concurring.
I agree that Shuttlesworth’s conviction must be set aside. But I am concerned lest the opinion of the Court be considered as indicating, that Shuttlesworth can constitutionally be convicted of violating the General Code of the City of Birmingham, Alabama, on the facts here presented. Any such conviction would violate basic constitutional guaranties. I would make this clear now.
The Court’s opinion does not challenge the constitutionality of § 1142 of the Birmingham Code as that section was construed by the Alabama Court of Appeals two years after Shuttlesworth’s conviction. The opinion may be read to imply that if Shuttlesworth is now put to trial for violation of § 1142, as construed, the vice of the present conviction may be eliminated. I would make it clear that the Federal Constitution forbids a conviction on the facts of this record, regardless of the validity of the ordinance involved.
*100I agree that, as construed by Alabama two years after Shuttlesworth was convicted, § 1142 cannot be held unconstitutional on its face. I agree that if there were a rational basis for charging Shuttlesworth with violating the section as so construed, he could be retried if Alabama should choose so vigorously to protect the sidewalks of Birmingham. Civil rights leaders, like all other persons, are subject to the law and must comply with it. Their calling carries no immunity. Their cause confers no privilege to break or disregard the law.
But there is here no possible basis for a conviction which would be valid under the Federal Constitution. The accused provision would be unconstitutional as applied to Shuttlesworth’s facts even after the plastic surgery by Alabama’s Court of Appeals in 1964. Middlebrooks v. City of Birmingham, 42 Ala. App. 525, 170 So. 2d 424.1 A revision of the formula does not and cannot change the facts; and those facts do not permit the State to jail Shuttlesworth for his actions on April 4, 1962.
Taking the prosecution’s version of the facts, it appears that Shuttlesworth was one of a group of 8, 10 or 12 2 persons who at 10:30 a. m. on April 4, 1962, were accosted by a patrolman after they had stood for a minute or a minute and a half at 19th Street and 2d Avenue in Birmingham. They occupied one-half of the sidewalk. They were conversing among themselves. There is no suggestion of disorder or of deliberate obstruction of pedestrian traffic. After the first command by the pa*101trolman, the group commenced to move away. The officer repeated his command, and Shuttlesworth said, “You mean to say we can’t stand here on the sidewalk?” After the third command, Shuttlesworth said, “Do you mean to tell me we can’t stand here in front of this store?” The officer then told Shuttlesworth he was under arrest. Shuttlesworth said he would go into the store. The officer followed and arrested him. There was no resistance. By this time everybody in the group except Shut-tlesworth had moved away. The entire incident took less than four and one-half minutes, from arrival of Shuttlesworth and his friends at the corner to his arrest.
For this, Shuttlesworth was tried, convicted and sentenced to spend half a year at hard labor and to pay a fine of $100.
In my view, there is nothing in the facts which justified an arrest and conviction. Prior to the officer’s command the situation was that a small group of people occupying one-half of the sidewalk were engaged in orderly conversation. Promptly upon the officer’s command, the group began to disperse and only Shuttlesworth remained. He, alone, cannot be held to have blocked the sidewalk. His rhetorical questions may have irritated the patrolman; but a policeman’s lot is not a happy one — ■ and certainly, in context, Shuttlesworth’s questions did not rise to the magnitude of an offense against the laws of Alabama. If one were to confine oneself to the surface version of the facts, a general alarm for the people of Birmingham would be in order. Their use of the sidewalks would be hazardous beyond measure.
But this, of course, is fiction. It is facade for a narrower, but no less disagreeable, truth. On April 4, 1962, the Negroes of Birmingham were engaged in a “selective buying campaign” — an attempted boycott — of Birmingham’s stores for the purpose of protesting discrimination against them. Shuttlesworth and his companions were *102Negroes.3 They were standing in front of a department store. Shuttlesworth, as an officer who participated in the arrest testified, was a “notorious” person in the field of civil rights in Birmingham.4
In my view the net effect of the facts in this case is inescapable. Shuttlesworth’s arrest was an incident in the tense racial conflict in Birmingham. This may explain the arrest, but it adds nothing to its lawfulness. There is no basis in the facts and circumstances of the case for charging that Shuttlesworth was “blocking free passage” on the sidewalk, Middlebrooks, supra, at 527, 170 So. 2d, at 426, or that he culpably refused to obey an order of an officer to move on, or remained after such an order so as to justify arrest, trial or conviction. Any attempt to punish Shuttlesworth in these circumstances would, in my view, violate the Fourteenth Amendment of the Federal Constitution.
As the Court’* opinion herein points out, in Middlebrooks, the Court of Appeals stated that its narrowed construction of the ordinance had been the “ratio decidendi” of Shuttlesworth, decided a year earlier. But there is no indication of this in Shuttlesworth itself.
Officer Renshaw testified there were 8, 10 or 12 people, in the group (R. 40). Officer Byars testified to 10 or 12 (R. 17).
Testimony of Officer Renshaw (R. 49). Officer Byars testified that he didn’t know what color they were (R. 27, 36).
The principal arresting officer testified that he did not recognize Shuttlesworth, but he had seen his picture on television. He had heard of him, had read that he had frequently been arrested, and that he had been in the Birmingham jail. Shuttlesworth’s walk on April 4, 1962, started during a recess in a federal court civil rights trial in which he was involved. The trial had been publicized.