State v. Boles

• Decision Date: 13 December 1967
• Docket Number: No. CR,CR
• Citation: State v. Boles, 5 Conn.Cir.Ct. 22, 240 A.2d 920 (Conn. Cir. Ct. 1967)
• Court: Connecticut Circuit Court
• Parties: STATE of Connecticut v. Arnold BOLES. 6-50614.

Page 920

240 A.2d 920

5 Conn.Cir.Ct. 22

STATE of Connecticut v. Arnold BOLES.

No. CR 6-50614.

Circuit Court of Connecticut, Sixth Circuit.

Dec. 13, 1967.

Paul M. Foti, Asst. Pros. Atty., for the State.

Arthur B. LaFrance, New Haven, for defendant.

LEVISTER, Judge.

The defendant is charged by information with breach of the peace in violation of General Statutes § 53-174; violation of an executive order under special law (New Haven Spec.Laws § 21; 13 Conn.Spec. Laws 395 § 13); and disorderly conduct in violation of General Statutes § 53-175. The defendant has moved to quash or dismiss the information filed against him.

In support of his motion, the defendant has presented four propositions, all of which, if sustained, would render the information against him null and void. These four propositions are as follows: (1) The mayor of New Haven did not have the power to impose a curfew, and his attempt to do so was a nullity. (2) The curfew was void because it failed to make exceptions for reasonable and necessary activity, thereby denying personal liberty without due process of law. (3) There was inadequate notice given of the imposition of a curfew, and a conviction, therefore, would deny due process of law. (4) The curfew and the provisions under which curfew violations are being prosecuted are unconstitutionally vague and, therefore, void.

These claims will be considered in the same order in which they were presented.

I

There is no question that the power of the mayor to impose a curfew must be found either in a state statute or the charter of the city of New Haven. It is also clear that the New Haven charter does not explicitly empower the mayor to impose a curfew few. Under the provisions of § 6 of the New Haven charter, the mayor is the chief executive and administrative officer of the city. He is empowered by § 7 to have and exercise certain powers of appointment and administration, including (§ 7 (h)) 'all other executive and administrative powers conferred by the laws of the state upon any municipal chief executive, except as otherwise provided in this charter.'

Special laws confer upon the mayor the power to assume control of the police and fire forces in a time of emergency and to exercise all of their powers in enforcing the law; New Haven Spec.Laws § 20(1); 13 Conn.Spec.Laws 394 § 12(1); to exercise all the powers conferred upon the sheriffs in suppressing riots; New Haven Spec.Laws § 20(2); 13 Conn.Spec.Laws 394 § 12(2); and to request the assistance of the national guard. New Haven Spec.Laws § 20(3); 13 Conn.Spec.Laws 395 § 12(3). Hindering, obstructing, resisting or abusing the mayor in the execution of his office is punishable by fine or imprisonment. New Haven Spec.Laws § 21; 13 Conn.Spec.Laws 395 § 13.

As stated above, under the provisions of § 20(2) of the New Haven Special Laws (Conn.Spec.Laws 394 § 12 (2)), the mayor may exercise all the powers conferred upon sheriffs in suppressing riots. Thus, when the mayor does exercise authority pursuant to this special law, he obviously stands in the shoes of the sheriffs. We now must determine the source and extent of the sheriffs' powers. General Statutes § 6-31 provides as follows: 'Each sheriff may execute in his county all lawful process directed to him, shall be conservator of the peace and may, when necessary, with force and strong hand, suppress all tumults, riots, unlawful assemblies and breaches of the peace and may raise the power of the county and command any person to assist him in the execution of his office.' It is common and public knowledge that on the days that the mayor imposed a curfew, the city of New Haven was rocked asunder by trumultuous and riotous conditions: looting and destruction of property were prevalent; and the general welfare of the entire city was seriously threatened. It was such circumstances that were envisioned by the General Assembly of the state of Connecticut when it enacted § 20(2) of the New Haven Special Laws (13 Conn. Spec.Laws 394, § 12 (2)) and General Statutes § 6-31. It seems clear that under these two statutory provisions, and in view of the circumstances then prevailing, the mayor acted within his authority. Indeed, failure to have so acted might well have been considered a dereliction of duty.

It is to be noted that under § 20(3) of the New Haven Special Laws (13 Conn.Spec.Laws 395 § 12(3)) the mayor could have requested assistance from the national guard. But recent outbreaks of riots across the width and breadth of this land have taught us the sad and painful lesson that whenever such assistance has been sought and received, the bad situations inevitably became worse before they got better.

In Newark, in Detroit, in Birmingham, in Milwaukee, and in Watts, hundreds of lives were lost and millions of dollars in property destroyed, and in each case outside assistance was sought and received. In New Haven not one life was lost and there were very few incidents of personal injury. Property damage was kept at a minimum.

It appears that the mayor did have the power to impose a curfew, and since he did it by so declaring on each day that a curfew was necessary, it likewise appears that he exercised his proper authority wisely.

II

The gravamen of the defendant's second contention is that in order for the curfew to be valid it should have contained 'built-in exceptions' for reasonable and necessary activity and, failing this, it constituted a denial of personal liberty without due process of law. Under usual and normal circumstances and as a general proposition, this may be true. But the circumstances existing at the time were not usual, nor were they normal.

The defendant cites in his brief Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1665, 12 L.Ed.2d 992, and quotes, in part, this passage: "The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose." What the defendant overlooks is that how drastic the means can be and still remain within the bounds of what may be deemed permissible largely depends upon the nature of the circumstances provoking the abridgment. The Aptheker case involved the issuance or refusal of passports to Communists or Communist sympathizers or those suspected of being so. This is far different from a curfew designed to prevent or contain a riot. Our constitution is not a static document, 'for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.' Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 387, 47 S.Ct. 114, 118, 71 L.Ed. 303; State v. Hillman, 110 Conn. 92, 105, 147 A. 294.

Who can deny that our concept of social order and social structure is changing? In each of the summers since 1963, riots in all parts of this nation have become nothing less than the vogue. Too often, if a large city does not experience a riot or two, it occasions the inquiry, 'Why not?' or the accusation that the community is apathetic. Certainly this is a new trend that must of necessity be met with new remedial and preferably preventive measures. Obviously, the most desirable and preventive measure is to labor hard to make each community an open community. But since this cannot be done in one day, there is no justification for permitting lawless disorder. The existence of injustice to our fellow human beings can never bring us to condone violence, lawlessness, hate, arson and destruction, for this would be the beginning of the end of our hoped-for free society.

While we must make every effort to protect our constitutional guarantees, and while the constitution protects against invasions of individual rights, it is not a suicide pact. In the 1965 riot in the Watts section of Los Angeles alone, 34 persons were killed, 1032 injured, and 3952 arrested. Some 600 buildings were damaged. Some $40 million in property was destroyed. In New Haven, the chief executive officer acted with dispatch to prevent comparable harm. Of course, it would have been preferable if he had been permitted time to provide exceptions. But people en masse, bent on disruption and destruction, are not guided or controlled by a clock. Of course, it would have been preferable if the mayor could have designated certain sections of the city in which the curfew was imposed. But fire and smoke are wide ranged, not localized.

If the argument is accepted that exceptions for necessary activity are the sine quanon for the validity of an order imposing a curfew, the question immediately arises as to who will determine the sincerity and genuineness of a claimed 'necessary activity' under such circumstances as existed in New Haven at the time with which we are concerned. A riot if not immediately checked leaves little time for inquiry into a person's real goal for being abroad during the curfew hours. During such emergencies, the inconvenience of a few must give way to the protection of the many.

A riot, being susceptible to the wide-range involvement of so many people, is not to be compared with the issuance of passports. A riot or a threat of a riot presents a clear and present danger which may require an unusual exercise of police power. And a law or an executive order (such as here) which is uniform in its operation is not rendered invalid merely because of the limited number of persons who will be affected by it. State v. Zazzaro, 128 Conn. 160, 165, 20 A.2d 737; Walp v. Mooar, 76 Conn. 515, 57 A. 277.

No one can argue successfully that the temper of the times in New Haven was anything less than dangerous. And activities even more dangerous, if unchecked, could reasonably have been anticipated. Activities obviously dangerous or detrimental to the public welfare, safety, health and morals,...