Hoffman, In re, Cr. 11026

Citation434 P.2d 353,67 Cal.2d 845,64 Cal.Rptr. 97
Decision Date11 December 1967
Docket NumberCr. 11026
CourtUnited States State Supreme Court (California)
Parties, 434 P.2d 353 In re Frederick A. HOFFMAN and Clyde Carson on Habeas Corpus.

A. L. Wirin, Fred Okrand, Laurence R. Sperber and Michael Hannon, Los Angeles, for petitioners.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and Michael T. Sauer, Deputy City Atty., for respondent.

TRAYNOR, Chief Justice.

Petitioners were convicted in the Los Angeles Municipal Court of violating a city ordinance 1 restricting the right to be Union Station in Los Angeles is owned by three railroad companies, the Southern Pacific, the Union Pacific, and the Santa Fe. It is a spacious area open to the community as a center for rail transportation. It also houses a restaurant, a snack bar, a cocktail lounge, and a magazine stand. Not only passengers but friends and relatives of passengers may freely enter and use the facilities of the waiting room. Entry is also free to those who seek food or drink or magazines and newspapers. There are signs posted around the station stating: 'PRIVATE PROPERTY--PERMISSION TO PASS OVER REVOCABLE AT ANY TIME.'

[434 P.2d 354] in a railroad station. The Appellate [67 Cal.2d 847] Department of the Superior Court affirmed the convictions and refused to certify the case to the Court of Appeal. (Rule 62(a), Cal. Rules of Court.) Petitioners seek a writ of habeas corpus on the ground that the ordinance unconstitutionally abridges their right of free speech.

About 5 o'clock in the afternoon of September 5, 1966, a group of about 15 persons, including petitioners, entered the station to distribute leaflets protesting United States action in Vietnam and the impending court martial of three soldiers at Fort Hood, Texas, who had refused to go to Vietnam. They hoped to communicate with soldiers who would be in the station on their return to Camp Pendleton after the Labor Day weekend. They went to the station solely to distribute leaflets and discuss their position with persons in the area. They circulated about the main entrance, the lobby, and the south patio of the station. The city concedes that they did not impede the flow of traffic to or from the station or interfere with the purchase or sale of tickets or the conduct of business by the restaurant, bar, or magazine and newspaper stand located on the premises. Although their leaflets littered the floors and seats of the lobby, the littering was by those to whom the leaflets were given.

Officer Bakken, a special officer at Union Station, observed petitioners' activities and stopped them outside the station master's office in the south patio. After learning that they had no business with the railroad, he informed them that they were on private property engaged in activities prohibited by station rules. On two occasions Officer Bakken told petitioners that they would have to leave if they did not stop distributing leaflets and talking to people. He had similar conversations with other members of the group. All refused to leave, and Los Angeles police officers summoned by Officer Bakken arrested them. The trial court acquitted six of them, 2 and found petitioners guilty on the ground that they were in the station without any business with a carrier and hence were loitering within the meaning of the ordinance.

The ordinance defines the law of trespass applicable to this situation. Trespass laws punish presence on property unauthorized by the possessor thereof and conclusively presume injury from that presence. The city's contention is essentially that the railroads have consented to open their property to the general public for a limited and specific purpose only, namely, for the use of the transportation facilities offered, that The theory advanced by the city has been unsuccessfully urged to justify prohibition of First Amendment activities in the public streets and parks. The city seeks to distinguish streets and parks on the ground that 'From time immemorial, streets, sidewalks and parks have been held in trust for the use of the public and have been used for purposes of assembly, communicating thoughts and discussing public questions.' (Paraphrasing Hague v. C.I.O. (1939) 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423.)

[434 P.2d 355] petitioners admittedly came onto the property for other purposes, and that the railroads may therefore demand their removal and arrest and prosecution for trespass. 3

At one time it was thought that a municipality could prohibit First Amendment activities in streets and parks on the ground that they constituted an unauthorized use of such facilities. (Davis v. Commonwealth of Massachusetts (1897) 167 U.S. 43, 17 S.Ct. 731, 42 L.Ed. 71.) The 'time immemorial' from which the streets and parks have been required to be held open for First Amendment activities dates from 1939, when Hague v. C.I.O., supra, was decided. 4 In a series of cases following Hague v. C.I.O., the Supreme Court determined that a regulation of First Amendment activities in streets and parks must be supported by a valid municipal interest that cannot be protected by different or more narrow means. Such activities can be regulated only to the extent necessary to prevent interference with the municipality's interest in protecting the public health, safety, or order or in assuring the efficient and orderly use of streets and parks for their primary purposes. (See e.g., Cox v. State of Louisiana (1965) 379 U.S. 536, 554--555, 85 S.Ct. 453, 13 L.Ed.2d 471; Lovell v. City of Griffin (1938) 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Cantwell v. State v. Connecticut (1940) 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Largent v. State of Texas (1943) 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873; Staub v. City of Baxley (1958) 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302; Schneider v. State of New Jersey (1939) 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Jamison v. State of Texas (1943) 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869; Niemotko v. State of Maryland (1950) 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280; compare, e.g., Chaplinsky v. State of New Hampshire (1942) 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, with Cantwell v. State of Connecticut, supra, and Kunz v. People of State of New York (1951) 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Feiner v. People of State of New The primary uses of municipal property can be amply protected by ordinances that prohibit activities that interfere with those uses. Similarly, the primary uses of railway stations can be amply protected by ordinances prohibiting activities that interfere with those uses. In neither case can First Amendment activities be prohibited solely because the property involved is not maintained primarily as a forum for such activities.

[434 P.2d 356] York (1951) 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267, with Cox v. State of Louisiana, supra; Kovacs [67 Cal.2d 850] v. Cooper (1949) 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513, with Saia v. People of State of New York (1948) 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574, and Wollam v. City of Palm Springs (1963) 59 Cal.2d 276, 29 Cal.Rptr. 1, 379 P.2d 481. See, generally, Niemotko v. State of Maryland, supra, 340 U.S. 268, 275--283, 71 S.Ct. 325.) This rule applies whether the owner of the street is a governmental body or a private one. (Tucker v. State of Texas (1946) 326 U.S. 517, 524, 66 S.Ct. 274, 90 L.Ed. 274; Marsh v. State of Alabama (1946) 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265.) If the state curtails First Amendment freedoms to protect an interest that is nonexistent, whether claimed on behalf of the government or on behalf of a private individual, it violates the First and Fourteenth Amendments. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 265, 84 S.Ct. 710, 11 L.Ed.2d 686; Marsh v. State of Alabama, supra; Tucker v. State of Texas, supra.)

In Brown v. State of Louisiana (1966) 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637, the defendants were Negroes who had entered the local segregated public library, asked for a book and were told the library did not have it. The librarian and a police officer then requested the defendants to leave but they refused to do so. No one else was in the library at the time. The defendants were not disorderly, but neither were they using the library facilities for their intended purpose. The act of sitting in the library was a protest against the library's policy of segregation. The defendants were not noisy and did not interfere with the functioning of the library.

The majority of the Supreme Court reversed a conviction for breach of the peace on the ground that since there was no evidence of any disorder or disturbance that interfered with the use of the library for its intended purpose, the officer and the librarian had no right to request the defendants to leave. Accordingly, the defendants' refusal to leave could not constitutionally be punished as a breach of the peace.

According to the dissenters, however, to constitute a breach of the peace, the activity in question did not have to interfere with the peace, order, or safety of the public or with the primary use of the library facility. In their view, the state could treat any unauthorized use of property maintained to perform a specific function as a breach of the peace. The majority's test was whether the defendants' conduct interfered with the use of the library; the minority's test was whether that conduct was a library use.

Similarly in the present case, the test is not whether petitioners' use of the station was a railway use but whether it interfered with that use. No interest of the city in the functioning of the station as a transportation terminal was infringed. Petitioners' conduct was also unassailable under statutes aimed at protecting the city's interest in preserving good order, cleanliness, public health, and safety. Nor did their presence violate any legitimate interest of the railroads, their patrons, or employees....

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