State v. Dobbins

• Citation: 277 N.C. 484,178 S.E.2d 449
• Decision Date: 20 January 1971
• Docket Number: No. 57,57
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Preston Eugene DOBBINS.

Page 449

178 S.E.2d 449

277 N.C. 484

STATE of North Carolina v. Preston Eugene DOBBINS.

No. 57.

Supreme Court of North Carolina.

Jan. 20, 1971.

Atty. Gen. Robert B. Morgan, Asst. Atty. Gen. William W. Melvin and T. Buie Costen, for the State.

Chambers, Stein, Ferguson & Lanning, by James E. Ferguson, II, and Robert Harrell, Charlotte, for defendant.

LAKE, Justice.

Each of the findings of fact made by the Superior Court at the hearing upon the motion to quash the warrant is amply supported by evidence. There is not a shred of evidence to the contrary. It is quite clear that at 3 p.m. on 29 September 1969, the City of Asheville was faced with an imminent threat of widespread burning and other destruction of property, public and private. Emotional tension was prevalent. Tragic experiences in other cities across the nation were a reminder that, if those who threatened the destruction of property began to carry out that threat, violence would probably erupt throughout the city, resulting in numerous personal injuries and much bloodshed. The danger was clear and present, the time remaining for preventive measures a matter of hours. Under these circumstances, the contention of the defendant, that the Constitution of the United States and the Constitution of North Carolina forbid the city authorities to declare a state of emergency and to proclaim and enforce a temporary, night-to-night, city-wide curfew, with specified exceptions for emergency and necessary travel, is patently without support either in authority or logic.

The fact that, during the three nights in which this curfew was in effect, there was no such destruction and violence in the city does not support the defendant's assertion that the proclamation of the curfew was unnecessary and was an unreasonable restraint upon the liberty of the people of the city, including the defendant. On the contrary, it is an indication that Mayor Montgomery, a doctor, exercised sound judgment and prescribed an effective preventive measure. This experience of the City of Asheville is further evidence supporting the view that the danger to the public safety from conditions, such as existed in the city during the afternoon of 29 September, rises to a peak with the arrival of darkness and then subsides quickly in the face of resolute declarations of policy by the city administration and firm, fair enforcement of the applicable laws by an efficient police force. Experience in other cities also has demonstrated the efficacy of a preventive curfew promptly imposed. See: 'Judicial Control of the Riot Curfew,' 77 Yale Law Journal 1560, 1568; 'Legislation and Riot,' 35 Brooklyn Law Review 472, 479. In this instance, the City of Asheville was fortunate in having the effective preventive medicine prescribed and administered promptly.

Of course, the right to travel upon the public streets of a city is a part of every individual's liberty, protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and by the Law of the Land Clause, Article I, § 17, of the Constitution of North Carolina. The familiar traffic light is, however, an ever present reminder that this segment of liberty is not absolute. It may be regulated, as to the time and manner of its exercise, when reasonably deemed necessary to the public safety, by laws reasonably adapted to the attainment of that objective. The constitutional protection of the freedom of travel 'does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area.' Zemel v. Rusk, 381 U.S. 1, 15, 85 S.Ct. 1271, 1280, 14 L.Ed.2d 179, 189. The statement in Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204, 'The right to travel is a part of the 'liberty' of which the citizen cannot be deprived Without the due process of law under the Fifth Amendment,' (emphasis added) recognizes that this is a right which can be restricted with due process of law. See, Zemel v. Rusk, supra. The Zemel and Kent cases involved the right to a passport for international travel and were applications of the Fifth Amendment rather than the Fourteenth. However, these principles, there stated, apply also to the effect of the Fourteenth Amendment upon state imposed restraints on intracity travel.

The police power of the State extends to all the compelling needs of the public health, safety, morals and general welfare. Likewise, the liberty protected by the Due Process and Law of the Land Clauses of the Federal and State Constitutions extends to all fundamental rights of the individual. It is the function of the courts to establish the location of the dividing line between the two by the process of locating many separate points on either side of the line. So long as this Court sits, it will be engaged in that process, but it is not necessary or appropriate in the present instance to attempt to draw sharply, throughout its entire length, the line between the right of the individual to travel and the authority of the State to limit travel. It is sufficient, for the present, to hold, as we do, that the Asheville curfew proclamation falls well over on the side of reasonable restriction.

Even as to those major segments of individual liberty, expressly protected from Federal restraint by the First Amendment to the Constitution of the United States, governmental protection of the public safety 'from present excesses of direct, active conduct are not presumptively bad.' American Communications Association, C.I.O. v. Douds, 339 U.S. 382, 399, 70 S.Ct. 674, 684, 94 L.Ed. 925, 944. As Mr. Justice Brandies said, concurring in Whitney v. California, 274 U.S. 357, 373, 47 S.Ct. 641, 647, 71 L.Ed. 1095, 1105:

'Thus all fundamental rights comprised within the term liberty are protected by the federal Constitution from invasion by the states. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights. * * * These may not be denied or abridged. But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral.'

In West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S.Ct. 578, 581, 81 L.Ed. 703, 708, Mr. Chief Justice Hughes, speaking for the Court, said:

'Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.'

The defendant contends that the right to travel is related to the First Amendment freedoms of speech, assembly and religion. If so, this does not render it immune to restriction by State law, reasonably necessary for the protection of the public safety in view of prevailing conditions and reasonably calculated to promote such safety under those conditions. Of course, the right to travel on the public streets is a fundamental segment of liberty and, of course, the absolute prohibition of such travel requires substantially more justification than the regulation of it by traffic lights and rules of the road.

We do not have before us a prolonged curfew, imposed by an unduly fearful or arbitrary official upon a serene and peaceful city engaged in its normal pursuits. We have before us a temporary prohibition of travel in a city faced with a clear and present danger of violent upheaval, accompanied by widespread destruction of property and personal injury. To prevent, control and terminate such an upheaval is the primary function of government. Neither the Fourteenth Amendment nor Article I, § 17, of the State Constitution prevents the City Government of Asheville from discharing this duty owed by it to the people of the city.

The ultimate cause of the restraint upon this fundamental freedom of the law abiding citizens of Asheville was not the city government, but the arrogantly lawless portion of the people, who threatened the city with destruction if their demands were not met. In this situation, the reasonableness or unreasonableness of those demands is immaterial. The police power of the State is broad enough to sustain the promulgation and fair enforcement of laws designed to restore the right of safe travel by temporarily restricting all travel, other than necessary movement reasonably excepted from the prohibition. As the Supreme Court of Wisconsin said, in Ervin v. State, 41 Wis.2d 194, 163 N.W.2d 207:

'Whatever the cause, given the fact of widespread riotious conditions and criminal activities, the restoration of 'domestic tranquillity' becomes, not alone a constitutional right, but a constitutional obligation. The temporary imposition of a curfew, limited in time and reasonably made necessary by conditions prevailing, is a legitimate and proper exercise of the police power of public authority.'

Neither the Constitution of the United States nor the Constitution of this State requires the city authorities to delay such action until fires have been ignited and rioting has commenced. All that is required is the existence of a clear and present danger of such disastrous and unlawful conduct. This condition existed in Asheville when the curfew here in question was proclaimed, according to the record before us.

The defendant does not suggest that the curfew was not fairly enforced in Asheville. The officer, who approached his vehicle, inquired as to the reason for the presence on...