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The People v. Raby

OPINION FILED SEPTEMBER 24, 1968.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

ALBERT A. RABY, APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MAURICE LEE, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

A jury in the circuit court of Cook County found the defendant, Albert A. Raby, guilty of disorderly conduct and resisting arrest. He was fined $500 on the disorderly conduct charge and was sentenced to three months in the county jail for resisting arrest. On this direct appeal, he contends that his constitutional rights were violated in several respects.

The facts are undisputed. On June 28, 1965, the defendant and several other persons conferred with the mayor of the city of Chicago about problems of racial segregation in the Chicago public schools. During the conference a number of persons marched around the City Hall block, carrying banners and signs protesting racial segregation in the schools. At the conclusion of the conference, the defendant made a brief speech at the LaSalle Street entrance to the City Hall. After the speech, about 5:00 P.M., at the peak of the evening rush hour, the defendant and about 65 others went to the intersection of Randolph and LaSalle Streets where they either sat down or lay down, completely blocking traffic through the intersection. Police officers asked that they leave the intersection. They refused, and approximately twenty minutes later the officers began placing them under arrest. To arrest the defendant, the officers had to untangle him from others with whom he had intertwined his arms and legs. He then "went limp" and had to be carried to a police van.

The sections of the Criminal Code under which the defendant was convicted are:

Section 26-1(a). "A person commits disorderly conduct when he knowingly: (1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace * * *." (Section 26-1(b) provides that "a person convicted of a violation * * * shall be fined not to exceed $500.") Ill. Rev. Stat. 1967, chap. 38, par. 26-1.

Section 31-1. "A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both." Ill. Rev. Stat. 1967, chap. 38, par. 31-1.

The defendant's first contention is that "on their face, and as applied to defendant's conduct sections 26-1(a) and 31-1's proscriptions are vague and overbroad in violation of the first and fourteenth amendments of the United States Constitution and Article II, sections 2 and 4 of the Illinois Constitution."

As to the validity of section 26-1(a), it is said that to be guilty of an offense "a defendant need only commit an act which subjectively alarms or disturbs another and thereby provokes a breach of the peace," and that the statute "subjects citizens' right to engage in certain undefined conduct to the unfettered discretion of the police." But these arguments overlook the words of the statute which qualify the frame of mind of both the actor and of those affected by the actor's conduct. That conduct must be engaged in "knowingly" and "in such unreasonable manner" as to provoke a breach of the peace. The word "knowingly" describes a conscious and deliberate quality which negatives accident or mistake. "Unreasonable" is not a term that is impermissibly vague. As used in the fourth amendment it furnishes the governing standard by which the legality of police intrusions upon privacy are measured. (Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889.) As used in this statute it removes the possibility that a defendant's conduct may be measured by its effect upon those who are inordinately timorous or belligerent. The well recognized common-law term "breach of the peace" appears in section 6 of article 1 of the constitution of the United States.

By a process of selection from among various dictionary definitions of the words used in the pertinent portion of section 26-1(a), the defendant concludes that if those words are read literally, "a person is guilty of disorderly conduct when he engages in `conduct which constitutes a breach of the public peace or violates the standards of public morality when he does any act in an irrational, foolish, unwise, absurd, silly, preposterous, senseless, stupid manner so as to frighten, terrorize, apprehend or throw into disorder another and to provoke a violation of public order'." Such a method of interpretation could, of course, be applied to drain the sense and meaning out of any constitutional or statutory provision, for there are few words that have a constant meaning regardless of their context. In no case has the statute been applied or construed in the irrational manner the defendant suggests, and we foresee no possibility that any court would so construe it.

It is true that section 26-1(a) does not attempt to particularize all of the myriad kinds of conduct that may fall within the statute. The legislature deliberately chose to frame the provision in general terms, prompted by the futility of an effort to anticipate and enumerate all of the methods of disrupting public order that fertile minds might devise. "Section 26-1(a) is a general provision intended to encompass all of the usual types of `disorderly conduct' and `disturbing the peace'. Activity of this sort is so varied and contingent upon surrounding circumstances as to almost defy definition. * * * In addition, the task of defining disorderly conduct is further complicated by the fact that the type of conduct alone is not determinative, but rather culpability is equally dependent upon the surrounding circumstances. * * * These considerations have led the Committee to abandon any attempt to enumerate `types' of disorderly conduct. Instead, another approach has been taken. As defined by the Code, the gist of the offense is not so much that a certain overt type of behavior was accomplished, as it is that the offender knowingly engaged in some activity in an unreasonable manner which he knew or should have known would tend to disturb, alarm or provoke others. The emphasis is on the unreasonableness of his conduct and its tendency to disturb. * * *" S.H.A., chap. 38, par. 26-1. Drafting Committee Comments.

The defendant also argues that section 26-1(a) is overbroad because it may be applied to "persons exercising their First and Fourteenth Amendment freedoms of expression." This argument is untenable because it attributes to the statute an unreasonably broad construction that no court would sanction, and the "constitutionality of a statute * * * is not dependent on its susceptibility of misapplication." (Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, 960.) Moreover, the contention adopts a view already rejected by the United States Supreme Court that "an apparently limitless variety of conduct can be labelled `speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien (1968), 391 U.S. 367, 20 L.Ed. 672, 679.

Under no circumstances would the statute "allow persons to be punished merely for peacefully expressing unpopular views". A construction by the Louisiana Supreme Court which permitted such a result caused the invalidation of Louisiana's "disturbing the peace" statute. (Cox v. Louisiana, 379 U.S. 536, 544, 13 L.Ed.2d 471, 484.) But in that same case, upon which defendant heavily relies, the Supreme Court upheld the constitutionality of proscribing the precise conduct engaged in by the defendant — conduct clearly within the language of the present statute. "The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. * * * One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly." (379 U.S. at 554, 13 L.Ed. at 484.) We cannot accept defendant's contention that section 26-1(a) was unconstitutionally applied.

The validity of section 26-1(a) was recently sustained by a three-judge Federal district court against an attack like that mounted by the defendant in this case. (Landry v. Daley (N.D. Ill., 1968), 280 F. Supp. 938.) And a similar attack was rejected in United States v. Woodard (7th cir.), 376 F.2d 136, a case that arose under the Federal Assimilative Crimes Act. (18 U.S.C. § 7, 13.) A similar New York disorderly conduct statute was sustained in United States v. Jones (2d cir.), 365 F.2d 675, and a New Jersey disorderly conduct statute, couched in terms at least as broad as section 26-1(a), was sustained in New Jersey v. Smith (1966), 46 N.J. 510, 218 A.2d 147, 151, cert. denied, 385 U.S. 838, 17 L.Ed.2d 71.

We agree with the conclusions that have been reached in these decisions, and we hold that section 26-1(a) is not vulnerable to the ...


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