(concurring).
I concur, the while conceding that this may be a close case, and that the arguments of the dissents about law and order and the integrity of the constabulary, are peals of optimism for a desired socio-political community. Nonetheless, I am convinced that they have neglected the liberty bell, whose chimes presumably reach the ears not only of the shackler but the shack-lee, and presumably reflect each’s constitutional prerogative of equality, — the hallmark of which is reasonableness. I take it that any set of circumstances that outdistances such sounds might be said to constitute a journey out of the realm of constitutionality as we understand it.
In this case the officer in the first instance said he was going to issue the defendant a citation for driving while his license was suspended. He did not arrest him, or threaten him with an arrest. Millions of citations are issued daily without an arrest. The defendant did not object to a citation, nor did he resist an arrest at that time, but drove away a short distance followed by the officer, who arrested him, claiming he resisted arrest, — not borne out by the facts.1
The confrontation here was attended by the officer drawing his pistol, — necessary, perhaps, in a television scenario, but hardly under the circumstances of this case. True it is, as the dissent urges, that the circumstances of- a case may have nothing to do with the constitutionality of a statute, —but they may have everything to do with the question of unconstitutionality of a statute applicable to the facts and basic issue here. They had a lot to do with Hitlerism, and in my opinion, the subject statute conceivably may be knocking at the door of some such eventuality. In such case I differ with my dissenting learned colleagues to the effect that the prevailing presumption is in favor of constitutionality justifying a six-month stretch in jail. In my book, where there is a statute that sanctions an arrest of a citizen by a “recognized” law enforcement officer, popularly looked upon as a person in a blue, brass-buttoned suit, ornamented with a silver' star over his heart (but who may be an imposter in rented garb), which citizen is minding his own business, as here, where the non-interference was non-violent but simply by driving away, “regardless of whether there is a legal basis for the arrest or not, as was the case here, just has to be unconstitutional. In such case, the presumption in favor of constitutionality successfully is rebutted, and as generally is the rule, disappears, and the presumption of innocence that always attends a defendant, destroys the former, the latter to persist. Facts well may be instrumental in its persistence.
The dissents say there is no constitutional question here since there is no search and seizure problem involved. The main opinion points to Terry v. Ohio 2 and other authorities 3 that seem to disagree, — which authorities have my preference over such unsupported generality.
*803I respectfully disagree with the gratuity in one of the dissents to the effect that “Nowhere in the statute can it be found that an unreasonable arrest is permitted or encouraged.” I suggest the subject statute both permits and encourages an unreasonable — and I think unconstitutional — arrest wlicii it says it is unlawful to interfere with a “law enforcement official,”4 who tries to make an arrest "whether there is a legal basis for the arrest” or not. In other words, a peaceful citizen is forced by legislation to become his own jail bait if he “interferes” 5 with a law enforcement official making an arrest, no matter how outrageous, vicious or stupid it may be, — and if such citizen uses means that the statute seems by implication or legerdemain, to be an arbitrary exercise- of poor judgment, but in doing so interferes with an officer, —it costs him six months deprivation of his liberty.
Consider also, the case where an overzealous, eager officer obviously is using excessive force to subdue a teenager to the point where bystanders honestly believe he is about to kill him, or where a drunken officer with a badge is arresting and beating a perfectly innocent citizen, or where a cop at a football stadium goes berserk and at the point of a gun attempts to arrest everyone in front of him, or a game warden, in a remote wilderness area, out of sheer suspicion manhandles a hunter minding his own business, or an off-duty law enforcement officer in civilian clothes, but “recognized” as a Bobbie, tries to arrest his neighbor on a trumped-up charge, —or this very case, where the officer arrested an innocent person who had a valid license, who offered no interference whatever except to touch his fellow townsman, an officer, and actually walked away from an incident^ that the officer, not he, created.
The facts and hypothetics recited here are not for the purpose of deciding this case on the facts, which one of the dissents erroneously said we could do, but to demonstrate the vagueness of the statute, and the door it opens ostensibly, on a pretext of false constitutionality, to events leading to an unconstitutional invasion of the constitutional right against unreasonable seizure, a guaranteed right of privacy and a constitutional assurance of right of free locomotion and freedom from harassment and incarceration, — all in virtue of a statute that presents a ridiculous discrimination in favor of a law enforcement official and against an erstwhile law-abiding citizen who becomes a jailbird at the expense of the mistaken, and what is worse, the illegal act of an arresting official. To me this adds up to an Eleventh Commandment, to go hence and defy the law hiding behind a badge, and let him who is without sin, but interferes in the lawlessness, to serve the sentence.
It seems to me to be somewhat of a departure from reality and practicality and even morality to say a statute is constitutional that says one person can violate the law and by virtue of such illegal act induce another to indulge in a confrontation which he did not seek and get six months because a possible tormenter, acting illegally, goaded him into it. It is a rather superficial answer to say, as do the dissenters here, that having perhaps unwittingly “interfered” in an arrest, with the sometimes ludicrous and chameleonic meaning that *804someone “might” attach to the word, the “interferer,” acting in good faith, not having read this funny statute, should be content to lose his job, his good name in the community, his liberty for six months, and his respect for the establishment, in exchange for the great privilege of hiring a lawyer, going to court to seek damages (which are no substitute for loss of freedom), — all because one of the countless hordes of law enforcement officials not only committed a pediculous, but illegal rip-off in making what is worse, the arrest of a person who at common law had a perfect right to resist, and who, but for this paternalistic, autocratic legislation in a free society, could resist arrest, and who as of now, can resist arrest if it happens to be classified as a citizen’s arrest.
This statute does not have any semblance of a reasonable, constitutional statute prefaced by a warning requirement of some kind, a reasonable request that the citizen show something, or that under the circumstances “probable cause” appears to justify an arrest, or “that there is reason to believe an offense has been or is about to be committed.”
One of the dissents asserts that it appears that the majority “is influenced by the facts of the case and seeks an impermissible way to correct what it considers a bad verdict.” Although this statement may be permissible gratuity as to others in the majority triumvirate, it is not so as to this author, since he was influenced by the provisions of the statute as being a constitutionally impermissible way to correct what I consider to be a bad and vague treatment of a citizen’s constitutional right.
One of the dissents suggests that “The main opinion is at some pains to explain how the police officer could have handled this apparently arrogant and belligerent defendant in a different manner.” It does not take much imagination to answer that question. The officer easily could have checked with the Motor Vehicle Department, to determine if his fellow townsman had a valid license, in which event he would have found that he did have such license. Or he calmly could have handed a citation to defendant or placed it on his car, or left it at his home, or mailed it to him. It is suggested that the dissent “is at some pains” to explain why the officer did not do one of the things mentioned above, or why impetuous, unreasonable police officer threatened the defendant by drawing his gun, and why he committed a breach of the peace in the process of what proved to be an unlawful arrest, — an act the prevention of which the dissents both say was the very purpose of the statute they say is salutary in keeping the peace.
In passing, it is noted that neither of the dissents cites any authority that really supports the rule provided in the statute here. One, Miller v. State, a 1969 Alaska case (462 P.2d 421), at first blush would seem to. It may be pointed out, however, that the court there laid down a rule of law having no codification, which was similar to the provisions of our statute, saying that at least one state court had recommended such a rule as a matter of its common law development, being State v. Koonce, 89 N.J.Super. 169, 214 A.2d 428, 1965, — an intermediate court but not the court of last resort, the New Jersey Supreme Court. However, the Miller case, supra, pulled its punches on any constitutionality question, which was not even raised in the case, when it said “It should be noted that the rule we formulate today has no application when the arrestee apprehends bodily injury, or when an unlawful arrest is attempted by one not known to be a peace officer. Quite different problems are then present.” On the strength of such hedging, it is suggested that this case, the only one cited in the dissent, certainly would be undispositive in an attack on a statute’s constitutionality on the ground of vagueness.6
*805I am of the opinion the statute cannot stand a true test of constitutionality based either on a claim of 1) vagueness or 2) unreasonable seizure.
.One of the dissents suggests that we must ignore the facts, they being the function of the jury. Another suggestion seems apropos that without the facts, the unconstitutionality of a statute is a subject only of a declaratory judgement that ignores the fact of constitutional right of liberty.
. Footnote 1, main opinion.
. Footnote 2, main opinion.
. Which could be numbered in the dozens, such as sheriffs, deputies, city policemen, town policemen, school crossing guards, constables, town marshals, judges of various hues, game wardens, treasury agents, tax collectors, campus policemen, truant officers, forest rangers, justices of the peace, district court judges, Supreme Court Justices, sanitarians, agricultural agents, special police, meter maids, etc., ad infinitum.
. “Interferes” carries with it a multiple connotation so vague as to render a statute unconstitutional, in my opinion. Does one interfere with an officer if he heckles him, refuses to leave the scene of a demonstration in which a person is being arrested, is a curiosity seeker at a fire where a suspected arsonist is being apprehended, a physician attempting to administer to a dying man who is being arrested, etc.?
. Two other cases cited in the dissent, Rosensberg v. State, and State v. Byrne, are Florida cases decided in Appellate Division Courts, inferior courts not having the authoritative weight of the Florida Supreme Court, having the same subordinate stature of State v. Koonce, supra.