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Arbeitman v. District Court of Vermont

decided: September 16, 1975.

DAVID ARBEITMAN, PETITIONER-APPELLANT,
v.
DISTRICT COURT OF VERMONT; UNIT NO. 5, WASHINGTON CIRCUIT: HON. JOHN P. CONNARN, PRESIDING JUDGE, APPELLEES



Appeal from an order of the United States District Court for the District of Vermont, Albert W. Coffrin, Judge, dismissing petitioner-appellant's application for a writ of habeas corpus challenging petitioner's conviction under a Vermont statute for unlawfully obstructing the entrance to a public building. Affirmed.

Feinberg, Oakes and Van Graafeiland, Circuit Judges.

Author: Van Graafeiland

VAN GRAAFEILAND, Circuit Judge:

On May 11, 1972, appellant, a demonstrator, seated himself in the doorway of the Federal Building in Montpelier, Vermont, with his back against the entrance door. In order for people to enter the building, it was necessary for him to be shoved out of the way. This was accomplished by the building guard pushing on the door from the inside and would-be entrants pulling on it from the outside. Heedless of warnings from the State's Attorney, petitioner remained in this position until arrested, although he knew that anyone trying to gain admittance would be required to push him out of the way.

He challenges his conviction under 13 V.S.A. ยง 1026(5) which reads in part as follows:

"A person who, with intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof;

(5) Obstructs vehicular or pedestrian traffic, shall be imprisoned for not more than 60 days or fined not more than $500.00 or both."

Petitioner's protest, directed originally against the Vietnam war, is now against the constitutionality of this statute. After exhausting his remedies in the State courts of Vermont,*fn1 he petitioned for a writ of habeas corpus in the United States District Court for the District of Vermont. This is an appeal from the order of Judge Coffrin dismissing his petition.

Appellant's argument, in brief, is that the statute is both unconstitutionally vague and unconstitutionally overbroad. Judge Coffrin rejected both contentions, and we find no error in such rejection.

In Cameron v. Johnson, 390 U.S. 611, 616, 20 L. Ed. 2d 182, 88 S. Ct. 1335 (1967), the Supreme Court said that the term "obstruct" requires no guessing as to its meaning. An obstruction which inconveniences or annoys is as readily recognizable. The language of this statute is distinguishable from that of the ordinance found unconstitutionally vague in Coates v. City of Cincinnati, 402 U.S. 611, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971), which prohibited "conduct" of three or more persons assembled on a sidewalk which was "annoying" to persons passing by. Annoying conduct may come in a multitude of "shapes, sizes and colors" and is almost impossible to define or standardize. However, as Mr. Justice White stated in his dissenting opinion in Coates, "Any man of average comprehension should know that some kinds of conduct, such as assault or blocking passage on the street, will annoy others . . . ." Id. at 618.

A similar distinction may be made with regard to the Massachusetts statute held unconstitutionally vague in Smith v. Goguen, 415 U.S. 566, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974), which prohibited contemptuous treatment of the American flag. As the Court pointed out, "What is contemptuous to one man may be a work of art to another." Id. at 573.

An obstruction which inconveniences or annoys is a physical condition which is apparent to all "men of common intelligence." Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926). Recognition of its existence is not dependent upon the "personal predilections" of policemen, prosecutors and juries. Smith v. Goguen, supra, at 575.

In Colten v. Kentucky, 407 U.S. 104, 32 L. Ed. 2d 584, 92 S. Ct. 1953 (1971), the Supreme Court affirmed a conviction under a Kentucky statute which prohibited congregating in a public place and refusing a lawful police order to disperse "with intent to cause public inconvenience, or alarm, or recklessly creating a risk thereof". The Court said:

"We agree with the Kentucky court when it said: 'We believe that citizens who desire to obey the statute will have no difficulty in ...


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