Livingston v. Garmire

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: BROWN, , and WISDOM and MORGAN, Circuit
• Citation: Livingston v. Garmire, 437 F.2d 1050 (5th Cir. 1971)
• Decision Date: 10 May 1971
• Docket Number: No. 29463.,29463.
• Parties: Marvin LIVINGSTON et al., Plaintiffs-Appellees, v. Bernard GARMIRE, etc., et al., Defendants-Appellants.

437 F.2d 1050 (1971)

Marvin LIVINGSTON et al., Plaintiffs-Appellees, v. Bernard GARMIRE, etc., et al., Defendants-Appellants.

No. 29463.

United States Court of Appeals, Fifth Circuit.

January 22, 1971.

Opinion Withdrawn May 10, 1971.

Alan H. Rothstein, City Atty., S. R. Sterbenz, Asst. City Atty., Miami, Fla., for defendants-appellants.

C. Michael Abbott, Donald C. Peters, Miami, Fla., for plaintiffs-appellees.

Before BROWN, Chief Judge, and WISDOM and MORGAN, Circuit Judges.

WISDOM, Circuit Judge:

This § 1983¹ case, one of the many progeny of Dombrowski² and Zwickler,³ presents the question whether the district court erred in declaring certain portions of the disorderly conduct ordinance of the City of Miami unconstitutional. We affirm the judgment of the district court.

The plaintiffs, three Negro residents of Miami, Florida, facing prosecution before the Municipal Court for disorderly conduct,⁴ brought this class action under Rule 23(b) (2), F.R.Civ.P., on their own behalf and "on behalf of all Negro citizens and other minority groups and/or other persons similarly situated, who now or in the future face prosecution by the City of Miami for disorderly conduct" under subsections (a) and (f) of § 38-10 of the Miami City Code. The defendants in this action are Bernard Garmire, the Chief of Police of the City of Miami and William Porter, the City Attorney. Federal jurisdiction is based on 28 U.S.C. § 1343(3).

The plaintiffs alleged that subsections (a) and (f) of § 38-10, the Miami disorderly conduct ordinance, were unconstitutional upon their face as contrary to the guarantees of the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Subsections (a) and (f) of the ordinance read as follows:

Any person in the city shall be deemed guilty of disorderly conduct who:

(a). Shall make, aid, countenance or assist in making any improper noise, riot, disturbance, breach of the peace or a diversion tending to a breach of the peace.

* * * * * *

(f). Uses obscene or profane language in the presence of anyone else, or any indecent, insulting or abusive language to another, or makes any threats of violence against another person.

The plaintiffs alleged that those subsections had a "chilling effect upon" and abridged their freedom of speech, denied them their right of privacy, and were palpably vague and overbroad, thus depriving them of due process of law, while giving the defendants absolute and unbridled discretion to arrest at will any person they pleased and whenever it pleased them.

Upon the plaintiffs' motion for summary judgment, the district court entered an order declaring subsection (a) unconstitutional in its entirety.⁵ See Livingston v. Garmire, S.D.Fla.1970, 308 F.Supp. 472. In a separate later opinion⁶ the court also declared unconstitutional that part of subsection (f) proscribing the use of "obscene," "profane," "indecent, insulting or abusive" language in the presence of another. The Court enjoined the defendants from enforcing those portions of the ordinance that the court had declared unconstitutional.

I.

On appeal the defendants make two basic contentions. First, they contend that the district court should not have declared subsection (a) unconstitutional in its entirety. The Miami City Code contains an elaborate provision declaring the sections, paragraphs, sentences, clauses, and phrases of the Code to be severable. See Miami City Code § 1-5. The defendants argue that the portion of subsection (a) declaring it to be unlawful to make or assist in making a riot is constitutional and should have been severed from the admittedly invalid portions of the subsection.

The district court, however, held that "the entire section, when read in context, must be stricken because that was the treatment afforded it by the Supreme Court of the United States." Livingston v. Garmire, S.D.Fla.1970, 308 F.Supp. 472, 477. By this language the court was referring to the fate of an identical provision in a Chicago disorderly conduct ordinance in Terminiello v. City of Chicago, 1949, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, and Gregory v. City of Chicago, 1969, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (concurring opinions).

In support of the district court's decision, the plaintiffs argue that all of subsection (a), including the anti-riot clause, is unconstitutional. It is of course true that the City of Miami could enact an ordinance proscribing knowing and willful participation in a riot. But, the plaintiffs argue, the ordinance that would result from our severing the anti-riot clause from the undeniably invalid portions of subsection (a) would itself be unconstitutional. In their view the anti-riot clause of subsection (a), standing alone, is impermissibly vague: nowhere is there a definition of the term "riot." Moreover, its very vagueness increases the possibility that the anti-riot clause may be overly broad, i. e., that it may infringe upon constitutionally protected activities. Seeking judicial support for their argument, the plaintiffs cite the statement of Judge Will of the Northern District of Illinois that

Nothing said here is intended to hold or imply that making or aiding or assisting to cause a riot may not be proscribed even though the actions taken consist merely in the exercise of First Amendment freedoms if the words spoken or written or the actions taken under the circumstances constitute a "clear and present danger" that a riot will result and the requisite intent to cause a riot is present.

Landry v. Daley, N.D.Ill.1968, 280 F. Supp. 968, 971⁷ (emphasis supplied). Thus, the plaintiffs point out, despite the fact that the City of Miami could enact a valid anti-riot ordinance, the ordinance for which the defendants argue in this case is not the narrow, precise ordinance envisioned by Judge Will: for example it contains no "clear and present danger" limitation on its broad scope. Compare National Mobilization Comm. To End War in Viet Nam v. Foran, 7 Cir. 1969, 411 F.2d 934 and In re Shead, N.D.Col. 1969, 302 F.Supp. 560.⁸ Neither does it limit its sanction to wilful and knowing participation in a riot. Cf. Original Fayette Co. Civic & Welfare League v. Ellington, W.D.Tenn.1970, 309 F.Supp. 89, 93-94.⁹ To affirm the decision of the district court, we need not go so far as to declare unconstitutional the residue remaining after severing the unconstitutional segments of the statute. There is another reason why the district court did not err in declaring subsection (a) unconstitutional in its entirety.

Aside from whatever doubts may exist about the constitutionality of the anti-riot clause itself, we do not think that that language can reasonably be severed from the admittedly invalid portions of the ordinance. In a fine example of the tautological tendencies that sometimes afflict legislative draftsmen, the ordinance forbids the making of any "improper noise, riot, disturbance, breach of the peace or a diversion tending to a breach of the peace." It is difficult for us to say that each of the nouns in this string has a meaning distinct from that of the others; they derive much of their meaning from their use in conjunction with each other. Indeed, the word "riot" is so inextricably intertwined with the vague and overly broad words of the subsection that it is logically impossible to sever it. See Lazarus v. Faircloth, S.D. Fla.1969, 301 F.Supp. 266, 273; Landry v. Daley, N.D.Ill.1968, 280 F.Supp. 968, 970; cf. Dombrowski v. Pfister, 1965, 380 U.S. 479, 494, 85 S.Ct. 1116, 14 L. Ed.2d 22, 33. Therefore, we conclude that despite the severability section of the Miami City Code, the district court did not err in declaring subsection (a) of § 38-10 unconstitutional in its entirety.

II.

Second, the defendants contend that the district court erred in declaring part of subsection (f) unconstitutional. Specifically, they argue that under the rule of Chaplinsky v. New Hampshire, 1942, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, Miami may proscribe the use of obscene, profane, or abusive speech, whether that speech is privately or publicly uttered. In the alternative, the defendants argue that subsection (f) should be held unconstitutional only to the extent that it inhibits private utterances.

In its order granting the plaintiffs' motion for summary judgment, the district court held that the language in subsection (f) prohibiting the use of "obscene or profane language in the presence of anyone else, or any indecent, insulting or abusive language to another" denied the plaintiffs "their right of privacy, a right which in recent years has reached constitutional proportion." See Stanley v. Georgia, 1969, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542. We agree with the district court that subsection (f) is constitutionally defective because it makes no distinction between public and purely private speech. But we decline to hold the subsection unconstitutional only to the extent that it prohibits private utterances. We have concluded that even as applied to public speech subsection (f) is unconstitutionally vague and overbroad.

The void-for-vagueness doctrine¹⁰ is essentially a requirement that penal statutes meet certain standards of specificity. The constitutional requirement of certainty in legislation derives from the due process clause of the Fifth and Fourteenth Amendments.

A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.

Giaccio v. Pennsylvania, 1966, 382 U.S. 399, 402-403, 86 S.Ct. 518, 520-521, 15 L.Ed.2d 447, 450. See also Wright v. City of Montgomery, 5 Cir. 1969, 406 F. 2d 867, 872; Landry v. Daley, N.D.Ill. 1968, 280 F.Supp. 938, 951. The classic due process test is thus whether the statute either...