Shuttlesworth v. City of Birmingham

PETITIONER: Fred L. Shuttlesworth
RESPONDENT: City of Birmingham
LOCATION: Former location of Newberry's Department Store

DECIDED BY: Warren Court (1965-1967)
LOWER COURT: State appellate court

CITATION: 382 US 87 (1965)
ARGUED: Oct 11, 1965
DECIDED: Nov 15, 1965
GRANTED: Mar 01, 1965

Earl McBee - for the respondent
James M. Nabritt III - for the petitioner

Facts of the case

On April 4, 1962, black citizens of Birmingham, Alabama were engaged in a boycott of downtown department stores; the Birmingham police -- including Patrolman Byars -- were aware of the boycott. At about 10:30 A.M., Byars observed a group of four to six people including noted activist Fred L. Shuttlesworth walking toward the intersection of 19th Street and Second Avenue, the location of the front entrance of Newberry’s Department Store. Byars walked through Newberry’s and through the front entrance, where he observed a group of ten or twelve people congregated in one area. They were standing and talking with Shuttlesworth apparently at the center of the conversation.

Byars observed the group for a minute or so from inside Newberry’s, then left the store and told the group to move on and clear the sidewalk. Some of the group began to leave. Byars repeated his command, and Shuttlesworth asked, “You mean to say we can’t stand here on the sidewalk?” Three more officers arrived on the scene, and Byars told the group that they would have to clear the sidewalk or he would arrest them for obstructing its use. By this point, only Shuttlesworth remained at the scene. Shuttlesworth repeated his question, and Byars told him he was under arrest. Shuttlesworth then attempted to walk into Newberry’s, but Byars followed him in and arrested him. Shuttlesworth offered no resistence.

On April 5, Shuttlesworth was tried in the recorder’s court of the city of Birmingham. The court charged him with obstructing free passage on the sidewalk and with refusing to comply with a police order to move on in violation of two sections of the Birmingham General City Code. He was sentenced to 180 days of hard labor and $100 fine and costs. He appealed for a trial de novo in the district court. Byars’ initially testified that the group’s presence impeded pedestrian traffic, but on cross-examination he testified that the group only blocked off about half the sidewalk. The court affirmed Shuttlesworth’s conviction, rejecting his assertions that the ordinance was unconstitutionally vague and overbroad, that the prosecution’s case was not supported by evidence, and that Shuttleworth’s conduct was protected by the First and Fourteenth Amendments. The Alabama Court of Appeals affirmed Shuttlesworth’s conviction, holding the evidence sufficient to support the verdict. The Alabama Supreme Court denied Shuttlesworth’s applications for certiorari and rehearing.


(1) Is an ordinance making it an offense to stand, loiter or walk on any city sidewalk in a way that obstructs others’ free passage over that sidewalk unconstitutional as applied to Shuttlesworth?

(2) Is an ordinance making it an offense to stand or loiter on a city sidewalk after a request by a policeman to “move on” unconstitutional as applied to Shuttlesworth?

Media for Shuttlesworth v. City of Birmingham

Audio Transcription for Oral Argument - October 11, 1965 in Shuttlesworth v. City of Birmingham

Earl Warren:

Number 5 Fred L. Shuttlesworth, petitioner, versus City of Birmingham.

Mr. Nabrit you may proceed.

James M. Nabrit, III,:

Mr. Chief Justice, may it please the Court.

The petitioner in this case, Reverend Fred L. Shuttlesworth, a Negro Minister and well known Civil Rights leader in Birmingham, Alabama was arrested by four or five police officers at 10:30 in the morning on Wednesday, April 04, 1962, for loitering and failing to obey the orders of a policeman on a corner in Downtown Birmingham, Alabama.

Shuttlesworth was convicted in the Recorder's Court, and again convicted after a trial de novo in the Circuit Court and was sentenced to 180 days hard labor, six months, and an additional 61 days hard labor in default of a fine in courts.

This Court granted certiorari to review the judgment of the Alabama Court of Appeals, which affirmed the conviction, rejecting petitioner's federal constitutional claims.

Now I would state the facts in some detail.

William J. Brennan, Jr.:

[Inaudible] put on the offense?

James M. Nabrit, III,:

There were two ordinances mentioned in the complaint.

The limit I think for all misdemeanors under the code is six months and a $100 fine.

William J. Brennan, Jr.:

So we got -- this sentence is the maximum then, is it?

James M. Nabrit, III,:

The maximum that you could get for one offense.

Now, I would state the facts in some detail, because they are I think important to an appreciation of petitioner's arguments that the Birmingham's laws were unconstitutionally vague as applied to him that there was no evidence to support the conviction.

Now the testimony in the record is in sharp conflict, but I will relate the police version referring only slightly at the beginning of the certain uncontradicted defense testimony about matters prior to the actual arrest incident.

The defense version of the facts was totally irreconcilable with the policeman's case.

The defense claim was that the police case was a complete fabrication, an attempt to -- the arrest was an harassment.

Now Shuttlesworth and his companion, Reverend James Phifer, were arrested shortly after they left the Federal District Court in Birmingham, where they were engaged in litigating a prior disorderly conduct prosecution after a remand from this Court.

The two ministers had been jailed for over a month, this record reveals, early in 1962 and on February 26, this Court remanded the case to the Federal District Court with an order which resulted in Shuttlesworth's eventual release.

Now these proceedings, this record indicates, were a widely publicized headlines story in the local papers.

And there is no dispute that Shuttlesworth was well known in Birmingham for Civil Rights activities and well known by the Police Department, which had arrested him on a variety of occasions in connection with Civil Rights activities, some of the arresting officers testified, they knew about this.

Now on April 04, 1962, after leaving the Federal Court, which is located at 5th Avenue in 19th Street in Birmingham, Shuttlesworth and Phifer, followed by four other Negro men, walking down 19th street from 5th Avenue towards 2nd Avenue, the heart of the Birmingham's Downtown shopping center area, about 10:30 in the morning into the business district, and this morning there were very few Negroes on the streets in Downtown Birmingham, because the Negroes were boycotting the Downtown stores and there is testimony that this group was conspicuous.

Now the group attracted to the attention of the police officer Robert Byars who was the traffic officer assigned to 3rd Avenue in 19th, but wasn't at his post, he was half a block away, standing on 19th Street by an alley.

Byars said he saw this group walking down the street, they weren't doing anything, weren't violating any laws, just walking South towards 2nd Avenue.

At this point, Byars entered a store, which sits on the corner of 2nd and 19th and runs -- the alley entrance to this store, Newberry's Department Store and followed the petitioner's path by Byars going through to the store, and he followed parallel to their path, reaching -- the petitioners and Byars reaching the corner of 2nd Avenue in 19th street.

When officer Byars got to the corner, he says that he stood inside looking out through the glass door, and by now the group which he said was 5 or 6 people had reached 10 or 12.

And he saw 10 or 12 persons all congregated on the corner, he said standing and listening and talking, that Shuttlesworth was among them and the group was just standing and talking mostly to Shuttlesworth, it was in Byars words, doing quite a bit of talking himself.

Policeman Byars says incidentally that he didn't know Shuttlesworth, although he acknowledged he had seen him on television, seen his photograph and read about him in the papers and he also heard about this boycott.

Potter Stewart:

He didn't know him or didn't recognize him or both?

James M. Nabrit, III,:

He says both, he said he didn't know – said seen him on television.

Byars also maintained that he didn't even know the race of this group on the corner, he didn't notice it in the trial, he didn't know what race this group was, although, several other officers testified they were all Negroes.