People v. Purifoy, Docket No. 9498

• Decision Date: 22 June 1971
• Docket Number: Docket No. 9498,No. 1,1
• Citation: 191 N.W.2d 63,34 Mich.App. 318
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mack PURIFOY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 63

191 N.W.2d 63

34 Mich.App. 318

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mack PURIFOY, Defendant-Appellant.

Docket No. 9498.

Court of Appeals of Michigan, Division No. 1.

June 22, 1971.

Rehearing Denied Aug. 2, 1971.

Leave to Appeal Denied Oct. 19, 1971.

Released for Publication Nov. 3, 1971.

Hugh M. Davis, Jr., Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Patricia J., Boyle, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and V. J. BRENNAN and DANHOF, JJ.

DESINSKI, Chief Judge.

Defendant, Mack Purifoy, was arrested after he was seen throwing a rock at police officers on the scene of a public disorder and was convicted by a judge, sitting without a jury, of making or exciting a disturbance or contention. M.C.L.A. § 750.170 (Stat.Ann.1962 Rev. § 28.367). He appeals as of right claiming the statute under which he was convicted is unconstitutionally vague and overbroad.

The distinction between a challenge of vagueness and a challenge of overbreadth is well stated in Landry v. Daley (N.D.Ill.1968), 280 F.Supp. 938, 951:

'The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise judge and jury of standards for the determination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional.

'The concept of overbreadth, on the other hand, rests on principles of substantive due process which forbid the prohibitions of certain individual freedoms. The primary issue is not reasonable notice or adequate standards, although these issues may be involved. Rather the issue is whether the language of the statute, given its normal meaning, is so broad that its sanctions may apply to conduct protected by the Constitution.'

It is in this context that we review defendant's claim of error.

The statute provides:

'Any person who shall make or excite any disturbance or contention in any tavern, store or grocery, manufacturing establishment or any other business place or in any street, lane, alley, highway, public building, grounds or park, or at any election or other public meeting where citizens are peaceably and lawfully assembled, shall be guilty of a misdemeanor.' M.C.L.A. § 750.170 (Stat.Ann.1962 Rev. § 28.367).

The claim that the statute in question is overly broad was heard in Detroit Metropolitan Welfare Rights Organization v. Cahalan, Civil No. 34006 (E.D.Mich., May 29, 1970), an unpublished opinion of a special three-judge panel in Federal Court, where it was held that the words 'excite any contention' must be read out of the statute. The basis for the decision was the holding in Bachellar v. Maryland (1970), 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570, that public expression of ideas may not be prohibited merely because the ideas are themselves offensive to others. Accordingly, the three-judge panel reasoned that since peaceful protest activity which excites strong or possibly violent opposition from others may be proscribed by use of the words 'excite any contention', the excising was necessary to save the statute.

In the case at bar, the trial judge rendered a general verdict of guilty without specifying whether defendant was involved in a 'disturbance' or a 'contention'. Since the conviction may have rested upon an unconstitutional basis, we are constrained to reverse and remand for new trial. Bachellar v. Maryland, Supra. However, excising of the words 'excite any contention' from the statute and remanding for new trial does not settle the claim of vagueness of the balance of the statute. ¹

The three-judge panel in Detroit Metropolitan Welfare Rights Organization v. Cahalan, Supra, expressly approved of the holding in People v. Weinberg (1967), 6 Mich.App. 345, 149 N.W.2d 248, where this Court held the statute in question could properly be applied against a group of demonstrators interfering with the business of a savings and loan institution by blocking traffic in the building. The writer of this opinion also signed the opinion in People v. Weinberg, Supra, and now wishes to confess his error insofar as the definitional language there employed implies that something less than a threat of violence which merely interferes with and causes irritation of others may be the sole basis for conviction under the statute. Recent decisions from other courts compel me to reexamine my prior interpretation of the statute.

It is well recognized that a state has the power to ban violence or threats of imminent violence. Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Cantwell v. Connecticut (1940), 310 U.S. 296, 60 S.Ct. 900, 84 L.E. 1213. However, the attempts by various state legislatures to exercise that authority by enactment of 'breach of peace' and 'public disturbance' statutes have been less than successful. Some courts hold that statutes which employ such generic terms are permissible because of the futility of attempted enumeration of all the methods of disrupting public order that fertile minds might devise. People v. Raby (1968), 40 Ill.2d 392, 240 N.E.2d 595 ('breach of the peace'). Other courts have ruled such statutes vague on their face. City of Chester v. Elam (1962), 408 Pa. 350, 184 A.2d 257 ('disorderly conduct').

I am of the opinion that the statute which now reads, as edited by judicial interpretation, 'Any person who shall make disturbance (in any public place) shall be guilty of a misdemeanor', can be enforced. In all prosecutions under this statute the activity to be punished must be shown to present clear and present danger of riot, disorder, interference with traffic, or a threat to public safety. Chaplinsky v. New Hampshire, Supra; Cantwell v. Connecticut, Supra. The statute is concerned with intentional acts of violence or threats of the commission of acts of violence by persons having the ability of immediate execution of such threats. In re Shead (D.C. 1969), 302 F.Supp. 560. I recognize that the culpability of the offense depends upon the time, place, and circumstances of the event, and that a jury of...