Wright v. Bailey, 74-2105

• Decision Date: 04 November 1976
• Docket Number: No. 74-2105,74-2105
• Citation: 544 F.2d 737
• Parties: Steven Wise WRIGHT and Clarence Edward Wright, Jr., Appellants, v. George BAILEY and Raymond L. Bell, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 737

544 F.2d 737

Steven Wise WRIGHT and Clarence Edward Wright, Jr., Appellants, v. George BAILEY and Raymond L. Bell, Appellees.

No. 74-2105.

United States Court of Appeals Fourth Circuit.

Argued May 7, 1976.

Decided Nov. 4, 1976.

S. W. Tucker, Richmond, Va. (Hill, Tucker & Marsh, Jack Greenberg, Charles Stephen Ralston, New York City, on brief) for appellants.

Andrew P. Miller, Atty. Gen. of Va., and Gilbert W. Haith, Asst. Atty. Gen., Richmond, Va., for appellees.

Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

DONALD RUSSELL, Circuit Judge:

The petitioners Steven Wright and Clarence Wright, in separate petitions, sought in the District Court habeas relief in connection with their convictions in the Circuit Court of Albemarle County, Virginia, as a result of a disturbance or altercation at a night club in such County. Since the offenses of which both petitioners were charged in the State Court proceedings arose out of the same circumstances, the two petitioners were tried together in the State Court and their habeas petitions in the District Court were combined for hearing. The District Court denied relief in both cases. The petitioners have appealed. We affirm.

The petitioners who are brothers were at a night club. A disturbance in which they were involved arose and the manager of the night club called the police authorities. When they arrived at the scene, the officers inquired of the manager, who had made the complaint, the circumstances of the complaint. According to the prosecution testimony, the petitioner Steven Wright, shouting in a loud and boisterous voice, kept interrupting the manager in his account of the disturbance, belligerently contradicting the manager's statement and making it difficult, if not impossible, for the officer to proceed with his investigation of the complaint of the manager of the night club. The officer who was conducting the investigation asked Steven to remain quiet until after he had gotten the manager's statement. Steven seemed to pay no heed to the request, though it was repeated by the officer. At this point, the officer told Steven he would arrest him if he continued to interrupt his interrogation of the manager. When Steven continued to interrupt and to interfere with the examination, the officer arrested him for disorderly conduct, took him by the arm and attempted to lead him to the police car. At this point Steven "jerked free" and drew back as if, according to the officer, to strike the officer. When he did this, the officer struck him with his billy, whereupon the petitioner Clarence Wright jumped on the officer "from behind," inflicting "a deep cut around (his) neck." Other officers pulled Clarence Wright off the back of the investigating officer and arrested him for an assault upon an officer. After a trial in the State Court, jury waived, the petitioner Steven Wright was found guilty of disorderly conduct and unlawfully resisting arrest, and the petitioner Clarence Wright was found guilty of assault and battery on a police officer and of unlawfully resisting arrest. On the charge of disorderly conduct, the petitioner was ordered to pay a fine of $50 and on the other charge, was fined $50 and sentenced to 30 days' confinement, suspended and placed on probation for a year. The petitioner Clarence Wright was sentenced for assault and battery on a police officer to serve 30 days in jail and pay a fine of $50, and for unlawfully resisting arrest he was sentenced to serve 30 days in jail and a fine of $50. The petitioners applied for a writ of error to the State Supreme Court but such application was denied as was their petition for writ of certiorari to the Supreme Court of the United States. ¹ These habeas proceedings were then begun.

The District Court dismissed the claim of Steven Wright which related to his conviction for disorderly conduct, resulting in a fine, on the ground that the petitioner was not "in custody" within the intendment of habeas jurisdiction, since the sole punishment imposed for such conviction was a fine with no provision for incarceration in event of non-payment. Such ruling is amply supported by the authorities ² and we affirm. The Court, however, found that there was habeas jurisdiction to review Steven Wright's conviction of resisting arrest and Clarence Wright's conviction of assault and battery upon an officer and of resisting arrest. The claim for relief in both cases turns on the petitioners' contention that Steven's arrest was unlawful. If it were unlawful, the petitioners reason, Steven Wright had a right forcibly to resist arrest and, when the arresting officer sought to arrest forcibly Steven, his brother Clarence had a right to go to his assistance. It follows that, unless it is established that Steven's arrest when made was unlawful, the claim for relief by both petitioners must fail.

The petitioners' argument that Steven's arrest was unlawful depends entirely on the unconstitutionality of the Virginia disorderly conduct statute. It is conceded, though, that such statute had not been held unconstitutional prior to Steven's arrest. It was more than two years later that in a proceeding in the District Court, affirmed almost a year later by this Court, that the statute was found constitutionally defective. ³ So far as the arresting officer knew at the time or for that matter, the petitioners themselves knew the statute was valid and was not under constitutional attack. An arrest is not unlawful within the common law right to resist, ⁴ if the arrest is authorized by statute or by legal process facially good, even though the statute may later be declared unconstitutional, or the legal process found defective. United States v. Beyer (2d Cir. 1970) 426 F.2d 773, 774; State v. Briggs (Mo.1968) 435 S.W.2d 361, 364-5; Canney v. State of Florida (Fla.Ct.App.1974) 298 So.2d 495, 496, cert. denied, Fla., 310 So.2d 743, cert. denied 423 U.S. 892, 96 S.Ct. 188, 46 L.Ed.2d 123 (1975); Note, Defiance of Unlawful Authority, 83 Harv.L.Rev. 626, 636; cf., also, United States v. Ferrone, supra, 438 F.2d at 390; Commonwealth v. Supertzi (1975) 235 Pa.Super. 95, 340 A.2d 574, 575; State v. Wright (1968) 1 N.C.App. 479, 162 S.E.2d 56, 62. ⁵ This exception to the common law rule was stated in the Note in 83 Harv.L.Rev. at 636 thus:

" * * * The only major restrictions on this common law right, (to resist an unlawful arrest) beyond those already applied to the analogous right of self-defense, were holdings that arrests were valid and resistance to them therefore unlawful if authorized either by a law later declared unconstitutional or by an arrest warrant found sufficient on its face to show its purpose although suffering from some latent defect." (Emphasis added)

The reasoning on which this exception rests is that the validity of the arrest depends on the law as it exists at the time of the arrest and not as it may later be declared. This was the rationale of the decision in United States v. Beyer, supra, where the Court said:

"Appellant argues that three Supreme Court decisions which postdate the issuance of the indictment against him invalidated its use as the basis for lawful process and therefore entitled him to resist arrest. This contention is without merit. The indictment was 'fair on its face' (Ex Parte United States, 287 U.S. 241, 249, 53 S.Ct. 129, 77 L.Ed. 283 (1932) when issued * * *." (Italics added)

Somewhat similar reasoning was expressed in Canney v. State of Florida, supra:

"Irrespective of the constitutionality of the city ordinances which appellant now collaterally attacks, the lawfulness of the arrest ' * * * must stand or fall upon the facts and circumstances then existing.' " (Court's emphasis) ⁶

Perhaps the most complete explication of the exception appears in State v. Briggs, supra, at 364-5:

" * * * It also contends that even if the ordinance is unconstitutional, the defendant had no right to resist arrest * * *. We are of the opinion that this third contention of the State must be sustained and hence we need not consider the constitutionality of the ordinance.

"The City of Riverside had adopted in 1956 the ordinance making drunkenness an offense. So far as the record here discloses, the constitutionality of the ordinance had never been attacked. Under such circumstances, it would not have been proper for a police officer of the city to take it upon himself to pass upon the validity of the ordinance. Until repealed or held invalid by a court of competent jurisdiction, it was the duty of the officer to enforce the ordinance. Likewise, it was not the right of an individual to resist arrest on the basis of a contention that the law he allegedly was violating was unconstitutional or invalid for some other reason. A defendant may raise that question as a defense to the...