Williams v. District of Columbia

• Decision Date: 20 June 1969
• Docket Number: No. 20927.,20927.
• Citation: 419 F.2d 638,136 US App. DC 56
• Parties: George Albert WILLIAMS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

136 US App. DC 56, 419 F.2d 638 (1969)

George Albert WILLIAMS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 20927.

United States Court of Appeals District of Columbia Circuit.

Reargued November 6, 1968.

Decided June 20, 1969.

John E. Vanderstar, Washington, D. C., with whom Ralph J. Temple, Washington, D. C., was on the brief, for appellant. Glen O. Robinson, Washington, D. C., also entered an appearance for appellant.

David P. Sutton, Asst. Corp. Counsel for the District of Columbia, with whom Charles T. Duncan, Corp. Counsel, Hubert B. Pair, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellee.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, DANAHER,^* BURGER, WRIGHT, McGOWAN, TAMM, LEVENTHAL, and ROBINSON, Circuit Judges, sitting en banc.

McGOWAN, Circuit Judge:

This is an appeal, by leave of this court, from an affirmance by the District of Columbia Court of Appeals, 227 A.2d 60 (1967), of a conviction in the Court of General Sessions for the use in a public street of "profane language, indecent and obscene words" in violation of 22 D.C.Code § 1107 (1967) — a disorderly conduct statute which has remained virtually unchanged since 1898. A division of this court first heard the matter and, with one judge dissenting, affirmed, although only after attributing to the trial court a construction of the statute more restrictive than that thought necessary by the D.C. Court of Appeals. Because the statute is not one this court has construed before, and because of doubts as to the basis upon which appellant was charged and tried, consideration of the case en banc was deemed appropriate.

We find that a narrower reading of the statute than that given by the D.C. Court of Appeals would be essential to its valid application. This construction of the statute, in turn, would render fatally defective the information filed against appellant, necessitating the vacation of appellant's conviction and the dismissal of the charge filed against him.

I

When Sir Robert Peel first entered the British Cabinet as Home Secretary, two of his most urgent goals were police reform and law reform — in that order. His experience in office did not alter his estimate of the importance of these objectives, but it did cause him to reverse the order of their accomplishment; and his achievements in police reorganization and training came largely during his eventual Prime Ministership. It is said that he speedily learned that good police performance is highly dependent upon the existence of rationally conceived and clearly formulated criminal statutes.

The President's Commission on Crime in the District of Columbia has drawn the same moral, and one of its principal targets was the archiac sections of the D.C.Code relating to disorderly conduct. After noting the many thousands of disorderly conduct charges made each year by the Metropolitan Police, the Commission said that "close examination of these provisions is appropriate because of their pervasive impact on police-community relations and their vulnerability to constitutional challenge." The Commission went on to note the growing involvement of this court with these statutes, and it asserted that "legal as well as practical considerations suggest that review of the two disorderly conduct statutes would not only be timely but may become essential."¹ The Commission remarked that instructive models for this effort were readily at hand in the American Law Institute's Model Penal Code² and certain newly-revised state codes.³

A key recommendation of the President's Commission was that "Congress enact legislation creating a Commission to revise and reform the criminal laws of the District of Columbia." This proposal rested upon the Commission's considered judgment that Code revision would "help to define criminal behavior more clearly, assist police, prosecutors and judges, and increase the deterrent and rehabilitative impact of the criminal law." The Congress created such a revising committee in 1967,⁴ and its members were appointed. The law authorized an appropriation to enable the new commission to do its work, in an amount not to exceed $150,000 — a sum equivalent to the reputed current cost of three B-52 bombing sorties.⁵ No appropriation has as yet been made, although it is not clear whether the failure of initiative has been in Congress or the executive.

This promising project has, accordingly, not gotten off the ground; and police, prosecutors, and courts continue to try to enforce a 71-year old disorderly conduct statute which was not at its birth a model of craftsmanlike drafting and which has certainly not improved with age.

II

The information filed against appellant in General Sessions Court consisted of a catch-all printed form, with lines drawn through the inapplicable parts and the blank spaces filled in with appropriate information. It alleges that appellant, on November 6, 1965, and in front of 2714 14th St., N.W.,

"did then and there use profane language, indecent and obscene words and under circumstances such that a breach of the peace may be occasioned thereby, did congregate with others on a public street and did refuse to move on when ordered by the police. * *"

Although these allegations are not keyed in the information to any specific statute,⁶ it is conceded that the prosecution purported to be proceeding under two separate sections of Title 22 of the Code, namely, Section 1107⁷ and 1121,⁸ each of which is quoted in full in the margin. The alleged use of "profane language, indecent and obscene words" is thought to violate Section 1107, while the charge of congregating and refusing to move on under circumstances such that a breach of the peace may be occasioned is bottomed upon Section 1121(2).

Although the record indicates that a reporter was present at the trial before the General Sessions Court sitting without jury, the D.C. Court of Appeals refused appellant's request to have a transcript prepared at public expense.⁹ Appellant, with new counsel who was not present at the trial, was therefore obliged to proceed on a "Statement of Proceedings and Evidence" signed by the trial judge some four and one-half months after the trial had occurred. This statement described the testimony as being to the effect set forth below.

The prosecution's first witness was a police officer (Freto) who testified that at about 7:30 P.M., on November 6, 1965, he and his police partner (Bizeub) were walking south in the 2700 block of 14th Street, N.W. It was Saturday night, the area was generally congested, and the sidewalks were crowded. In front of a laundromat at 2742 14th Street, the officers saw appellant and four other men standing in a semi-circle. Although the sidewalk was said to be about 13 or 14 feet wide, Officer Freto said that the men were blocking the flow of pedestrian traffic on the sidewalk, and that he and his partner had to walk around the group of men. Therefore, before continuing south on 14th Street, the officer told the men to move on. After advancing some 200 to 300 feet further down the street, Officer Freto noticed that the five men had disobeyed his order and had not dispersed. The officers therefore backtracked, and again told the men they were blocking traffic and would have to move.

All but appellant obeyed the command. He, according to Officer Freto, said that he was not going anywhere, and that "no God damn policeman" could make him move, for he was the manager of the laundromat in front of which he was standing. The officer testified that he replied that the sidewalk was no place to conduct business, and that he again told appellant that he was violating the law by not moving. Appellant then said that "no son of a bitch" was going to make him move.

According to the officer, two of appellant's companions, who had previously moved away, returned at this point and asked appellant to join them; and appellant's wife, who had been inside the laundromat, came outside and also asked him to move. Appellant continued to refuse, but did move in the direction of the laundromat. When about three or four feet from the laundromat, but while still on the sidewalk, he said to the officer: "I dare you to lock my God damn ass up." The officer at this point took hold of appellant to arrest him. Appellant proceeded into the laundromat, however, and a minor scuffle ensued between him and the two officers, after which he was taken into custody. Officer Freto acknowledged, apparently on cross-examination, that he was aware that as a result of this incident a complaint to the police department had been made against him.

The testimony of the second policeman substantially confirmed that of his colleague. He, in addition, stated that appellant had been loud and boisterous, and had at one point stated that "no God damn rookie" was going to make him move. Officer Bizeub denied using a stick or blackjack, and said that the officers had not injured appellant in the scuffle.

At this point in the trial, the Government rested its case. The trial court, on the basis of Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965), granted appellant's motion to dismiss as to the refusal to move on charge under Section 1121, but the trial continued on the obscene language count under Section 1107. In defense, three witnesses, including appellant's wife testified that they had seen the policeman push appellant after hearing the policeman order him to move on. Each said that he had heard no profane words. Appellant, who took the stand, denied uttering any profane words. The trial court found the appellant guilty of violation Section 1107,¹⁰ but suspended imposition of sentence.

III

Affirming the conviction, the D.C. Court of Appeals wrote:

Appellant also maintains that the qualifying language of § 22-1121, the general disorderly conduct statute — "under circumstances such

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