48                          JOURNAL OF PROCEEDINGS                  [Dec. 16

able regulations and prohibitions imposed in the interest of the community.
As an example of a valid restraint on the conduct of an individual, Mary-
land courts have repeatedly held that a failure to obey a reasonable and
lawful request by a police officer, fairly made to prevent a disturbance to
the public peace, constitutes disorderly conduct. Harris v. State, 237 Md.
299, 206 A. 2d 254; Sharpe v. State, 231 Md. 401. In each case, the Court
held that the gist of the crime of disorderly conduct is the doing and
saying, or both, of that which offends, disturbs, incites, or tends to incite
a number of people gathered in the same area. Bachellor v. State, 3 Md.
App. 626, 240 A. 2d 623.

In failing to limit the police officers of Charles and Queen Anne's
Counties from issuing "cease" orders in only those instances when "linger-
ing" or "loitering" might endanger the public peace (as is already provided
in Article 27, Section 123 of the Maryland Code, 1967 Replacement
Volume), the Bill is not only in derogation of the common law crime of
disorderly conduct, but also arbitrarily renders otherwise innocent conduct
as criminal in nature.

When subjecting House Bill 1435 to close scrutiny, as it should be
when it attempts to strip a citizen's liberties by a mere malum prohibition
test, it would be possible to convict a citizen who refused the "cease"
demand of an officer, while standing on a street corner watching the traffic
of people without obstructing same; while innoculously sitting on a bench
in a public park; while "lingering" in a drug store waiting for a prescrip-
tion to be filled; or while taking too much time in finishing his meal at a
restaurant that is "open to the public".

When considerin gthe constitutionality of a provision similar to the
Bill under consideration, the Supreme Court of the United States in
Shuttlesworth v. City of Birmingham, 382 U.S. 87, 15 L.ed. 2d 176, 86
S.Ct. 211, examined an ordinance which made it, "..... unlawful for any
person to stand or loiter upon a street or sidewalk ..... after having been
requested by any police officer or move on." Mr. Justice Stewart, in
delivering the opinion of the Court invalidating the ordinance, stated:

"Literally read, ..... this ordinance says that a person may stand on
a public sidewalk in Birmingham only at the whim of any police
officer of that city. The constitutional vice of so broad a provision
needs no demonstration. It 'does not provide for government by
clearly defined laws, but rather for government by the moment-to-
moment opinions of a policeman on his beat'. Cox. v. Louisiana, 379
U.S. 536, 579,13 L.ed. 2d 471, 501, 85 S. Ct. 453."

As written, therefore, House Bill 1435 violates Article 23 of the Mary-
land Declaration of Rights by depriving a person of his liberty and free-
dom of locomotion without due process; violates the First and Fourteenth
Amendments of the United States Constitution as it arbitrarily deprives a
person of his liberty and freedom of locomotion consistent with a citizen's
privileges and immunities; and violates the due process clause provisions
of both Constitutions by failing to make a distinction between conduct
calculated to do harm and conduct essentially innocent.

Very truly yours,

/s/ Francis B. Burch,
Attorney General.