O'Leary v. Com.

• Decision Date: 09 May 1969
• Parties: Dan Sheridan O'LEARY, III, et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 150

441 S.W.2d 150

Dan Sheridan O'LEARY, III, et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 9, 1969.

Roger B. Sledd, Robert Allen Sedler, Lexington, for appellants.

John B. Breckinridge, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.

PALMORE, Judge.

This is an appeal from a conviction for breach of the peace, KRS 437.010, entered by the Fayette Circuit Court on February 6, 1968.

On November 6, 1967, the Defense Intelligence Agency (D.I.A.) and other prospective employers recruiting employes from among the student body of the University of Kentucky were holding interviews on the second floor of the Old Agricultural Building in the Placement Service hallway. The appellants and other regularly enrolled students of the university undertook to protest against D. I. A.'s presence on the university campus.

In the morning Associate Dean of Students Jack Hall met with the group of student protestors and established certain ground rules, which were: (1) peaceful picketing would be permitted; (2) noise would have to be maintained at a level where all could operate; and (3) access would have to be available to the people going to Placement Service rooms.

Between 9:30 A.M. and 1:00 P.M., during which time one or more of its number were passing out leaflets, the protesting group increased from some five students to approximately 17 students and five members of the press. Between 1:00 and 1:30 P.M., after conferring with the interviewing representatives, Dean Hall determined that 'we were unable to continue the operation of the Placement Service with any amount of normality' and asked the students to move to the public lobby area on the first floor of the building or outside the building. At this time all of the students and press representatives left the second floor with the exception of the four appellants.

The appellants were standing in the entrance to the alcove which led to three rooms, two of which were to be used at 1:30 P.M. by the D.I.A. They refused a second request to leave and, instead, moved inside the alcove and sat down on the floor, 'blocking the doorways to the two rooms that were to be used at 1:30' by D.I.A. At that point Dean Hall called the campus police, who came to the area and again asked the appellants to leave, at the same time advising them that if they did not leave they would be arrested and charged with breach of the peace. When the appellants still refused to leave they were arrested by the campus police and physically carried down the stairs and out of the building into the campus police cruiser. The appellants did not offer any resistance except that they declined to move under their own power, thus requiring the arresting officers to transport them bodily from the premises.

During the time they were present in the alcove they did not raise their voices in a loud or boisterous manner, use profanity, or physically attack anyone and did not directly prevent anyone from entering any of the rooms. This was equally true of their conduct throughout the day. For a time in the morning appellant Lewis lay prone across a doorway in the alcove, thereby forcing people on several occasions to step over her, but this tactic did not actually succeed in preventing anyone from entering the area. At one point in the morning appellant Woock raised his voice in a discussion, but he lowered it following an admonition by Dean Hall. He also moved when the dean told him that he was blocking the alcove area. In the afternoon, before the dean ordered the students to leave the second floor, a secretary sought to enter the alcove and some students, including appellants Woock and Lewis, were blocking her, but after being requested to do so they let her pass. Their 'interest was not in blocking her,' so they stated, 'but in blocking the Defense Intelligence Agency'.

After conviction of the appellants in the Lexington Police Court for breach of the peace an appeal was taken to Fayette Circuit Court. A motion to dismiss based on the unconstitutionality of KRS 437.010 under the First and Fourteenth Amendments to the Constitution of the United States and sections 1 and 8 of the Constitution of Kentucky was overruled, and the case proceeded to trial before a jury. At the conclusion of all the evidence appellants moved for a directed verdict, which also was denied. The jury returned a verdict of guilty and fixed the punishment of each appellant at a fine of $75. Judgment was entered pursuant to the verdict.

The crucial instructions given by the trial court to the jury were as follows:

'Instruction No. 1

'If the jury believe from the evidence in this case beyond a reasonable doubt that the defendants, Kristina Lewis, Dan Sheridan O'Leary, William Murrell and Rodger A. Woock, in Fayette County, Kentucky, and within 12 months next before the issuance of the warrant herein, did wilfully and intentionally commit a breach of the peace by interfering with the ordinary and normal functions of the Placement Service on the campus of the University of Kentucky by blocking the entrance to the Placement Service, you will find the defendants guilty as charged in the warrant, and fix their punishment at a fine of not more than $100.00 or imprisonment in the county jail for not less than five nor more than fifty days, or by both such fine and imprisonment, in your discretion.

'Instruction No. 2

'A breach of the peace is a violation of public order or decorum; the offense of disturbing the public peace. By 'peace' is meant the tranquility enjoyed by the citizens of the community, where good order reigns among its members.'

We do not pass on the correctness of these instructions, because they were given without objection and were not challenged by a motion for new trial. Cf. Hartsock v. Commonwealth, Ky., 382 S.W.2d 861 (1964); Stanley's Instructions to Juries, § 797 (1967 Supp.). Therefore, whether appellants could validly be convicted of breach of peace under the facts of the case must be considered in terms of the offense as defined by law vis-a-vis the instructions. And in this particular, it is our opinion that the conduct of the appellants could have amounted to a breach of peace only after their right to be present at the time and place in question had been terminated.

The appellants make two basic arguments, one of which is that the law of breach of peace in this state is void because it is unconstitutionally vague and the other is that, if not void, it cannot apply to the exercise or attempted exercise of a First Amendment right because such activities can be prohibited or regulated only by a narrowly drawn law specifically delineating the circumstances and standards under which they are not allowable.

Breach of peace is a common law offense, the punishment, for which is prescribed by statute. Delk v. Commonwealth, 166 Ky. 39, 178 S.W. 1129, 1131, L.R.A. 1916B, 1117 (1915). Appellants seem to feel that its application is confined to the types of fact-situations that have been the subject of appeals to this court, but we perceive no reason why that should be so. As in the instance of murder and other common law crimes, it may be committed in new ways if they fall within the interdict of the old principles.

'The term 'breach of peace' is generic, and includes all violations of public peace or order or acts tending to the disturbance thereof. The offense may consist of acts of public turbulence or indecorum in violation of the common peace and quiet, of an invasion of the security and protection which the law affords every citizen, or of acts such as tend to excite violent resentment.' King v. Commonwealth, 32 K.L.R. 79, 80, 105 S.W. 419 (1907). To paraphrase the last portion of this quotation, conduct that is calculated to incite violence is a breach of peace. 'It includes not only violent acts but acts and words likely to produce violence in others.' Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213 (1940). However, the literal breadth of the definition does not mean, and in this jurisdiction never has been construed to mean, that lawful and proper conduct may constitute a breach of peace just because it provokes violence or disorder. To the contrary, it was explicitly recognized in West v. Commonwealth, 208 Ky. 735, 271 S.W. 1079, 1081 (1925), that the lawful exercise of a constitutional right (the right of assembly) cannot be a breach of peace. We therefore do not feel that the law against breach of peace, as it has been thus construed in Kentucky, is so vague or overly broad in scope as to pose any threat to the rights of free speech and assembly guaranteed by the First and Fourteenth Amendments of the Constitution of the United States. Cf. Cox v. Louisiana, 379 U.S. 536, 551, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). Indeed, it occurs to us that if there is any uncertainty in this context, it is not because the tried and settled law of breach of peace is vague, but because the burgeoning scope of the constitutional protections has become so.

In Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), and Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), the Supreme Court invalidated convictions for common-law breach of peace which had been held valid by state courts. The same result was reached in Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1948), and Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), with respect to statutory offenses. In each case the highest court of the state had construed the offense to include constitutionally protected conduct. Our law of breach of peace has never been so construed, and we do not so construe it now. In Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965), and, apparently, Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966), it was held that...