PAPACHRISTOU ET AL. v. CITY OF JACKSONVILLE
CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
Argued December 8, 1971
Decided February 24, 1972
The Jacksonville vagrancy ordinance, under which petitioners were convicted, is void for vagueness, in that it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," it encourages arbitrary and erratic arrests and convictions, it makes criminal activities that by modern standards are normally innocent, and it places almost unfettered discretion in the hands of the police. Pp. 161-171.
236 So.2d 141, reversed.
DOUGLAS, J., delivered the opinion of the Court, in which all Members joined except POWELL and REHNQUIST, JJ., who took no part in the consideration or decision of the case.
Samuel S. Jacobson argued the cause and filed briefs for petitioners.
T. Edward Austin, Jr., argued the cause for respondent. With him on the brief were James C. Rinaman, Jr., and J. Edward Wall.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case involves eight defendants who were convicted in a Florida municipal court of violating a Jacksonville, Florida, vagrancy ordinance. 1 Their convictions [405 U.S. 156, 157] were affirmed by the Florida Circuit Court in a consolidated appeal, and their petition for certiorari was denied by the District Court of Appeal on the authority of Johnson v. State, 202 So.2d 852. 2 The case is [405 U.S. 156, 158] here on a petition for certiorari, which we granted. 403 U.S. 917 . For reasons which will appear, we reverse.
At issue are five consolidated cases. Margaret Papachristou, Betty Calloway, Eugene Eddie Melton, and Leonard Johnson were all arrested early on a Sunday morning, and charged with vagrancy - "prowling by auto."
Jimmy Lee Smith and Milton Henry were charged with vagrancy - "vagabonds."
Henry Edward Heath and a codefendant were arrested for vagrancy - "loitering" and "common thief."
Thomas Owen Campbell was charged with vagrancy - "common thief."
Hugh Brown was charged with vagrancy - "disorderly loitering on street" and "disorderly conduct - resisting arrest with violence."
The facts are stipulated. Papachristou and Calloway are white females. Melton and Johnson are black males. Papachristou was enrolled in a job-training program sponsored by the State Employment Service at Florida Junior College in Jacksonville. Calloway was a typing and shorthand teacher at a state mental institution located near Jacksonville. She was the owner of the automobile in which the four defendants were arrested. Melton was a Vietnam war veteran who had been released from the Navy after nine months in a veterans' hospital. On the date of his arrest he was a part-time computer helper while attending college as a full-time student in Jacksonville. Johnson was a tow-motor operator in a grocery chain warehouse and was a lifelong resident of Jacksonville.
At the time of their arrest the four of them were riding [405 U.S. 156, 159] in Calloway's car on the main thoroughfare in Jacksonville. They had left a restaurant owned by Johnson's uncle where they had eaten and were on their way to a nightclub. The arresting officers denied that the racial mixture in the car played any part in the decision to make the arrest. The arrest, they said, was made because the defendants had stopped near a used-car lot which had been broken into several times. There was, however, no evidence of any breaking and entering on the night in question.
Of these four charged with "prowling by auto" none had been previously arrested except Papachristou who had once been convicted of a municipal offense.
Jimmy Lee Smith and Milton Henry (who is not a petitioner) were arrested between 9 and 10 a. m. on a weekday in downtown Jacksonville, while waiting for a friend who was to lend them a car so they could apply for a job at a produce company. Smith was a part-time produce worker and part-time organizer for a Negro political group. He had a common-law wife and three children supported by him and his wife. He had been arrested several times but convicted only once. Smith's companion, Henry, was an 18-year-old high school student with no previous record of arrest.
This morning it was cold, and Smith had no jacket, so they went briefly into a dry cleaning shop to wait, but left when requested to do so. They thereafter walked back and forth two or three times over a two-block stretch looking for their friend. The store owners, who apparently were wary of Smith and his companion, summoned two police officers who searched the men and found neither had a weapon. But they were arrested because the officers said they had no identification and because the officers did not believe their story.
Heath and a codefendant were arrested for "loitering" and for "common thief." Both were residents of Jacksonville, Heath having lived there all his life and being [405 U.S. 156, 160] employed at an automobile body shop. Heath had previously been arrested but his codefendant had no arrest record. Heath and his companion were arrested when they drove up to a residence shared by Heath's girl friend and some other girls. Some police officers were already there in the process of arresting another man. When Heath and his companion started backing out of the driveway, the officers signaled to them to stop and asked them to get out of the car, which they did. Thereupon they and the automobile were searched. Although no contraband or incriminating evidence was found, they were both arrested, Heath being charged with being a "common thief" because he was reputed to be a thief. The codefendant was charged with "loitering" because he was standing in the driveway, an act which the officers admitted was done only at their command.
Campbell was arrested as he reached his home very early one morning and was charged with "common thief." He was stopped by officers because he was traveling at a high rate of speed, yet no speeding charge was placed against him.
Brown was arrested when he was observed leaving a downtown Jacksonville hotel by a police officer seated in a cruiser. The police testified he was reputed to be a thief, narcotics pusher, and generally opprobrious character. The officer called Brown over to the car, intending at that time to arrest him unless he had a good explanation for being on the street. Brown walked over to the police cruiser, as commanded, and the officer began to search him, apparently preparatory to placing him in the car. In the process of the search he came on two small packets which were later found to contain heroin. When the officer touched the pocket where the packets were, Brown began to resist. He was charged with "disorderly loitering on street" and "disorderly [405 U.S. 156, 161] conduct - resisting arrest with violence." While he was also charged with a narcotics violation, that charge was nolled.
Jacksonville's ordinance and Florida's statute were "derived from early English law," Johnson v. State, 202 So.2d, at 854, and employ "archaic language" in their definitions of vagrants. Id., at 855. The history is an oftentold tale. The breakup of feudal estates in England led to labor shortages which in turn resulted in the Statutes of Laborers, 3 designed to stabilize the labor force by prohibiting increases in wages and prohibiting the movement of workers from their home areas in search of improved conditions. Later vagrancy laws became criminal aspects of the poor laws. The series of laws passed in England on the subject became increasingly severe. 4 [405 U.S. 156, 162] But "the theory of the Elizabethan poor laws no longer fits the facts," Edwards v. California, 314 U.S. 160, 174 . The conditions which spawned these laws may be gone, but the archaic classifications remain.
This ordinance is void for vagueness, both in the sense that it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," United States v. Harriss, 347 U.S. 612, 617 , and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88 ; Herndon v. Lowry, 301 U.S. 242 .
Living under a rule of law entails various suppositions, one of which is that "[all persons] are entitled to be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453 .
Lanzetta is one of a well-recognized group of cases insisting that the law give fair notice of the offending conduct. See Connally v. General Construction Co., 269 U.S. 385, 391 ; Cline v. Frink Dairy Co., 274 U.S. 445 ; United States v. Cohen Grocery Co., 255 U.S. 81 . In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 ; United States v. National Dairy Products Corp., 372 U.S. 29 ; United States v. Petrillo, 332 U.S. 1 .
The poor among us, the minorities, the average house-holder are not in business and not alerted to the regulatory [405 U.S. 156, 163] schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them. Nor are they protected from being caught in the vagrancy net by the necessity of having a specific intent to commit an unlawful act. See Screws v. United States, 325 U.S. 91 ; Boyce Motor Lines, Inc. v. United States, supra.
The Jacksonville ordinance makes criminal activities which by modern standards are normally innocent. "Nightwalking" is one. Florida construes the ordinance not to make criminal one night's wandering, Johnson v. State, 202 So.2d, at 855, only the "habitual" wanderer or, as the ordinance describes it, "common night walkers." We know, however, from experience that sleepless people often walk at night, perhaps hopeful that sleep-inducing relaxation will result.
Luis Munoz-Marin, former Governor of Puerto Rico, commented once that "loafing" was a national virtue in his Commonwealth and that it should be encouraged. It is, however, a crime in Jacksonville.
Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be "casing" a place for a holdup. Letting one's wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous crimes.
The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.
They are embedded in Walt Whitman's writings, especially in his "Song of the Open Road." They are reflected, too, in the spirit of Vachel Lindsay's "I Want to Go Wandering," and by Henry D. Thoreau. 7 [405 U.S. 156, 165]
This aspect of the vagrancy ordinance before us is suggested by what this Court said in 1876 about a broad criminal statute enacted by Congress: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U.S. 214, 221 .
While that was a federal case, the due process implications are equally applicable to the States and to this vagrancy ordinance. Here the net cast is large, not to give the courts the power to pick and choose but to increase the arsenal of the police. In Winters v. New York, 333 U.S. 507 , the Court struck down a New York statute that made criminal the distribution of a magazine made up principally of items of criminal deeds of bloodshed or lust so massed as to become vehicles for inciting violent and depraved crimes against the person. The infirmity the Court found was vagueness - the absence of "ascertainable standards of guilt" (id., at 515) in the [405 U.S. 156, 166] sensitive First Amendment area. 8 Mr. Justice Frankfurter dissented. But concerned as he, and many others, 9 had been over the vagrancy laws, he added:
A direction by a legislature to the police to arrest all "suspicious" persons 15 would not pass constitutional muster. A vagrancy prosecution may be merely the cloak for a conviction which could not be obtained on the real but undisclosed grounds for the arrest. People [405 U.S. 156, 170] v. Moss, 309 N. Y. 429, 131 N. E. 2d 717. But as Chief Justice Hewart said in Frederick Dean, 18 Crim. App. 133, 134 (1924):
The Jacksonville ordinance cannot be squared with our constitutional standards and is plainly unconstitutional.
We are advised that at present the Jacksonville vagrancy ordinance is 330.107 and identical with the earlier one except that "juggling" has been eliminated.
[ Footnote 2 ] Florida also has a vagrancy statute, Fla. Stat. 856.02 (1965), which reads quite closely on the Jacksonville ordinance. Jacksonville Ordinance Code 27-43 makes the commission of any Florida misdemeanor a Class D offense against the City of Jacksonville. In 1971 Florida made minor amendments to its statute. See Laws 1971, c. 71-132.
Section 856.02 was declared unconstitutionally overbroad in Lazarus v. Faircloth, 301 F. Supp. 266. The court said: "All loitering, loafing, or idling on the streets and highways of a city, even though habitual, is not necessarily detrimental to the public welfare nor is it under all circumstances an interference with travel upon them. It may be and often is entirely innocuous. The statute draws no distinction between conduct that is calculated to harm and that which is essentially innocent." Id., at 272, quoting Hawaii v. Anduha, 48 F.2d 171, 172. See also Smith v. Florida, post, p. 172.
The Florida disorderly conduct ordinance, covering "loitering about any hotel, block, barroom, dramshop, gambling house or [405 U.S. 156, 158] disorderly house, or wandering about the streets either by night or by day without any known lawful means of support, or without being able to give a satisfactory account of themselves" has also been held void for "excessive broadness and vagueness" by the Florida Supreme Court, Headley v. Selkowitz, 171 So.2d 368, 370.
[ Footnote 3 ] 23 Edw. 3, c. 1 (1349); 25 Edw. 3, c. 1 (1350).
[ Footnote 4 ] See 3 J. Stephen, History of the Criminal Law of England 203-206, 266-275; 4 W. Blackstone, Commentaries *169.
Ledwith v. Roberts, 1937. 1 K. B. 232, 271, gives the following summary:
[ Footnote 5 ] In Edwards v. California, 314 U.S. 160, 177 , in referring to City of New York v. Miln, 11 Pet. 102, 142, decided in 1837, we said: "Whatever may have been the notion then prevailing, we do not think that it will now be seriously contended that because a person is without employment and without funds he constitutes a `moral pestilence.' Poverty and immorality are not synonymous."
[ Footnote 6 ] And see Reich, Police Questioning of Law Abiding Citizens, 75 Yale L. J. 1161, 1172 (1966): "If I choose to take an evening walk to see if Andromeda has come up on schedule, I think I am entitled to look for the distant light of Almach and Mirach without finding myself staring into the blinding beam of a police flashlight."
[ Footnote 7 ] "I have met with but one or two persons in the course of my life who understood the art of Walking, that is, of taking walks, - who had a genius, so to speak, for sauntering: which word is beautifully [405 U.S. 156, 165] derived `from idle people who roved about the country, in the Middle Ages, and asked charity, under pretence of going a la Sainte Terre,' to the Holy Land, till the children exclaimed, `There goes a Sainte Terrer,' a Saunterer, a Holy-Lander. They who never go to the Holy Land in their walks, as they pretend, are indeed mere idlers and vagabonds; but they who do go there are saunterers in the good sense, such as I mean. Some, however, would derive the word from sans terre, without land or a home, which, therefore, in the good sense, will mean, having no particular home, but equally at home everywhere. For this is the secret of successful sauntering. He who sits still in a house all the time may be the greatest vagrant of all; but the saunterer, in the good sense, is no more vagrant than the meandering river, which is all the while sedulously seeking the shortest course to the sea. But I prefer the first, which, indeed, is the most probable derivation. For every walk is a sort of crusade, preached by some Peter the Hermit in us, to go forth and reconquer this Holy Land from the hands of the Infidels." Excursions 251-252 (1893).
[ Footnote 8 ] For a discussion of the void-for-vagueness doctrine in the area of fundamental rights see Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 104 et seq.; Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim. L. Bull. 205, 224 et seq. (1967).
[ Footnote 9 ] See Edelman v. California, 344 U.S. 357, 362 (Black, J., dissenting); Hicks v. District of Columbia, 383 U.S. 252 (DOUGLAS, J., dissenting); District of Columbia v. Hunt, 82 U.S. App. D.C. 159, 163 F.2d 833 (Judge Stephens writing for a majority of the Court of Appeals); Judge Rudkin for the court in Hawaii v. Anduha, 48 F.2d 171.
The opposing views are numerous: Ex parte Branch, 234 Mo. 466, 137 S. W. 886; H. R. Rep. No. 1248, 77th Cong., 1st Sess., 2; Perkins, The Vagrancy Concept, 9 Hastings L. J. 237 (1958); People v. Craig, 152 Cal. 42, 91 P. 997.
[ Footnote 10 ] President Roosevelt, in vetoing a vagrancy law for the District of Columbia, said:
[ Footnote 11 ] Thus, "prowling by auto," which formed the basis for the vagrancy arrests and convictions of four of the petitioners herein, is not even listed in the ordinance as a crime. But see Hanks v. State, 195 So.2d 49, 51, in which the Florida District Court of Appeal construed "wandering or strolling from place to place" as including travel by automobile.
[ Footnote 12 ] J. Hazard, The Soviet Legal System 133 (1962):
[ Footnote 15 ] On arrests for investigation, see Secret Detention by the Chicago Police, A Report by the American Civil Liberties Union (1959). The table below contains nationwide data on arrests for "vagrancy" and for "suspicion" in the three-year period 1968-1970.
3-year averages ...... 102,170 69.6 82,808 56.5 184,978 126.1
* Reporting agencies represent population of: 1968 - 145,306,000; 1969 - 143,815,000; 1970 - 151,604,000.
Source: FBI Uniform Crime Reports, 1968-1970. [405 U.S. 156, 172]