City of Houston, Texas v. Hill

PETITIONER:City of Houston, Texas
RESPONDENT:Hill
LOCATION:Ronald Dunn’s Ranch

DOCKET NO.: 86-243
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 482 US 451 (1987)
ARGUED: Mar 23, 1987
DECIDED: Jun 15, 1987

ADVOCATES:
Charles Alan Wright – on behalf of Appellee
Marshal Wong – on behalf of appellant
Robert J. Collins – on behalf of Appellant

Facts of the case

Question

Audio Transcription for Oral Argument – March 23, 1987 in City of Houston, Texas v. Hill

William H. Rehnquist:

Mr. Collins, you may proceed whenever you’re ready.

Robert J. Collins:

Mr. Chief Justice, and may it please the Court:

This case raises serious questions about whether a city can prohibit the intentional interruption of a police officer during an investigation without infringing Constitutional rights protected under the First Amendment.

The answer to this question is of vital importance to both the city of Houston and many other cities and states in this country.

There are three principle legal issues that must be addressed by the court.

Sandra Day O’Connor:

Mr. Collins, let me inquire about that statement, that it’s of vital importance to Houston.

I thought that the ordinance there had been repealed by the City Council.

Robert J. Collins:

It has not, Your Honor.

In 19–

Sandra Day O’Connor:

And then reinstated just for purposes of this litigation.

Robert J. Collins:

–That is not correct, your Honor.

In 1981, the city of Houston started out on a code recodification process.

That process took approximately four years.

Our initial, one of our initial recommendations regarding this statute was to possibly repeal it.

After the Hill suit came around the city of Houston City Council has reconsidered that recommendation at this point.

Sandra Day O’Connor:

Well, so what is the status?

It’s going to become a permanent part of the Houston City Code if you win this lawsuit?

Robert J. Collins:

It is already a permanent part of the city of Houston City Code.

The fact that it is not codified does not affect its enforceability at all.

Sandra Day O’Connor:

Well why wasn’t it put in the codification?

Robert J. Collins:

It was not put in the codification because at the time of codification the panel decision in the Hill case by the Fifth Circuit had been decided two to one and we were concerned that if we did put it in, it would be inadvertently be enforced.

So if it’s not codified we’re not enforcing it at the current time.

The legal issues before the Court center around the application of the Overbreadth Doctrine to a core criminal conduct statute.

It’s the city’s contention that the appellee, Mr. Hill, was involved in activities that were well within the Constitutionally prescribable realm of core criminal conduct, and as such he should not be able to assert the rights of other individuals not before this Court.

Sandra Day O’Connor:

xxx.

Robert J. Collins:

That’s correct.

Antonin Scalia:

Well, how can we possibly agree with you on that if the man was acquitted?

Robert J. Collins:

I think the question is: do the police officers have probable cause to arrest somebody for violation of this statute?

I don’t think we can hold a statute unconstitutional because an individual who raises it was acquitted.

Antonin Scalia:

I don’t understand.

Antonin Scalia:

You said that the actions committed by this individual were plainly within what the Constitution would permit to be acted upon by the police.

Robert J. Collins:

That is correct.

He interfered intentionally with a police officer during an investigation.

Antonin Scalia:

But that’s not what the jury found.

Robert J. Collins:

There was no jury–

Antonin Scalia:

Oh, I’m sorry.

Robert J. Collins:

–in that case.

Antonin Scalia:

It was tried before a judge.

A judge found that he hadn’t.

Robert J. Collins:

That is not correct either.

The case was dismissed.

It’s not in the record as to why the case was dismissed.

The court reporter apparently had lost the notes.

Antonin Scalia:

Well is there any other possible reason why it would have been dismissed?

Robert J. Collins:

There are a lot of speculative reasons.

There could of been a situation where the judge felt that he had made a statement that prejudged the case and therefore that for technical reasons it could nave been dismissed.

There are a number of reasons, but it is not in the record before this Court as to why it was.

William H. Rehnquist:

Did it go to trial?

Robert J. Collins:

It did not go to trial to my knowledge, no.

The second legal issue that we have here is if indeed Mr. Hill is allowed to raise the Constitutional rights of others not before the Court and if he can assert those rights, is the ordinances overbreadth both real and substantial.

And again, in a subsidiary issue is a narrowing construction of the ordinance available?

Late one evening, early in the morning, in 1982, Officer James Kelley of the Houston Police Department and his partner were on patrol in a high crime area of the city of Houston.

While they were stopped and while Officer Kelley’s partner was issuing a traffic citation, Officer Kelley observed an individual standing in the middle of a street stopping traffic.

He had stopped a city bus and a number of cars.

Officer Kelley approached the man and directed the man to the sidewalk in order to insure his safety and attempt to unblock the traffic in the street.

As part of his investigation, Officer Kelley had been talking to the man.

As he became more involved in the investigation, the individual became erratic in his actions and started to walk away from Officer Kelley.

At that point in time, Officer Kelley told the man to stop, approached the man, touched him on the shoulder to turn him around.

At that point in time, Officer Kelley heard a voice from the sidewalk where a crowd was gathering.

That voice was the voice of the appellee in this case, Ray Hill.

Robert J. Collins:

Mr. Hill yelled at Officer Kelley, told him to leave the man alone; he hadn’t done anything wrong.

Officer Kelley continued to speak to the man.

He continued with his investigation.

Ray Hill also continued.

He continued to yell at Officer Kelley in a loud and boisterous voice,

“leave him alone, why don’t you pick on somebody your own size. “

Mr. Hill yelled.

Officer Kelley then asked Hill if he was interrupting him in his capacity as a police officer.

Mr. Hill replied,

“Yes, why don’t you pick on somebody my size. “

At that point in time, Officer Kelley, being concerned with the gathering crowd, concerned about the possibility of violence and feeling that Ray Hill was baiting him, and challenging him, and interrupting him in his investigation, arrested Mr. Hill and charged him with the violation of the ordinance at issue here.

The precise wording of the ordinance at issue here is:

“It shall be unlawful for any person to assault, strike, or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest. “

Antonin Scalia:

Mr. Collins, can I get something squared away?

I didn’t, in our earlier, I didn’t, I understood your answer to the Chief Justice’s question, but it didn’t comport with my recollection.

You said in your brief that Hill was later tried and found not guilty of the offense.

And likewise, the Appellee’s brief says the same thing.

Hill subsequently was found, not guilty of violating the ordinance, following a non-jury trial before a Houston Municipal Court.

Now, was he tried and found not guilty, or not?

Robert J. Collins:

I believe that your question, Justice Scalia, was, was he acquitted?

He was found not guilty.

Yes, that is a true statement.

Antonin Scalia:

Well, I had asked you whether he was tried and I thought you said he wasn’t tried.

Robert J. Collins:

What happened, well it’s outside the record, but he was not, the trial was interrupted in the middle.

Antonin Scalia:

By what?

Robert J. Collins:

The fact that the trial, the fact that the trial court judge–

Antonin Scalia:

Found him not guilty.

[Laughter]

Robert J. Collins:

–Right.

The fact that the trial court judge announced that, made a statement in front of counsel for Mr. Hill that he felt Mr. Hill was guilty, statement was in front of the jury, he felt that he had pre-judged the case and so he found him not guilty at that point in time.

Robert J. Collins:

That is my recollection of what happened.

That is not in the record; however, before this Court.

Antonin Scalia:

Were you [inaudible]?

Robert J. Collins:

No, I was not.

Antonin Scalia:

But the fact is he was found not guilty.

We have to assume that he was not, I mean, there’s a, there was a record finding of not guilty whatever the reason for it was.

Robert J. Collins:

That’s correct, there was.

Antonin Scalia:

And you distinguish that from an acquittal?

Robert J. Collins:

I distinguish it from acquittal because I took the word acquittal to mean that it was submitted to the jury, the jury deliberated and found that he was not guilty.

Harry A. Blackmun:

At least he was not convicted?

Robert J. Collins:

He was not convicted, no.

Harry A. Blackmun:

xxx.

Robert J. Collins:

Pardon me, Your Honor?

Thurgood Marshall:

Why are we sitting on a case where a man was found not guilty?

Robert J. Collins:

Because the individual has raised the argument that the city of Houston is unconstitutional, unconstitutionally denying him the right to exercise his rights of free speech in the area and at the scene of arrest in the city of Houston.

Thurgood Marshall:

The unsuccessful [inaudible].

Robert J. Collins:

He has not been convicted under the ordinance.

He’s been arrested four times under it.

Byron R. White:

Right.

And he says, I may do it again, and so I want to challenge the ordinance.

Robert J. Collins:

That’s precise, Your honor.

William H. Rehnquist:

xxx.

And the Fifth Circuit sustained his challenge to the ordinance.

Robert J. Collins:

The Fifth Circuit sustained his challenge to the ordinance–

Byron R. White:

And said he had standing to raise the issue.

Robert J. Collins:

–Said he had standing to raise the issue, found the ordinance over broad.

Harry A. Blackmun:

But they’ve taken it under en banc consideration.

Robert J. Collins:

They took it under en banc consideration and held eight to seven that Mr. Hill had standing and that the ordinance was over broad.

Thurgood Marshall:

Well now that he has created all of this havoc, couldn’t we just drop the case and get it over with.

[Laughter]

Robert J. Collins:

I don’t think so, Justice Marshall.

[Laughter]

I think that there is a legitimate interest that a city has in protecting its police officers while they are involved in investigations, interference, and interruption.

The ordinance itself does not contain a scienter requirement.

But the scienter requirement is added by state law.

State law in Texas requires that all ordinances have a scienter requirement.

Therefore in this case an individual cannot be convicted under this ordinance unless he knowingly interferes with a police officer in the performance of his duties.

Antonin Scalia:

What does knowingly interferes mean?

That is your, whatever you say is not involuntary.

You’re not sleepwalking or something of that sort, but you don’t necessarily have to know that what you’re doing is a violation of the law.

Scienter doesn’t require that.

Robert J. Collins:

Scienter requires that you have an intent to interrupt the officer.

If you do not have–

Antonin Scalia:

Whatever that means.

Robert J. Collins:

–If you do not have an intent to interfere with an officer–

Antonin Scalia:

Whatever interfere with the officer means.

Robert J. Collins:

–Interfere with the officer means to interrupt him during the course of his duties.

Antonin Scalia:

Yes, whatever a court later finds to constitute an interruption.

But you certainly, by reason of the state’s scienter requirement, you do not have to know that you are violating the law, do you?

Robert J. Collins:

The scienter requirement does not require that.

Scienter requirement would–

Antonin Scalia:

Right.

Robert J. Collins:

–allow you to have probable cause.

A police officer would not go out and arrest somebody under a statute on the basis that they walked up to them and asked them, could you please tell me how to get to the police office downtown.

John Paul Stevens:

Why not?

If he inter…, if he was doing something else at the time why wouldn’t that be a plain and flagrant case of interruption?

If he was directing traffic and you walked up to him and said, please tell me how to find the city hall.

Robert J. Collins:

Unless the, it was done intentionally–

John Paul Stevens:

It was done intentionally.

He wanted to interrupt so he could find out where the city hall is.

John Paul Stevens:

That’s a plain violation, I think.

Isn’t it?

Robert J. Collins:

–I don’t think it is.

First of all I’m not sure whether or not in the particular instance that we’re discussing that the officer would be involved in an investigation and the record is clear that the only time that this ordinance is enforced is during an investigation.

John Paul Stevens:

It also says in the execution of his duty as I thought it, unless the abuser interrupt any policeman in the execution of his duty.

And I have a traffic officer executing, telling people to stop and to start and so forth.

Why isn’t that executing his duty?

Robert J. Collins:

The term execution of his duties is limited by the fact that officers only arrest people for interrupting them during investigations.

Byron R. White:

How do we know that?

Robert J. Collins:

That is in the record.

Joint Appendix, page 77, where Officer Kelley testified that that was his view of the law.

Antonin Scalia:

Well does that show that the statute is not overbroad simply because you don’t use it in those areas which it shouldn’t properly, which it shouldn’t apply to?

That doesn’t prove that the statute isn’t overbroad.

It just proves that their not using it in the overbroad areas.

Robert J. Collins:

But on the other hand if the statute doesn’t cover those areas then what you’re saying the overbreadth doctrine is there for is to prevent the city–

Antonin Scalia:

But the statute does cover it.

All you’re saying is the enforcement doesn’t cover it.

An overbroad statute is a statute whose statutory scope, you don’t have a court decision do you that says it can’t be enforced in this other area.

Robert J. Collins:

–No, we do not.

Antonin Scalia:

So you’re just saying we’re not enforcing it in the overbroad areas, but that doesn’t make it any less overbroad it seems to me.

Robert J. Collins:

I think that it makes it less overbroad in the fact that if we looking at whether the statute is overbroad, we have to look at whether it’s real and substantial overbreath.

And, if indeed, the only enforcement ambit of the statute is intentional interference during an arrest, there are not too many types of protected speech that could be alleged to be used in that circumstance.

Antonin Scalia:

I think that would be a good argument if you had a court decision that said this statute only applies to arrests, but you don’t.

You told me it applies to what Justice Stevens described.

You’re just saying, we won’t use it in that situation.

Robert J. Collins:

I would also refer you, Justice Scalia, to the complaint which is on page two of the Joint Appendix which states that people are charged for interrupting, willfully, intentionally interrupting a police officer during an investigation.

Harry A. Blackmun:

Mr. Collins, the ordinance is broad; there’s no question about this.

Are there not Texas state statutes that cover some of the possible application of the statute?

Robert J. Collins:

There are three Texas statutes that would cover assault.

Harry A. Blackmun:

And to that extent do they preempt the ordinance?

Robert J. Collins:

Yes, they do to that extent.

Harry A. Blackmun:

Can you give us some examples of instances that are not preempted by state statutes?

Robert J. Collins:

Yes.

I think that the instances in the record are prime examples of it.

The cameramen who were involved on the crime scene, interfering with the officers in two cases.

The individual who attempted to hold back the officers that were making a vice investigation into a club.

Those instances have been characterized by the counsel in the lower court in this case as being representative of the way the ordinance is enforced.

Harry A. Blackmun:

Well can you give a, any kind of a definition of a so-called legitimate scope of the ordinance.

Robert J. Collins:

I think that the ordinance’s legitimate scope should be limited to intentional acts during an investigation where an individual attempts to interfere or interrupt a police officer.

Byron R. White:

Didn’t the Court of Appeals here say that the conduct that was involved here could constitutionally be forbidden?

Robert J. Collins:

I think it did, yes.

Byron R. White:

Said this was a, this was a proper, this was a constitutional application of the ordinance but that didn’t cure the overbreadth problem.

Robert J. Collins:

That’s correct.

That was the holding of the Fifth Circuit en banc.

Sandra Day O’Connor:

How do you distinguish the Lewis Case from this–

Robert J. Collins:

Lewis was a case where the statute was directly aimed at speech.

Lewis prohibited opprobrious language.

Our statute does not prohibit words, it prohibits conduct.

Sandra Day O’Connor:

–Well, but could not the statute under your interpretation of its legitimate scope fall squarely under Lewis?

Can’t you interrupt, can’t you intend to interrupt an investigation or arrest by speech alone?

Robert J. Collins:

Yes you can, Justice O’Connor.

Sandra Day O’Connor:

And so in your view, it would be legitimate to apply the ordinance to that.

Robert J. Collins:

That is correct.

Sandra Day O’Connor:

So how do you distinguish Lewis?

Robert J. Collins:

I distinguish Lewis because Lewis on its face dealt with words, there was, it was an overbroad statute.

It simply said you could not speak opprobrious words to anyone.

I think we have a statute here that is entirely different.

Here we’re talking about you cannot interrupt a police officer intentionally during an investigation.

The only other instance–

Antonin Scalia:

What, what, excuse me, what is left other than speech that isn’t preempted by the other state laws?

Antonin Scalia:

I mean, you say interrupt an investigation.

How do you do it other than by speech unless you physically stop the officer.

That would be covered by the assaulting an officer statute.

Robert J. Collins:

–If you touched him or caused bodily injury it would be covered by assault statute.

Antonin Scalia:

Right.

Robert J. Collins:

But if you walked into the middle of the investigation, stood next to the arresting officer and the suspect and began talking in a loud voice while he was reading the Miranda warning to the suspect–

Antonin Scalia:

That’s speech.

Robert J. Collins:

–that’s certainly is misconduct.

Antonin Scalia:

Right.

Robert J. Collins:

It’s also speech with action.

Sandra Day O’Connor:

So what’s the action?

So, in your view, it only applies to speech?

Robert J. Collins:

No, it will also apply to conduct.

It can apply to somebody who walks into the middle of an investigation.

Let’s say they were holding a sign on the side and the officer is doing an investigation of somebody and they walk out in the street and while the officer is interrogating the individual they take the sign and they put it right in front of the officer and the individual.

They interfere with his–

Antonin Scalia:

Does this sign say something on it?

xxx.

Robert J. Collins:

–I don’t think it’s relevant whether the sign would say anything on it, or not.

Antonin Scalia:

It isn’t?

You don’t think it would be speech if it said something on it?

Robert J. Collins:

It would be, it would be speech but it would also be conduct.

Sandra Day O’Connor:

Well didn’t the ordinance–

–It would be conduct?

–In the Lewis case, wasn’t it directed only to obscene or opprobrious language with reference to the police while in the actual performance of their duty?

Isn’t that what the statute or ordinance in Lewis involved?

Robert J. Collins:

Yes, it was directed at, only at language.

It was directed at nothing else.

Sandra Day O’Connor:

At the police.

Directed at the police–

Robert J. Collins:

Directed at the police.

Sandra Day O’Connor:

–In the performance of their duty.

And the court said that’s invalid.

Now what do you have left here that isn’t covered by Lewis?

Robert J. Collins:

I have a whole area of conduct.

I have situations where somebody may drive a car into the middle of an investigation and park it there.

I have instances–

Sandra Day O’Connor:

Well are you now saying that it could not apply then to interruption by speech?

Robert J. Collins:

–No, I am not saying that.

Sandra Day O’Connor:

You think it could apply to the speech, the interrupt?

Robert J. Collins:

Yes.

Sandra Day O’Connor:

And how do you distinguish Lewis?

Robert J. Collins:

I distinguish Lewis on the basis that Lewis, the statute in Lewis was a statute that could not apply to conduct.

It was limited by its words to speech.

The other thing that needs to be made, as far as the ordinance goes, the other point that needs to be made is that in many instances this ordinance is violated by an individual who refuses to obey an officer.

In some respects the ordinance can be characterized as a refusal to move on ordinance.

The other important factor to remember about the ordinance is the ordinance itself does not include trivial and insignificant interruptions within it’s ambit.

There’s testimony in the record by the city’s chief prosecutor that these are not considered to be violations under the ordinance.

So what you have is an ordinance that regulates and prohibits.

And what it prohibits is within a narrow range.

It prohibits conduct intentionally done with the view to interrupt and interfere with a police officer at the time that they’re making their investigation.

There are a number of statutes contained in the appendix to the city’s reply brief that use similar words to the city’s ordinance.

They would use words like hinders, obstruct.

Most of them have scienter requirements.

Some of them are a little different in that they do apply to language by their own terms.

We feel that the city ordinance is valid and these ordinances are also valid.

William H. Rehnquist:

Thank you, Mr. Collins.

We’ll hear now from you, Mr. Wright.

Charles Alan Wright:

Thank you, Mr. Chief Justice.

If the court please I’d like to begin, I suffer from the disadvantage that Mr. Collins does that I was not present at the trial in municipal court, but I think on the basis of what is in the record that several of the answers that he gave were not wholly accurate.

Charles Alan Wright:

We have in the Joint Appendix at page three, the judgment as signed by the state judge on that day in April 1982 and it says:

“This day this cause was called for trial and both parties appeared, announced ready for trial and the defendant pleaded not guilty and the court having heard the evidence is of the opinion that the defendant is not guilty it as charged. “

It seems to me that–

William H. Rehnquist:

Said that could be a form, Mr. Wright, that isn’t inconsistent with Counsel’s oral statement here.

Charles Alan Wright:

–It is certainly inconsistent, Mr. Chief Justice, with his answer to you that the defendant was not tried.

The defendant was surely tried.

It was not a dismissal on some legal reason, it is an entry of the judgment that he is not guilty and to me that amounts to an acquittal.

In response to a question from Justice O’Connor about the status of the ordinance, Mr. Collins said that in an early stage in the code revision process, the thought was that possibly the ordinance should be repealed.

If you will look at the footnote at the bottom of page eleven of our brief, we state the fact that the city, the Houston City Council unanimously passed motion Number 811303 on April 7th, 1981, approving the city legal department’s recommendation to omit the ordinance from what ultimately became the revised 1985 Code of Ordinances.

So that it was not merely a thought that possibly we will repeal the ordinance.

It was an act by the City Council saying in the new Code of Ordinances this is not to appear–

William H. Rehnquist:

Well, Mr. Wright, perhaps I didn’t follow you just then.

I understood the resolution to say it would be omitted from the Code of Ordinances.

Charles Alan Wright:

–That’s right.

William H. Rehnquist:

Are you saying that inexorably means that it was repealed?

Charles Alan Wright:

It would have been had the city attorney not in the request for council action in 1985 said, do not include section 3411A in the new code but do not repeal it also because we are currently involved in a lawsuit.

We might have to pay substantial attorney’s fees if we repealed it.

William H. Rehnquist:

So it isn’t repealed.

Charles Alan Wright:

It is not repealed, no.

No, it is still on the books.

But it is on the books as the record, as the actions of the Houston City Council clearly show only because of the pendency of this lawsuit.

Getting to the constitutional issue itself, it seems to me common ground here that this ordinance has unconstitutional applications.

In its jurisdictional statement at page seven, the city said,

“On its face the ordinance can be applied to a wide variety of activities, some of which concededly cannot constitutionally be punished. “

And again at page eleven of that document,

“Since the state courts may yet limit the ordinance’s application to proscribable conduct. “

And, Judge Higginbotham speaking for the seven dissenting justices, judges in the Court of Appeals,

“Because the Houston ordinance is undeniably susceptible to applications that would impermissibly regulate or proscribe protected speech. “

xxx.

Byron R. White:

That the Court of Appeals held that the conduct involved here was subject to sanction.

Charles Alan Wright:

No, sir.

Byron R. White:

It isn’t?

Charles Alan Wright:

It is not.

Judge Higginbotham in his dissent says that we are all agreed that the ordinance was unconstitutionally applied.

Judge Ruben in the majority opinion does not speak to that issue.

In his majority opinion in the panel he specifically said we are not deciding that issue.

Byron R. White:

So it wouldn’t, so it didn’t make any difference to him whether it was proscribable or not?

Charles Alan Wright:

No, on the view that he took of the case he found it invalid for overbreadth–

Byron R. White:

Right.

Charles Alan Wright:

–did not, as we read the opinion, reach the issue of as applied.

That is the subject of a cross appeal–

–that we took and on which this Court has not yet ruled.

Because [inaudible]–

Byron R. White:

Why did you take a cross appeal?

Charles Alan Wright:

–Pardon?

Byron R. White:

Why did you take a cross appeal?

Charles Alan Wright:

To collect damages since he held that we were not entitled to damages and also that for reasons that we did not fathom that we’re not entitled to have expunged record of Mr. Hill’s arrest.

Byron R. White:

But you don’t, you weren’t appealing against any claim that the ordinance was constitutionally applied in this case?

Charles Alan Wright:

We are taking a cross appeal from the failure to award us remedies to which we believe that we are entitled.

The question was the ordinance constitutionally applied in this case hardly can arise, Justice White, because the ordinance does not apply to this case.

Raymond Hill was acquitted.

The conduct that was the centerpiece of all the discussion here was found by the state court not to be a violation of the ordinance.

The cases here, in response to Justice Marshall’s question because Raymond Hill, having been arrested four times for violation of this ordinance, never having been convicted, has what all of the judges below thought was reason to believe that this is a significant threat that it may happen to him in the future and–

Byron R. White:

xxx standing?

Charles Alan Wright:

–That’s what gives him standing, right.

Byron R. White:

Different from O’Shea and Rizzo and Lyons, those cases?

Charles Alan Wright:

I, the judges below thought so and I submit so, yes.

That this, this is a much stronger case for standing than for example Steffel where there has never even been one arrest, but in which the person sees that his companion is arrested and so he brings the action for a declaratory judgment that–

Thurgood Marshall:

Mr. Wright, anyone who reads the first dozen pages of Mr. Hill’s testimony knows that he’ll be back.

[Laughter]

Charles Alan Wright:

–That, that, that seems to me a fair statement, Justice Marshall.

[Laughter]

Byron R. White:

That’s what the Court of Appeals thought too, I guess.

Charles Alan Wright:

Yes, I think so.

But we have an ordinance that everyone agrees reaches some forms of speech that are constitutionally protected.

On the other side, the argument then really is not is this ordinance overbroad, of course it is.

The question has to be in the terms in which this Court formulates it, is it substantially overbroad?

And there, our submission is that it is hard even to think of a valid application of the ordinance given the Texas preemption doctrine.

The Texas preemption doctrine has been something that is, something that is very hard to persuade the city to acknowledge the reality of.

They know about it.

The city attorney’s memorandum to the, to the city council on why he recommended in 1981 that the ordinance be repealed says because it’s all covered by the Texas Penal Code.

The issue of preemption has been raised by my colleague, Mr. Maness at every stage in this case and yet it is not until the city’s reply brief in this Court that it mentions for the first time that there is even a doctrine that city ordinances cannot work in the same field in which there are state statutes.

William H. Rehnquist:

Well is that necessarily relevant to the constitutional analysis, Mr. Wright?

Supposing that we were to conclude by some mathematical calculation of which you were capable that this ordinance is capable of 70 percent constitutional application, 30 percent unconstitutional application.

If it covered, if it could apply in every situation which by its terms it applied to.

And, and this Court would say under those circumstances it is not substantially overbroad this is all hypothetical.

But then you come in and say, well yes but in 70, in half of that 70 percent it can’t apply because of the Texas preemptious, preemption doctrine.

Is there a case from this Court saying that if a, if an ordinance is preempted by state law it, it is not applicable for overbreadth purposes?

I can’t recall any.

Charles Alan Wright:

I, can’t recall the case either, but I think that–

William H. Rehnquist:

Well, I don’t think there is one.

Charles Alan Wright:

–No, it may well be out on principle that has to be the result I submit, Mr. Chief Justice, that the reason for Broderick v. Oklahoma and for the substantial overbreadth is that if a statute in most of its applications is valid then we’re not going to strike it even though there is some imprecision and the stretch is too far at the outside.

But if it turns out that the statute, though making a pretty verbal display of covering a lot of conduct that validly can be prohibited, in fact doesn’t, and I don’t think it’s a question of 30 percent, I would be very hard put and be happy to hear Mr. Collins help us with a single instance in which the ordinance can validly be applied today as a matter of Texas law to conduct that is not constitutionally protected.

He gave examples in his opening argument that, I think he discounts the full range of Texas statutes.

Article 38.05, for example,–

Byron R. White:

Could you think of some valid applications of the statute if there weren’t this Texas Preemption Doctrine.

Charles Alan Wright:

–Well sure.

Assaulting a policeman.

Byron R. White:

Yes, a lot of them.

There are a lot of them.

Byron R. White:

There would be a lot of them.

Charles Alan Wright:

There would be a lot of them.

Yes.

Byron R. White:

Absent the preemption doctrine would it be substantially overbroad?

Charles Alan Wright:

I think that becomes a very close question because I think there are so many impermissible applications and it is used in practice so often in an impermissible way.

But I think, given the preemption doctrine that there… I have not yet been able to think of a single valid application of the statute to something that would not be constitutionally protected.

Antonin Scalia:

Mr. Wright, is it clear that whether overbroadness is, overbreadth is substantial overbreadth is determined on the basis of proportionality?

What the statute covers versus what the statute, properly covers versus what the statute improperly covers?

Because that seems to me a very strange doctrine that the same statute can be valid or invalid depending upon whether its latched on to another statute that has a lot of valid stuff in it, or not.

This same ordinance could be perfectly all right if it were elevated to the state level and put together with the state statutes that nave preempted the valid portion of it, or arguably that–

Charles Alan Wright:

There is a great deal, Justice Scalia, of the overbreadth doctrine as this Court seems to have formulated it, that I find very strange indeed.

It seems to me that the Court would do well as it twice has in Justice Blackmun’s opinion in Munson and in Justice White’s opinion in Ferber to read Professor Monahan’s article in the 1981 Supreme Court Review, I think it offers analytically sound approach to all of this that gets you out of a lot of the verbal traps of the sort that you have just instanced.

But the real issue is not how do we count up the number of valid and invalid things, it’s really a less restrictive means approach.

Is there a way that the state can accomplish its legitimate purpose of protecting the police without sweeping into interference with people’s rights to express themselves.

That, I think, is the way you ought to come to overbreadth problems.

But here, I submit, there really is very little, if anything, that is a valid application of this statute.

And I was especially pleased to hear my friend, Mr. Collins, refer the Court to page 77 of the Joint Appendix, Officer Kelley’s testimony that it’s only in the course of an investigation you do this.

Because I was re-reading the Joint Appendix this week-end and something struck me that somehow I’d missed the significance of it in all my other preparation of the case.

On that very page, Officer Kelley says that in the course of my investigations I have been interrupted thousands of times without making an arrest.

And the court intervenes; Judge DeAnda says: how often have you made an arrest for violation of this ordinance?

And Officer Kelley says: twice, this case and one other that’s referred to.

It seems to me the danger in an ordinance where an officer feels that I’ve been interrupted thousands of times and he only makes an arrest twice suggests that the real flaw in this ordinance is that it does give such wide discretion to the arresting officer to decide what is an interruption and what is not.

But, even if the person he arrests is acquitted, as Raymond Hill was, to be arrested and to spend 18 hours in jail is not insignificant.

The probability, I hardly need remind this court is that sweeping statutes of this kind are not likely to be used against people who wear three-pieced suits.

They are likely to be used against those who are not at the top of the ladder socially.

I well remember in 1967, the night before the Texas/Oklahoma game, I was in Dallas and observing what I observed, what I thought to be improper police force in arresting a young man for allegedly jaywalking, my friend and I went to every police officer in sight and said: Officer, I want to get your name and badge number for the 1983 action I am bringing Monday morning.

And the officers were all very cooperative and indeed we didn’t have a pen so we’d have to say, would you please lend us your pen and they would.

Now I am glad that the game was played in Dallas and not in Houston because I take it that I would have violated the ordinance, although it seems to me highly unlikely that I would have been prosecuted for violating it.

I’d like to change slightly, it I may, an example that was discussed during Mr. Collins’ argument and put it in the terms that the American Civil Liberties Union did in its amicus brief.

Let us suppose that we have a police officer who is actually writing a ticket and someone comes up to him and says, excuse me officer, a man was shot in the next block.

Charles Alan Wright:

I do not see any way one can read that ordinance without concluding that that is a violation of the ordinance even though it is hard to see how you protect the police or what social value there is in purporting to–

William H. Rehnquist:

–Don’t you think the Texas courts might take that into consideration in construing the ordinance?

Charles Alan Wright:

–It’s awfully hard, Mr. Chief Justice, when you have an ordinance that says, “in any manner interrupt”.

Now there’s been talk here of getting a limiting construction or perhaps belatedly after five years of litigation sending the case over to see if the state court will tell us what it means.

I do not see how a state court can put a limiting construction on it in the sense of any valid interpretative process clear where there is no legislative history of what the Houston City Council meant in 1886 when it originally adopted the ordinance of the words themselves, “in any manner interrupt”.

Those are very broad words.

It is hard to say as a matter of interpretation they apply only to physical conduct or things of that sort.

If there is a need in Houston that is not covered by the state statutes and I commend particularly to the Court the statement we quoted, pages 17 and 18 of our brief, from the committee that drew up the Texas Penal Code in 1974.

It seems to me it’s a sensitive, thoughtful statement of why we aren’t legislating more broadly than we are in this murky constitutional waters of disorderly conducts.

But if there is a need that is met here, the way to achieve that need is not to ask some court to pretend that we are interpreting the intention of the Houston City Council.

It is for the Houston City Council to adopt an ordinance that will address itself to the things it’s concerned about that are not already adequately protected against by state legislation.

Antonin Scalia:

Mr. Wright, the Seconds, this is a hundred year old ordinance and just for fun, I looked up interrupt in the Second Webster’s International and it gives an obsolete meaning of the word.

It says obsolete, but a hundred years is old enough to obsolesce I suppose, and the obsolete meaning is about the same obstruct, prevent, something like that.

Now, you know, if the state court said that’s what it means, obstruct or prevent, would that be close enough to validate it?

I mean there ought to be something that covers actions including speech, I suppose, where an officer is trying to make an arrest and he gets a lot of verbal abuse from someone or someone trying to excite a crowd against the officer.

If you would acknowledge that that’s a legitimate subject now.

Charles Alan Wright:

Of course I would.

But I would go on, Justice Scalia, to say that that’s something, that what is needed is a narrowly drawn, regulatory statute rather than trying to breathe validity into obsolete meanings of the word in a century old ordinance.

Just have the state court interpret it, to put in a modern word for what the old one was, right?

Well is that a valid part of the interpretive process?

I would wonder about that.

And I wonder even whether there is anyway to get a state court interpretation of it.

We now have a, have had since January 1st a certification procedure in Texas.

But whether a Texas court, given their historic reluctance in these matters, is likely in fact to answer some general question about the meaning of the ordinance seems to me quite unlikely.

Byron R. White:

What is your understanding of the relationship between the overbreadth doctrine and the ability to limit an ordinance in one city?

Suppose an ordinance covers A and B, and A may validly be, unconstitutionally be prohibited.

B may not.

And the defendant is accused of A.

But he says that you can’t convict me as long as this statute meets B, reaches B.

I suppose, even though a state court might easily narrow the statute to constitutional proportions that this defendant can’t be convicted.

Charles Alan Wright:

I think–

Byron R. White:

Just because he’s done A.

Charles Alan Wright:

–I think that it would, depends on how the case comes to you.

If the case has come up through a state court, you–

Byron R. White:

xxx this is in the federal court.

This is in the federal court.

Charles Alan Wright:

–In that case you would consider whether there is a realistic possibility of a limiting construction from the state court.

Byron R. White:

What if there was?

Charles Alan Wright:

If there is a realistic possibility then abstention becomes possible–

Byron R. White:

You couldn’t uphold the conviction though.

You would have to, without sending it to the state court.

Charles Alan Wright:

–In federal court, you wouldn’t be upholding a conviction I wouldn’t think.

Byron R. White:

I mean, you wouldn’t uphold the ordinance.

You would say the ordinance is invalid until and unless there is a limiting instruction.

Charles Alan Wright:

You would either say it’s invalid or if there seemed a reasonable, a real possibility of getting an answer by abstention from the state court, you might abstain.

Byron R. White:

Yes.

Charles Alan Wright:

But it seems to that Justice O’Connor in the Hawaiian Housing case to which we heard reference early today made the very important point that there are always possibilities.

Possibilities are not enough for abstention, that the test be something that is realistically likely to happen.

And I think that anyone who studies the practices of the Texas courts in matters of this sort plus the problems in trying to put a construction on this ordinance would have to say that it is not realistically likely to happen.

I would have–

Sandra Day O’Connor:

Well, we could test out the certification procedure, I guess.

Charles Alan Wright:

–Well you can if Mr. Hill wants to be a guinea pig I suppose we’ll have to test the certification procedure.

But I wonder, Justice O’Connor, what question it is that you would put to the Texas Court of Criminal Appeals other than, can you think of a constitutional meaning for this ordinance and if all the Texas Court of Criminal Appeals can say is, well it would be unconstitutional if it applied merely to speech so we will say that it only applies to physical conduct, then in effect what you have done is simply given the state court the first opportunity to decide that you can’t apply it because of the federal Constitution contrary to what Wisconsin v. Constantineau indicates is the appropriate practice.

Antonin Scalia:

Suppose it just said, interrupt means obstruct?

Charles Alan Wright:

I would have considerable difficulty still–

Antonin Scalia:

Then you would have considerable difficulty with, not just this ordinance, but the whole mess of ordinances that are included as an appendix to the reply brief of the state.

Charles Alan Wright:

–I would have, not at all, Justice Scalia, and I am glad that you addressed that point because it seems to me that these ordinances that are contained in the reply brief are a remarkably unhelpful collection of things, many of them on their face, have no possible application.

The very first one, page 1-A, the Federal Statute, whoever forcibly assaults.

Page 2-A, the Alabama and Alaska statutes both are resisting or interfering with arrest and the Alaskan one requires force, risk of physical injury to any person.

That is true of many of those.

Antonin Scalia:

Others that say for example, any person who shall in any way or manner hinder, obstruct, molest, resist or otherwise interfere with any city officer.

Charles Alan Wright:

But that doesn’t help us.

Antonin Scalia:

It’s very hard to get more precise language to prevent what they’re trying to prevent.

Charles Alan Wright:

With respect, I don’t think, I do not agree that it is.

They make rather fun in their brief, of the fact that we say the Texas Disorderly Conduct Statute, 42.01, covers much of the ground that 34.11 does and yet, the Texas Disorderly Conduct Statute is not the ancient, vague sorts of disorderly conduct statute that this Court has worried with in the past.

It bears a clear ancestry from the model penal code and seems to me a remarkably careful statute.

I’m not saying that I couldn’t imagine some constitutional problems with it, but that on the whole I would have no difficulty with it.

But even with regard to those statutes and ordinances here that use words that on their face might appear to reach the kind of situation we are talking about, we don’t know anything until we know, (a) how is that statute or ordinance interpreted, if it has been in the state, and (b) how in fact is it used in practice?

For example, they we here in their appendix at page 23, a Utah statute.

And then they also have a Salt Lake City Ordinance at page 34-A.

In our brief, in the footnote on page 22, we have cited to you a Utah case in which the court says: we cannot believe that the legislature intended to make it an offense merely to interrupt or distract a policeman.

And so, despite the breadth of language in the Utah statute and the Salt Lake City ordinance, what Mr. Hill was arrested for could not have been a criminal offense in Utah.

And I suspect that if we were to make an examination that we would find that either by court interpretation or by administrative implementation that very few if any places in the country would hold that the police can arrest for matters as insignificant as the Houston Police arrest people for by the thousands.

In my view, the court below properly held the Houston Ordinance unconstitutional and we urge you affirm it.

Lewis F. Powell, Jr.:

Professor Wright, I think, obviously you would agree that the part of the ordinance that deals with physical interruption, if that were all that were before us, would be perfectly lawful.

Charles Alan Wright:

Would be what, sir?

Lewis F. Powell, Jr.:

Physical interruption rather than speech?

The pedestrian–

Charles Alan Wright:

That would raise no First Amendment problem.

They concede however, page ten of their reply brief that that portion of the ordinance is no longer enforceable because of the state preemption law.

Lewis F. Powell, Jr.:

–Preemption, right.

So that leaves a speech component of this ordinance.

Are you suggesting you can’t imagine any situation where speech alone could interrupt an officer in the discharge of his duty?

Charles Alan Wright:

Oh, no.

No, I’m not suggesting that at all.

Lewis F. Powell, Jr.:

The problem is one that Justice Scalia raised on how do you write that out?

Charles Alan Wright:

I think that they can if they need too.

I really doubt that they need to.

I think, for example, Section 38.05 of the state statutes on hindering an investigation is a very good statute and other portions.

We have said throughout in our brief, Justice Powell, that of course there are times when even words constitutionally are proscribable.

Charles Alan Wright:

Contrary to what is suggested in reply brief we have never argued that pure speech is all that’s left.

That is if words in themselves are a threat of imminent violence, you can arrest.

If the words are reasonably likely to incite others to imminent violence that also can be made criminal.

Those are the general, normal bounds that the First Amendment puts on the situation in which words by themselves can be regarded as closely enough brigaded with actions so that one is inseparable from the other to use Justice Douglas’s phrase.

We think that you can draw, if it is needed, an ordinance that will reach those situations where the city has a valid concern.

Lewis F. Powell, Jr.:

May I put a very simple example to you?

Let’s assume a motorist, at a very busy intersection with a traffic officer in the center of the intersection directing traffic concluded that the officer had made a dreadful mistake and had directed him or her to move, or not to move at the right time.

The individual gets out of the automobile, goes over to the officer and engages in extended conversation.

Heavy traffic, the officer has to try to direct the traffic and the person is interrupting his efforts to conduct his duties.

Don’t you think that would be unlawful?

Charles Alan Wright:

I think yes.

Lewis F. Powell, Jr.:

And the problem I come back to and this is one you have addressed is now one draws an ordinance that would cover a situation like that and yet not be overbroad.

Charles Alan Wright:

I repeat that I think it can be done, but I would take my stand with the draftsmen of the Texas Penal Code and that portion of the report at page 18 of our brief that in case of doubt it is better to under penalize than to over penalize.

That this is the lesson taught us by our regard for liberty.

That if we have to err, it is better to err in the direction of having the policeman hear too much talk than of arresting people for talking.

You yourself, Justice Powell, in your concurring opinions twice in Lewis pointed out that we should expect the police to be trained and to be better able to resist words that are directed at them than our populous generally.

And it seems to me that that is right and that a policeman carrying as they normally do a gun and with a badge of authority that I think they’re going to be able to take care of themselves.

I think–

Lewis F. Powell, Jr.:

Sometimes it involves language as it occurred here that isn’t just directed to the policeman, but it stirs up a crowd as well and the policeman worries about that.

Now does he have to wait until the crowd is actually moved to violence?

I’m not talking about expressly saying to the crowd, let’s assault the policemen, but violent protests saying, you know, you’re only doing this because you’re picking on someone and the person was innocent and what not.

Does the policeman really have to wait until the crowd gets violent before he–

Charles Alan Wright:

–I think, Justice Scalia, the statute for example that was upheld in Colten v. Kentucky and that seems to me to address itself to that kind of a problem in a much more effective way.

The elements in that statute, as the Court will remember are first, the crime was not merely speaking.

The crime was refusal to disperse in response to a lawful order by a law enforcement officer to do so.

So you had to first be given the order to disperse.

It has to be lawful or it will fail.

It must be with intent to cause public inconvenience, annoyance, or alarm and the Kentucky Court of Appeals had put a limiting construction on it that this ordinance, this statute does not apply to thing that are not predominately speech, but only to those in which speech is an incidental element of a dangerous situation.

And this court accepted that limiting construction.

I think those show the kinds of possibilities there are of protecting these perfectly legitimate situations without allowing the police unfettered discretion to make arrests where it is not legitimate to do so.

William H. Rehnquist:

–Thank you, Mr. Wright.

Mr. Collins, you have eight minutes remaining.

Robert J. Collins:

In response to the argument about the unfettered discretion of the Houston Police Department, I think that the testimony of Officer Kelley in the record is a perfect example of the fact that this discretion is not abused.

Over a thousand instances of interruptions and only two of them did he feel qualified under the terms of the ordinance.

In regards to the fact that the city of Houston may be able to write a more precise ordinance, I feel we have a precise ordinance.

It applies in a very narrow band of circumstances.

There are cases that this Court has held before–

John Paul Stevens:

Mr. Collins, do you, I just want to be sure of one thing.

Do you agree with your opponent’s statistics that the, there are about a thousand arrests every year under this ordinance?

Robert J. Collins:

–Yes, we agree with it.

John Paul Stevens:

And about how many convictions under the ordinance?

Robert J. Collins:

I do not know, Your Honor.

Insofar as the language and what we are prohibiting, we are simply prohibiting utterances intentionally directed at disturbing a legitimate governmental function.

I think this case is very similar to the situation that existed in the Grayned case where the speech, whether it was violent or non-violent, was not allowed where it would tend to disturb a school in session.

I think we have the same type of situation here.

If we have a situation where the substantial reach of the ordinance covers situations that the city has a legitimate interest in preventing and I think in determining substantiality of overbreadth that one needs to weigh the substantial interest that the city has against the potential effect on speech.

Especially the potential chilling effect on speech.

Nowhere today have we heard anything about anyone who this ordinance has prevented them from complaining about the incidents that Mr. Hill wished to complain about.

Those incidents can be complained about in many places and at many times other than at the scene of an arrest.

They can be complained at city council.

They can be complained at by picketing the police department, but the fact that we are involved in a situation that is a highly delicate situation, that of an investigation, detention and arrest, makes it an inappropriate place to allow the unfettered exercise of freedom of speech.

Most of the examples that we’ve talked about today have been examples of an officer walking up to, or an officer writing a ticket and the man comes up and says he was shot in the back and he can be arrested.

Well, I don’t think he would be arrested under that ordinance.

I think a police officer would turn around and say where.

Part of a police officer’s job is communicating with citizens.

But that’s not what we’re dealing here.

It’s not an ordinance that says you cannot talk to a police officer.

It’s not an ordinance that says you cannot annoy a police officer.

It’s an ordinance that says you cannot obstruct a police officer who is involved in an investigation.

Byron R. White:

That isn’t what it says at all, is it?

Robert J. Collins:

It has a scienter requirement and the fact is that the city has applied it only in investigations.

The record is clear as to the police officer saying that that’s what they have to have, intent.

John Paul Stevens:

Mr. Collins, if that’s the case when they’ve repealed it and they’re putting it back in the code, why don’t they re-write it in that fashion?

Cause it surely, on its face, it’s much broader than that.

You would agree to that.

Robert J. Collins:

I would agree on its face it is, but I also think that this Court has in the past taken cognizance of administrative determinations and administrative constructions placed on it.

John Paul Stevens:

I mean, just the very change of the words from execution of his duty to during an investigation which carve out a big chunk of this ordinance.

And I don’t know why the prosecutor doesn’t tell the city counsel that when they’ve got the thing on the shelf over there.

Robert J. Collins:

Again, if we go back and look at what people are charged with and what they’re tried for in the Appendix, it is willfully, intentionally interrupting an officer during an investigation.

Thurgood Marshall:

This great investigation were to find out if a man was drunk or crazy, right?

Robert J. Collins:

No, it was not, Justice Marshall.

Thurgood Marshall:

Well, what else was he investigating?

Robert J. Collins:

He was attempting to find out why the man was standing in the middle of the street, blocking traffic.

Thurgood Marshall:

Well can you give me any other reason than those two?

[Laughter]

Robert J. Collins:

Not at this point in time.

No, Your Honor.

Thurgood Marshall:

Well that’s, you going to investigate to find a third reason?

Robert J. Collins:

I believe the reason that was given, and it’s in the record, is that the individual wanted to stop traffic so he could back a truck out into the street.

In conclusion, what I would like to say is that this ordinance is a constitutional regulation and it protects police officers in the performance of their duties without impinging and is not on a great deal protected free speech.

William H. Rehnquist:

Thank you, Mr. Collins.

The case is submitted.

Marshal Wong:

The Honorable Court is now adjourned until tomorrow at 10:00.