.

In a federal case under the Assimilative Crimes Act, where the state statute has not been construed by the state courts, the question facing the federal court is whether the statute, absent a limiting state construction, is too broad on its face. This was the problem faced in United States v. Woodard, 376 F.2d 136 (7th Cir. 1967). The court there held that it would not presume that state courts, faced with the alternatives of broad or narrow construction of a statute making "disorderly conduct" a crime, would so construe the statute as to include constitutionally protected activities. Since the conduct of the defendants (there as here) was not constitutionally protected, the conviction was upheld.

We regard Woodard as distinguishable. Here it is not disorderly conduct or disturbance of the peace that was made criminal. As we have noted it may be said that such language does not upon its face intrude upon the First Amendment; that it is only through overbroad construction and application that intrusion occurs. Here, however, it is assembly — a subject of the First Amendment — that under specified circumstances is made unlawful.³

In our judgment Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966), controls under these circumstances. There the state crime was common law criminal libel. The state court charged that it included any writing calculated to create disturbances of the peace. The common law doctrine as so applied was struck down. As we read the Court's holding it is that when criminal restraints are directly imposed upon activity with which the First Amendment is concerned that which is made unlawful must be so defined as to exclude constitutionally protected areas expressly and unambiguously; that "disturbance of the public peace," being imprecise, cannot serve to define, in terms of crime, an exception to the rights to speak, write or assemble.

Mr. Justice Harlan, concurring in Garner v. Louisiana, 368 U.S. 157, 202-203, 82 S.Ct. 248, 272, 7 L.Ed.2d 207 (1961), while concerned with freedom of expression under the Fourteenth Amendment, deals with this principle. He states:

"But when a State seeks to subject to criminal sanctions conduct which, except for a demonstrated paramount state interest, would be within the range of freedom of expression as assured by the Fourteenth Amendment, it cannot do so by means of a general and all-inclusive breach of the peace prohibition. It must bring the activity sought to be proscribed within the ambit of a statute or clause `narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State.\' * * *

These limitations exist not because control of such activity is beyond the power of the State, but because sound constitutional principles demand of the state legislature that it focus on the nature of the otherwise `protected\' conduct it is prohibiting, and that it then make a legislative judgment as to whether that conduct presents so clear and present a danger to the welfare of the community that it may legitimately be criminally proscribed.

Accordingly, at least until Washington has placed a suitably restrictive construction upon it, we hold this statute to be constitutionally infirm as a basis for federal prosecution under the Assimilative Crimes Act. Cf. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

Appellant Hogenauer challenges his summary conviction of contempt of court for conduct immediately following the court's rendition of judgment. The following occurred:

Adjournment of court was announced. Hogenauer did not rise. He was admonished to rise. He refused. He was directed by the judge to approach the bench. He refused. When the Marshal took him by the arm and forceably led him to the bench he went limp and as the court addressed him lay prostrate on the floor. At a subsequent court session the judge sentenced him to 15 days for contempt of court.

18 U.S.C. § 401 provides that the court may punish as contempt: "Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice."

Rule 42(a), F.R.Cr.P. provides: "A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court."

Hogenauer contends that his conduct did not amount to obstruction of justice and that the circumstances were not such as to justify summary punishment. In both respects we disagree. United States ex rel. Robson v. Malone, 412 F.2d 848 (7th Cir. 1969).

Judgment of conviction of unlawful assembly is reversed.

Judgment of conviction of contempt of court is affirmed.

BARNES, Circuit Judge (concurring in part and dissenting in part).

I agree with that part of the majority opinion finding appellant Hogenauer guilty of contempt, but, as to the first portion of the opinion finding the Washington breach of the peace statute unconstitutional on its face, I must respectfully dissent. I summarize two reasons for my disagreement with the majority on the issue of constitutionality:

First, I cannot agree that the case of Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469, stands for the broad principle that "`disturbance of the public peace,' being imprecise, cannot serve to define, in terms of crime, an exception to the rights to speak, write or assemble." (Maj. op. p. 1130) Second, I cannot agree with the suggestion of the majority in footnote 3 of the opinion that:

"What is made unlawful is not the overt act of disturbance but the presence of a person at an unlawful assembly. Further it is not the fact that a disturbance has been created by those assembled that renders the assembly unlawful but the intention, fulfilled or unfulfilled, of three or more of the assembled persons. Still further, despite these overtones of conspiracy, the crime is not limited to those entertaining the disturbing intentions. It apparently attaches to every person present regardless of his own intent or knowledge of the intent of others." (Citation omitted)

In Ashton v. Kentucky, supra, the Supreme Court held:

"We agree with the dissenters in the Court of Appeals who stated that: `* * * since the English common law of criminal libel is inconsistent with constitutional provisions, and since no Kentucky case has redefined the crime in understandable terms, and since the law must be made on a case to case basis,

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