Knoch, Senior Circuit Judge, and Stevens and Sprecher, Circuit Judges.
KNOCH, Senior Circuit Judge.
The petitioner-appellant, United States ex rel. Karl Meyer, has appealed denial of petition for Writ of Habeas Corpus. Mr. Meyer is not actually in custody at this time.
He and associates were conducting a "forum" on a number of Friday and Saturday evenings on the public sidewalk in the Old Town area of Chicago, a section of the city which is highly frequented and very busy at such times. Apparently no serious difficulties arose until the night of July 14, 1967.
Beginning at about 8:45 P.M., on Wells Street in the Old Town area, Mr. Meyer, and other speakers, standing on 5-gallon milk can rostrums, addressed a gathering crowd of 150 to 200 persons according to one of the police officers present. Mr. Meyer estimated the crowd at not more than 100 persons. Several of his associates distributed pamphlets. A large sign stood behind the speakers. A shopping cart filled with pamphlets stood nearby. Pedestrians wishing to pass by had to step into the street to do so.
Police Sergeant Raymond O'Malley was present, on duty, observing the forum. About 11:00 P.M. the crowd became progressively louder. Even at the outer edges it was apparent that the speakers were engaged in argument with members of the crowd. Two of the persons who had been distributing leaflets told Sergeant O'Malley that a fight was beginning within the group. He himself saw one fight break out. Several persons tore down the banner behind the speakers, which was replaced by one of Mr. Meyer's supporters who grabbed a stick and was about to engage in a fight when the banner was again torn down and set afire. Sergeant O'Malley also saw burned pamphlets. Another of Mr. Meyer's supporters tried to eject certain persons from the immediate area.
It is appellant's position that at this point, it was the inescapable duty of the police to restore order by dispersing only the hostile elements so that the forum could continue, and that no other option to quell the disorder by dispersing the entire group was open to the police lest a hostile crowd thereby be empowered to veto conduct protected under the Constitution. This theory ignores the practical decisions which a small number of police officers must make quickly when faced with a reasonable apprehension that an unruly crowd situation may rapidly deteriorate into an uncontrollable riot.
Sergeant O'Malley elected to handle the situation by stepping in and ordering the entire group, including the forum operators, to disperse. Mr. Meyer then climbed up on one of the milk can rostrums and refused to leave, although Sergeant O'Malley told him about the fights then occurring within the crowd and Mr. Meyer himself recognized that the situation was tense and that the instructions to disperse came from members of the police department. Nevertheless, he said, "I will not move. You can arrest me if you please."
As he went about instructing others to depart, Officer James Highland, several times, issued the same command to Mr. Meyer. Ultimately Officer Highland placed Mr. Meyer under arrest.
Having waived trial by jury, Mr. Meyer was tried by the Circuit Court of Cook County, Municipal Division, found guilty and fined $100 on a charge of interfering with a police officer in violation of the Municipal Code of Chicago, § 11-33, which contains no provision for incarceration.
The Court ordered that, failing to pay the fine, Mr. Meyer would have to "work" it out in the House of Correction at $5 per day. An indigent, which Mr. Meyer does not claim to be, may not be incarcerated for failure to pay a fine. Tate v. Short, 1971, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130; Williams v. Illinois, 1970, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586. Although he has not paid the fine, Mr. Meyer has been at large at all times since his conviction on a $1000 bond, which required an actual cash deposit of $100.
An appeal to the Illinois Supreme Court was based on the contention that appellant's conduct was constitutionally protected and that he was denied a fair trial in violation of the 14th Amendment. The conviction was affirmed by the Illinois Supreme Court, 1969, City of Chicago v. Meyer, 44 Ill.2d 1, 253 N.E.2d 400, and certiorari denied by the United States Supreme Court, 1970, 397 U.S. 1024, 90 S. Ct. 1262, 25 L. Ed. 2d 534, rehearing denied 398 U.S. 915, 90 S. Ct. 1688, 26 L. Ed. 2d 80.
Mr. Meyer argues that the ordinance under which he was convicted has already been held unconstitutional in Landry v. Daley, D., N.D., Ill., E.D., 1968, 280 F. Supp. 968, 973. The District Judge in Landry concluded that under the wording of the ordinance, one who inadvertently interfered with a peace officer, whom he did not know was a peace officer, nevertheless had violated the ordinance. Further he thought "interfere" (unlike "resist" or "obstruct") was a vague term which would cover innocent conduct.
The respondents point out that this holding was made in a completely unrelated case prior to any state court interpretation of the ordinance and, in the absence of a determination by the United States Supreme Court, does not bind the state appellate tribunal, as held in United States ex rel. Lawrence v. Woods, 7 Cir., 1970, 432 F.2d 1072, 1075-1076, cert. den. 402 U.S. 983, 91 S. Ct. 1658, 29 L. Ed. 2d 148, a view which has been adopted by Illinois in People ...