Before we begin this discussion, let me make one thing absolutely clear: regardless of the law that I write about, the police can back up their orders with force, sometimes even lethal force, which will usually be upheld by courts. So while you may have an absolute legal right to do something, you may not wish to exercise that right out on the street because of danger to your health or life. As hard as it may be, be courteous to the police officer while you try to remember their name and badge number. As soon as you can, you should then contact attorney Paul A. Ksicinski.
Assume for a moment you are a judge. You are confronted with an interesting case. The evidence at trial shows that 7 African American defendants undertook a “prayer pilgrimage”. The purpose of the pilgrimage was to visit church institutions and other places in Milwaukee and the Midwest to promote racial equality. You were to move from place to place by city bus.
Unfortunately because of the violence at Mayfair shopping center and protests across Milwaukee freeways by Black Lives Matter, the police issued a new emergency rule that said groups of 5 or more African Americans could not wait together at a bus stop to avoid eruptions of violence. The evidence at trial shows the defendants knew about the emergency police order and the 7 of them waited at the bus stop together anyway. Based on the fact that 7 African American defendants were waiting at the bus stop, police officers approach the group and ask them to break up the group based on the emergency order and to avoid violence. The evidence at trial shows that the 7 African American defendants said they were peaceful and engaged in no boisterous or objectionable conduct. The police testified, in contradiction to the defendants, that a crowd gathered and that imminent violence was likely. The police arrest the defendants NOT for the purpose of preserving the custom of segregation in Milwaukee, but solely for the purpose of preventing violence. The group of 7 refuse to break up when ordered by police. Based on that law, you find the 7 defendants guilty of resisting or obstructing an officer.
Move forward in time in federal court where you as the judge are being sued for violating the civil rights of the defendants. The issue of immunity has been decided against you and you are being deposed. A deposition by the way is the out-of-court oral testimony of a witness that is reduced to writing for later use at trial. You are, of course, sworn to tell the truth.
You are asked during his deposition whether a citizen has the right to disobey an unreasonable police order. More than likely your answer would be that a citizen should obey the officer and later seek redress after the fact. Many trial courts would agree with you and is shared by many District Attorneys, police officers, and even high level judges. By the way, this fact scenario is drawn from Pierson v. Ray, 386 U.S. 547 (1967)
You would get this answer despite all the Supreme Court cases which say otherwise. In Edwards v. South Carolina, 372 U.S. 229 (1963) the defendants, 187 African Americans, while peacefully demonstrating against racial discrimination, marched through the State House grounds, normally open to the public, in a manner previously approved by the police officials. No disorder or blocking of traffic occurred, although a group gathered to watch the protest. When ordered by the police to disperse, the demonstrators, not moving, were arrested for breach of the peace; they refused to “break it up.” Despite the dissent’s view that the dispersal “request” was “reasonable” under the circumstances, Edwards v. South Carolina, at 241 (dissenting opinion) and despite a failure by the majority to find that the order was arbitrary (although they doubted its reasonableness), the Supreme Court’s opinion concluded:
… [I]t is clear to us that in arresting, convicting, and punishing the petitioners under the circumstances disclosed by this record, South Carolina infringed the petitioners’ constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances. Id. at 235
The Court reversed the convictions, deciding that the interpretation of “breach of the peace” by the courts of South Carolina was unconstitutionally broad. Edwards v. South Carolina, 372 U.S. at 234 (a breach of the peace is a violation of public order, a disturbance of the public tranquility, by an act or conduct inciting to violence). Likewise, convictions cannot be sustained on the ground that failure to obey the command of a police officer constitutes a traditional form of breach of the peace. One cannot be punished for failing to obey a command which violates the Constitution, and the police officers’ command violated the Equal Protection Clause of the Fourteenth Amendment, since it was intended to enforce racial discrimination in the park. Wright v. Georgia, 373 U.S. 284, 291-92 (1963) (six African Americans were convicted of breach of the peace for peacefully playing basketball in a public park in Savannah, Ga., customarily used only by white people and not dispersing when ordered to do so by the police People v. Galpern, 181 N.E. 572, 574 (N.Y. 1932) (A refusal to obey [a police officer’s] order can be justified only where the circumstances show conclusively that the police officer’s direction was purely arbitrary and was not calculated in any way to promote the public order.)
Similarly, In Cox v. Louisiana, 379 U.S. 536 (1965) a CORE protest on the sidewalk across the street from the courthouse in Baton Rouge, where it had been directed to demonstrate by the chief of police, was led by the Reverend B. Elton Cox. As in many such buildings throughout the United States, the courthouse is the home for not only for homeless people but also houses other public offices in addition to the court. Shortly prior to this demonstration, several African American students had been picketing to increase Negro employment for the Christmas holidays. When Cox told his students, who were demonstrating against the arrests of the day before, that it was time to eat,’ the sheriff, with rare intuition (Garner v. Louisiana, 368 U.S. 157 (1961) (where African Americans did nothing else to attract attention to themselves except to sit at the lunch counters, the convictions were so totally devoid of evidentiary support as to violate the Due Process Claus) had been decided a few days before), deemed such a direction inflammatory, and ordered the demonstrators to disperse. When they did not, he directed the police to use tear gas to disperse the students and Mr. Cox. The defendant’s conviction for breach of the peace (affirmed by the lower courts) was unanimously reversed. Again, none of the opinions referred to the sheriff’s order as purely arbitrary. The practice in Baton Rouge of allowing local officials unfettered discretion in regulating the use of streets for peaceful parades and meetings notwithstanding the prohibitions contained in the statute against obstructing public passages abridged appellant’s freedom of speech and assembly in violation of the First and Fourteenth Amendments. Cox v. Louisiana, 379 U. S. 553-558.
Finally in Shuttlesworth v. Birmingham, 394 US 147 (1969), the Supreme Court struck down a Birmingham, Alabama ordinance that prohibited citizens from holding parades and processions on city streets without first obtaining a permit. Even though Justice Stewart’s opinion for the Court mentioned that “the Supreme Court of Alabama performed a remarkable job of plastic surgery upon the face of the ordinance”, the Court reversed Shuttlesworth’s conviction because the circumstances indicated that the parade permit was denied not to control traffic, but to censor ideas. The ordinance was administered so as, in the words of Chief Justice Hughes, “to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought . . . immemorially associated with resort to public places.”