State of North Carolina                                                         District Court of Justice

County of Orange                                                                               CR 056243

 

State of North Carolina

           v.

 

Tamara Tal

 

Motion and Supporting Memorandum for this Court to Take Notice

That Chapel Hill Ordinance 11-61 Is Unconstitutional on its Face,

Or in the Alternative, As Applied in this Case.

 

            Now comes Defendant Tamara Tal to respectfully move the Court to take notice that     Chapel Hill Ordinance 11-61, under which she was arrested, is unconstitutional on its face because of its ambiguity, vagueness, and over-breadth, and because it did not provide adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute.  In the Alternative, Defendant moves the Court to take notice that Chapel Hill Ordinance 11-61 under which she was arrested is unconstitutional as applied in this case.  In support of this Motion, Defendant provides the Court this Memorandum.

 

Background

 

            After African American people were freed from slavery in 1865, many ex-slave states, including North Carolina, passed Black Codes to give the all-white police departments power to arrest people for “vagrancy” and other ill-defined “crimes” if they assembled in groups of 3 or more and failed to disperse quickly enough to suit the police. These purposely ambiguous statutes, which gave total discretion to Southern police and prosecutors, remained on the books until the 1960’s when a series of Supreme Court cases declared them unconstitutional.  For example, in 1963 the Supreme Court declared unconstitutional a Georgia statute that was used to arrest seven young men playing basketball in a public park when they asked the police why they were being ordered to disperse. Wright v. Georgia, 373 U.S. 284 (1963)

 

   Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution. The command of the officers in this case was doubly a violation of petitioners' constitutional rights. It was obviously based, according to the testimony of the arresting officers themselves, upon their intention to enforce racial discrimination in the park. For this reason the order violated the Equal Protection Clause of the Fourteenth Amendment. [cite omitted] The command was also violative of petitioners' rights because, as will be seen, the other asserted basis for the order - the possibility of disorder by others - could not justify exclusion of the petitioners from the park. Thus petitioners could not constitutionally be convicted for refusing to obey the officers. If petitioners were held guilty of violating the Georgia statute because they disobeyed the officers, this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute.  (Id. Emphasis Added.)

 

History of Chapel Hill Ordinance 11-61

 

            The history of the ordinance we challenge today has some peculiarly similar origins as the Georgia failure to disperse law.  In 1961, when Black students from Lincoln High School began picketing on Franklin Street, accompanied by a few white college students, faculty members and ministers, the Chapel Hill Council rushed to pass a series of laws against “boisterous” conduct, “loitering,” “habitual loafing,” “idleness,” and  loafing and idling while under 16 years old.  (Chapel Hill Ordinance Art. I, §§11-1 through 4.)  At the same time the Town Council passed several ordinances to prevent any mass picketing.  Picketing in the town could be done “only on sidewalks;” the number of picketers was limited to “not more than ten (10) pickets on one block;” and  picketers must be spread “at least 15 feet from each other.”  Picket signs cannot be more than 2 x 2 feet big, and they could only contain words that were “not defamatory in nature or would not tend to produce violence.”  (Chapel Hill Ordinance Art. I. §§11-53 through 58)  To give the town police enforcement powers to “disperse crowds” that might block the sidewalks, the Council passed the earlier version of the Ordinance at issue here:

 

Sec. 11-61.  Dispersal of crowds; refusal to disperse.

            Whenever the free passage of any street, or sidewalk, in the town shall be obstructed by a crowd, the persons composing such crowd obstructing said passage shall disperse or move on when directed to do so by a police officer.  It shall be unlawful for any person to refuse to so disperse or move on when so directed by a police officer as herein provided.  

Sec. 11-61, 1961

 

            The crowd (“large gathering of people” according to The Oxford Desk Dictionary 1995 Ed.) that was the target of this ordinance can be compared to the “assemblage” in the N.C. criminal statute called “failure to disperse” which provides a law enforcement officer may issue a command to disperse if “he reasonably believes that a riot, or disorderly conduct by an assemblage of three or more persons, is occurring.  The command to disperse shall be given in a manner reasonably calculated to be communicated to the assemblage.” N.C. Gen. Stat. 14-288.5 

The officer must have had “reasonable grounds to believe that disorderly conduct was occurring by an assemblage of three or more persons” when he gave the order to disperse. State v. Thomas, 28 N.C. App. 495 (1976)

 

            Chapel Hill’s 1961 ordinance and the 1969 State criminal statute are narrowly tailored tools for law enforcement to disperse (“Scatter widely” in “different directions” Oxford Desk Dictionary, 1995)  a “crowd” or “assemblage” that an officer reasonably believes, after he has instructed it to disperse, has failed to disperse and is continuing to obstruct traffic or engage in other forms of disorderly conduct, the officer may then arrest persons who did not comply. Brooks v. N. C. Dep’t of Cor., 984 F. Supp. 940 E.D. N.C. 1997

Amended in 1998 to Deal with “25-30 Aggressive Panhandlers” on Franklin Street.

            The ordinance at issue here, however, has a different origin with a constitutionally suspect purpose.  It was passed on September 28, 1998, after the Town Manager reported to the Council there were “25-30 aggressive panhandlers who intimidate passersby in downtown Chapel Hill.” (p. 9,  Chapel Hill Town Council Minutes, 9/28/98)  He “suggested modifying terminology so that the Town can use the ordinance to assist in controlling crowds and to regulate behavior of individuals impeding walkways and public sidewalks.” (Id., p. 10)   The Council voted unanimously to approve an ordinance aimed at the 25-30 people who “beg, panhandle, or solicit alms or contributions in a public place in a manner so as to intimidate another person.”  (Id., p. 20)  Immediately thereafter, the Council adopted AN ORDINANCE REVISING SECTION 11-61 CONCERNING FREE PASSAGE ON THE SIDEWALKS (98-9-28/O-4.3) which read:

BE IT ORDAINED BY THE COUNCIL OF THE TOWN OF CHAPEL HILL as follows:

     Section 1.  Section 11-61 of the Town Code is hereby amended as follows:

“Sec. 11-61.  Dispersal of crowds; refusal Refusal to disperse when obstructing passage.

     Whenever the free passage of any street, or sidewalk, alley, or public walkway in the town shall be obstructed by a crowd  person or persons, the person or persons composing such crowd  obstructing said passage shall disperse or move on when directed to do so by a police officer.  It shall be unlawful for any person to refuse to so disperse or move on when so directed by a police officer as herein provided.”

     Section 2.  This Ordinance shall be effective upon adoption.

This the 28th day of September, 1998.

            This ordinance, formerly narrowly tailored to give law enforcement officers the power to disperse a “crowd” that was “obstructing” passage on a street or sidewalk, was now ambiguously and vaguely worded to give a law enforcement officer unlimited discretion to arrest single persons who were obstructing “free passage” and who had refused to do so when directed by police.        This ordinance, on its face, or in the alternative as applied in this case, “falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute.”  Wright v. Georgia, 373 U.S. 284 (1963)

 

            Defendant here had just arrived at a small demonstration that was just breaking up.  She was helping people find rides back to their homes.  There was no obstruction of any traffic or pedestrians on any roadway or sidewalk.  The crowd or assemblage had not engaged in any disruptive behavior.   A small delegation that tried to deliver a letter to the manager of the targeted establishment left immediately when he made it clear he would not accept their written letter.  They decided to mail him the letter.  At that time, with no reasonable or unreasonable basis for any kind of order, a police officer picked out the defendant at random. 

 

Conclusion

 

            The infirm ordinance should be declared unconstitutional.  Defendant believes it is important to raise this issue at each level of this case.  The charge should be Dismissed.

 

This the 14th day of April, 2008

 

                                                           Respectfully Submitted

 

                                                           Alan McSurely, Attorney for Defendant

                                                           Legal Redress Chair, Chapel Hill-Carrboro NAACP

                                                           Legal Redress Chair, State of North Carolina NAACP

 

                                                           Certificate of Service

 

  I certify that I served the above Motion and Memorandum of Law on the State of North Carolina by hand-delivering it to the prosecuting attorney, this the 14th Day of April, 2008.

 

                                                           __________________

                                                           Alan McSurely, NCSB 15540