People on Complaint of Howell v. Knight

• Citation: 35 Misc.2d 216,228 N.Y.S.2d 981
• Parties: The PEOPLE of the State of New York on the Complaint of Patrolman Grover D. HOWELL v. Arthur KNIGHT, Defendant (two cases). Magistrates' Court of City of New York, Borough of Manhattan Arrest Court
• Decision Date: 21 May 1962
• Court: New York Magistrate Court

Page 981

228 N.Y.S.2d 981

35 Misc.2d 216

The PEOPLE of the State of New York on the Complaint of

Patrolman Grover D. HOWELL v. Arthur KNIGHT, Defendant (two cases).

Magistrates' Court of City of New York, Borough of Manhattan

Arrest Court.

May 21, 1962.

John J. Maguire, Legal Bureau--Police Department, for the people.

Kunstler & Kunstler, New York City (William M. Kunstler, New York City, of counsel), for defendant.

Rowland Watts, New York City, for American Civil Liberties Union.

WALTER J. BAYER, City Magistrate.

On Saturday, March 3, 1962, at about 5:00 P.M., the defendant joined with many others at Duffy Square, 46th and 47th Streets between Broadway and 7th Avenue, to hold a rally protesting the resumption by the United States of explosions of nuclear weapons in the atmosphere. This demonstration was intended to be a 'silent vigil'--and publicized as such. Prior notice of this meeting was given to the Police Department.

The Department in preparation for the demonstration placed barriers along Duffy Square and detoured 7th Avenue traffic onto Broadway. A large number of patrolmen, mounted as well as on foot, were assigned to the area to maintain proper order and to give appropriate protection from traffic hazards to the participants in the demonstration.

Not only were there people (estimated as numbering two to three thousand) gathered for the rally on Duffy Square, but there were large multitudes of spectators and pedestrians. The Court is well aware that on Saturday afternoon, Times Square of which Duffy Square is a part, is a very busy, highly travelled area.

At about 5:30 P.M., the demonstration and rally were over. The Police Department thereupon permitted vehicular traffic to move and endeavored to keep people on the sidewalks. However, many participants, among them the defendant, instead of leaving the area, took up positions in the 7th Avenue roadway, shouting slogans such as 'Ban The Bomb', 'Our Children Want Good Milk', 'No More Testing', 'Don't--Let's Not Become Another Russia. Peace At All Costs'.

Other participants (Among them Itkin and Supernaw, defendants in a companion case (Dockets 2686-2687, and Dockets 2688-2689) decided simultaneously herewith) sat down in groups forming semi-circles in the roadway at the corner of Broadway and 46th Street. As part of the publicized 'silent vigil' technique, they simply stared blankly ahead, not moving and not saying a word.

Manifestly, the motive and purpose of this conduct, as of the rally itself, was to focus attention of the public and press in the most dramatic manner, upon the views opposing the expressed intention of the President to order resumption of nuclear weapon tests.

But, the consequences of this conduct were that the demonstrators as well as the onlookers did not leave the area, that normal traffic, both pedestrian and vehicular, could not be restored by the police, that what started as a 'silent vigil' degenerated into a mob whose anti-testing slogans were replaced by police baiting epithets, and whose 'silent vigil' technique was replaced by a wilful obstruction of vehicular traffic--all to induce publicity, not by the merits of their cause, but by the violence of their actions.

The defendant Knight, as he was standing in a group in the roadway fifteen feet from the curb yelling slogans, was approached by Patrolman Grover D. Howell. He asked the group to go back on the sidewalk; all complied except Knight. Patrolman Howell 'cautioned him again to move back on the sidewalk'. The defendant did not move, but replied that he had a right to stand in the roadway shouting anti-testing slogans. Patrolman Howell for the third time asked the defendant to move back, as he was stopping traffic. The defendant again did not move. Patrolman Howell then said to the defendant, 'you are under arrest. I am taking you in.' The officer put his hand on defendant's shoulder, defendant pulled it off and ran into a group upon the sidewalk. The officer was knocked down by others, lost a glove, was hit on the shoulder, but nevertheless went into the crowd to apprehend the defendant. Thereupon, the defendant lay down on the sidewalk and would not move. It was necessary to carry the defendant into the police wagon.

As for Itkin and Supernaw, they too, were directed twice by the arresting officer to get up and move on. They continued sitting mute. The officer then placed them under arrest. As he proceeded to take a hold of Supernaw, Itkin locked arms with Supernaw. It was necessary for the arresting officer, together with fellow officers to pry them apart and to carry them to the police wagon. The defendant Knight and in the companion case, Itkin and Supernaw were charged with disorderly conduct ¹ and with violating SECTION 1851, PENAL LAW² (Resisting public officer in the discharge of his duty). ³

That Section 722 (disorderly conduct) has been violated is not strongly contested for the evidence establishes that the defendant here and the defendants in the companion case violated this section.

However, it is urged that the charge under Penal Law, Section 1851 should be dismissed because basic concepts of fair play would be violated by holding the defendants to answer not only for their disorderly conduct but also for resisting their arrest and further, that only in totalitarian states would charges lie under these circumstances. The Court is told that cooperation by an arrested person with the police officer is not mandatory and to require it under threat of a penalty in addition to the one for which the arrest is made, offends 'our sense of justice.'

Our Penal Statutes have endeavored to protect duly constituted officers in the lawful exercise of their duties from resistance to arrest by persons who have violated the law. To make an arrest, the arresting officer must take the person into custody by actual restraint of the person of by his submission to the custody of the officer (Code of Criminal Procedure, Secs. 167, 171). An arresting officer is specifically given authority to use all necessary means to effect an arrest if a defendant either flee or forcibly resist (CCP Sec. 174). Thus, Penal Law, Section 242(5) imposes criminal penalties for assault upon an officer to prevent or resist lawful apprehension or detention of the arrested person; Sections 1824 and 1825 impose criminal penalties for attempting by means of any threat or violence to deter or prevent, or for knowingly resisting by force or violence, an officer in the performance of his duty.

It was the duty to be discharged by the arresting officers here to take Knight, Itkin and Supernaw into custody for the crime committed in their presence. Had they assaulted the officers or attempted so to do or threatened them, there would be no question of the application of the appropriate penal statutes in addition to Section 722, the violation of which precipitated their arrest.

Amazing indeed, is the claim that holding these defendants to answer the charge of resisting an officer in the performance of his duty would offend the sense of justice which prevails in our democracy. The 14th Amendment to the Constitution assures to these defendants important 'Blessings of Liberty' (Preamble, Constitution of the United States). Right of assembly and freedom of speech are cornerstones of these liberties.

'* * * The genius of democracy is its willingness to garner wisdom from the total brain-power of the community. Uncommunicated ideas serve no social, and little, if any, private purpose. Without freedom to communicate there is small incentive or stimulation for thought. The most subtle of punishments is solitary confinement. The imprisoned mind decays. For these reasons freedom of speech, press, and assembly are the foundations of democracy, the tools of society's thinking process.' Justices Black and Frankfurter: Conflict in the Court--Mendelson, Univ. of Chic. Press, 1961.

Indeed, the police action here, unlike police action in other lands was not to frustrate, diminish or destroy the free exercise of these 'Blessings of Liberty'. It was specifically to preserve and to ensure non-interference with these freedoms. ⁴ But, the defendants took it upon themselves to go beyond the proper exercise of the right of assembly and the right of freedom of speech, and in their fashion for the purpose of attracting public attention and making press headlines, engaged in conduct which cannot be condoned or justified.

Constitutional immunity does not protect speech which incites an immediate breach of the peace; no public interest is served in permitting that type of speech. Protecting freedom of speech in all cases depends upon the circumstances of the occasion and must be considered in the scale of values serving the public interest. (Concurring opinion, Mr. Justice Frankfurter, Dennis v. United States, 341 U.S. 494, 544, 71 S.Ct. 857, 95 L.Ed. 1137).

In Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267, a conviction on a charge of disorderly conduct was overturned as an invasion of the right to speak. The Supreme Court did not hesitate to examine the evidence and to emphasize:

'* * * at the time of the arrest of each of these appellants, there was no evidence of disorder, threats of violence or riot. There was no indication that the appellants conducted themselves in a manner which could be considered as detrimental to the public peace or order. * * *' (Niemotko v. Maryland, supra at p. 271, 71 S .Ct. at p. 327, 95 L.Ed. p. 270; see particularly op. Frankfurter, J . '* * * Legislatures, local authorities, and the courts have for years grappled with claims of the right to disseminate ideas in public places as against claims of an effective power in government to keep the peace and to protect other interests of a civilized community. * * *' at p. 274, of 340 U.S., 71 S.Ct. at p. 329, 95 L.Ed. 267, 271).

Comparison between two cases originating in New York, (Kunz v. New York, 340...