Handley v. City of Montgomery

Citations: 401 So. 2d 171; 1981 Ala. Crim. App. LEXIS 2230

Court: Court of Criminal Appeals of Alabama; March 30, 1981; Alabama; State Appellate Court

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Roger Handley and others were convicted of unlawful assembly and parading without a permit in Montgomery, receiving six-month sentences and a $250 fine. They opted for a non-jury trial based on stipulated facts, subsequently granted one year of unsupervised probation and filed an appeal. Central to the appeal is the constitutionality of Article XVII of the Montgomery City Traffic Code and Montgomery City Ordinance No. 100-76, which necessitates a parade permit for public safety, allowing the city to manage police staffing, traffic control, and logistics effectively. 

Mayor Emory Folmar testified that the agenda for city council meetings is closed by noon on Fridays to ensure transparency and preparation for upcoming sessions, with all related matters requiring prior notice. This procedure has historically prevented parade permits from being granted without compliance with the ordinance, except in emergencies. The Chief of Police, Charles Swindall, corroborated the need for advance notice due to the heightened security risks associated with parades organized by groups like the Ku Klux Klan, citing past incidents involving weapons. He emphasized the necessity for adequate police presence and preparation for such events to ensure public safety.

A Klansman allegedly stated intentions to march towards the Capitol in Montgomery, Alabama, prompting concerns about public safety and potential National Guard mobilization if the Governor consented. On August 3, 1979, Klansman Roger Handley inquired about a parade permit at the Department of Public Safety but was informed that the deadline to submit items for the upcoming City Council agenda had passed. He was advised to seek sponsorship from a Council member to bypass the rules. Handley was seen speaking with Council President Willie Peek at the August 7, 1979 Council meeting, though the conversation's content was unknown. After a federal court denied a temporary restraining order against the parade, Handley defied the law by marching without a permit and was subsequently arrested, causing traffic disruptions. City Clerk John Baker would testify that Handley had requested a parade permit on August 3 but was told the application deadline had lapsed. Handley claimed the parade aimed to highlight perceived civil rights violations against white individuals due to reverse discrimination. His application was not placed on the agenda due to City Ordinance 176, which was acknowledged as valid. Handley met with Peek to request agenda inclusion but was refused. A civil action was filed on August 10 in federal court for a restraining order to permit the parade, but the City defended its actions, and both the district and circuit courts denied the requests.

Handley engaged in discussions with the Alabama Department of Public Safety for about one month regarding a parade from Selma to Montgomery, during which state officials did not coordinate with Montgomery city officials. On August 11, 1979, a group associated with the Ku Klux Klan attempted to march in Montgomery but was stopped by police and informed that a permit was required to parade. The following day, Handley, along with around 200 others, marched on Highway 80 and was arrested for parading without a permit, violating the Montgomery Traffic Code. The assembly was classified as a public gathering under Article XVII of the Traffic Code. Montgomery City Ordinance No. 54-72, effective July 1, 1972, established the Traffic Code, while Ordinance No. 100-76 amended procedures for permit applications for parades, stipulating that no public demonstration could occur without a permit from the Board of Commissioners. The ordinance detailed the application process and conditions under which permits could be granted or denied, specifically excluding funeral processions from these requirements.

Public assembly is defined as any organized gathering, such as parades, demonstrations, or processions, that occurs on public thoroughfares and requires significant traffic management, police presence, or extensive planning beyond simple notification to authorities. These assemblies aim to express causes, opinions, or protests on various issues, commemorate events, or celebrate occasions, regardless of their peaceful nature or absence of noise. 

The term "residential area" refers to zones adjacent to public ways that are primarily occupied by residences within a 300-foot radius. "Near" indicates proximity within sight or hearing distance. 

Definitions include "lude" as obscene or immoral; "obscene" as something offensive to decency and capable of corrupting moral standards; "profane" as irreverent towards a deity; "libelous" as false publications that could damage reputations; "insulting or fighting words" as language that may provoke violence; "epithet" as descriptive terms that characterize individuals; and "unlawful demand, purpose, end or objective" as actions that undermine Alabama's public policy, provided such policy is constitutional. 

Lastly, "church" refers to any building used for worship by various religious groups, including but not limited to Jewish and Christian denominations.

The Board of Commissioners of Montgomery, Alabama, is authorized to issue written permits for public assemblies to individuals, organized groups, unincorporated associations, or corporations that are qualified to do business in Alabama. Applications for permits must be submitted in writing and will be reviewed at regular or special meetings. The application must include detailed information such as the purpose, type, date, times, expected number of participants and vehicles, the location, and descriptions of any signs or songs to be used. The application must be signed by an authorized agent of the applying entity.

The issued permit will reflect the details provided in the application and may include modifications to ensure compliance with relevant regulations. Terms in the permit will focus solely on the safety of participants and public convenience. Violating any permit terms is prohibited.

Section 17-6 outlines various offenses that can occur during public assemblies in Montgomery, Alabama, including the use of obscene language, disobedience to traffic regulations (unless directed by police), and intentional public urination or defecation. Offenders may face fines up to $200 or imprisonment for up to six months, or both, at the discretion of the municipal judge. 

Section 17-7 prohibits public assemblies in residential areas, though peaceful picketing and parades passing through these areas are allowed. 

Section 17-8 bans public assemblies at or near churches, with exceptions for lawful meetings and parades that merely pass by.

Section 17-9 establishes conditions under which permits for public assemblies can be denied. This includes assemblies aimed at promoting crime, carrying signs or chants that advocate illegal actions, or using language deemed lude or likely to incite violence. However, expressions of unpopular views are protected from being classified as such.

The proposed public assembly in Montgomery, Alabama, may be prohibited if it is too large for police control, significantly disrupts commerce or public ways, occurs in restricted areas, or poses a clear and present danger to life, property, privacy rights, or public peace. Participation in such assemblies without a prior permit is considered a violation. If an assembly becomes violent, the senior police officer present must call for a dispersal, and failing to comply is also a violation. Any act of aggression, such as throwing objects at police, is presumed to indicate violence within the assembly. No city official can waive these regulations, which are to be administered uniformly by the Board of Commissioners. Violations are cumulative with other laws and can result in fines of $1 to $200 or up to six months of hard labor. The appellant argues that the ordinance requiring a permit for public demonstrations infringes on constitutionally protected rights to free speech and assembly. A motion for a temporary restraining order to permit the assembly was denied, affirming the city's authority to protect its citizens from violence.

The Court emphasizes the need to balance the First Amendment rights of the plaintiff against the City of Montgomery’s police powers to protect public safety. While First Amendment rights generally hold significant weight, the Court recognizes the City’s interest in regulating parades to prevent confusion, manage crowds, suppress violence, and ensure traffic flow. The plaintiff seeks to conduct a parade without the required permit, which the City enforces. The Court asserts that a minimum of four days' notice is reasonable for the City to evaluate such requests, and the presumption of constitutionality lies with the City’s ordinance unless proven otherwise. It affirms that municipalities can impose regulations on public spaces to safeguard traffic and public order, even as First Amendment rights are acknowledged. Historical case law supports the notion that reasonable time, place, and manner restrictions on expressive conduct are permissible to protect compelling public interests.

The Supreme Court in Cox v. New Hampshire established that civil liberties, as protected by the Constitution, coexist with the necessity of public order. Municipalities possess the authority to regulate public highways to ensure safety and convenience, which is not inherently contradictory to civil liberties. Restrictions aimed at promoting public convenience can be justified, and individuals cannot ignore lawful regulations, such as traffic lights, based on personal beliefs. The Court clarified that municipal permit requirements affecting First Amendment rights are not automatically unconstitutional; instead, issues arise when the discretion of permit issuers is unbounded. A law that imposes prior restraints on First Amendment freedoms without clear, objective guidelines is deemed unconstitutional. The Court has consistently condemned systems lacking precise standards due to the risks of censorship. The assessment of Article XVII of the Montgomery Traffic Code hinges on whether it imposes an unconstitutional prior restraint or is sufficiently detailed with reasonable restrictions. The state must justify any restrictions, particularly those that are prior restraints, which are subject to strict scrutiny. The Court concluded that Article XVII’s provisions are not overly broad and contain clear standards, thus serving the legitimate interests of the City of Montgomery without imposing impermissible prior restraints. The relevant sections of Article XVII regulating permits for public demonstrations are specified in sections 17-1, 17-3, and 17-14.

Sections 17-3 and 17-14 of Article XVII of the Montgomery Traffic Code derive from sections 9-18(2) and 9-18(14) of Montgomery City Ordinance No. 22-65. While Article XVII is not identical to Ordinance No. 22-65, many sections are similar. The Federal District Court previously deemed Ordinance No. 22-65 "valid on its face," and this document similarly finds Article XVII to be valid. Sections 17-1 and 17-3 mandate that the Board of Commissioners must issue a permit upon a proper application, without discretion to withhold it for lawful purposes. Section 17-14 requires the Board to administer permit applications fairly and consistently. Contrary to the appellant's claims, Section 17-1 does not grant the Chief of Police the authority to issue or deny parade permits; it merely allows for recommendations regarding the use of streets. 

Article XVII establishes mandatory procedures for the Board of Commissioners, differing from the struck-down Birmingham General Code § 1159, which granted broad discretion to officials. The provisions of Article XVII are designed to uphold constitutional First Amendment rights without giving unrestrained power to officials. It is noted that while Article XVII is valid on its face, its application could potentially lead to unequal treatment, as highlighted in the Smith v. City of Montgomery case, where an earlier ordinance was found unconstitutional as applied to a small, orderly group of picketers. In that instance, simple notice to city officials was deemed sufficient for permit approval.

Requiring a formal application for a parade permit from the city commissioners was deemed unreasonable given the circumstances surrounding the event, where a large, armed group was reportedly marching toward the Capitol, posing a significant threat to public safety. Intelligence indicated that the group included individuals with weapons and expressed intent to harm, raising concerns for both public and Klan member safety. The need to ensure safety justified the city's requirement for a permit rather than merely notifying city officials. The application process under Article XVII and Ordinance No. 100-76, which mandates a permit for public demonstrations and requires applications to be submitted by noon on the Friday before a Tuesday City Council meeting, was found to be reasonable. This process necessitates a minimum of four days between application and the event, with up to eleven days in typical scenarios. The appellant’s proposed parade on August 12, 1979, would have been subject to these time requirements, indicating that adequate planning and safety measures were necessary and that the application process was not discriminatorily applied.

The latest time for filing a parade permit application under Ordinance 100-76 was noon on August 3, 1979, for consideration by the City Council on August 7, 1979, requiring a nine-day wait before the parade. This timeframe is not deemed an unreasonable prior restraint on First Amendment rights, as established by Supreme Court precedent in Freedman v. Maryland. The principle from Freedman also applies to assembly cases, reinforcing the need for reasonable procedures to facilitate expression. The Montgomery City Council's concerns regarding parade preparation were deemed legitimate, as proper planning is necessary to ensure public order and safety. The time limitations of Ordinance 100-76 are seen as reasonable, given the potential consequences of a poorly organized event. Additionally, it is concluded that an individual does not need to commit other offenses to violate Article XVII of the Montgomery Traffic Code. The court affirms the constitutionality of Article XVII as applied to the appellants and upholds the imposed time limitations. The Montgomery Circuit Court's conviction is affirmed, but the case is remanded for a determination of the appropriate fine, with the maximum fine being $200. All judges concurred in the decision.