Appellants Brief — Palmer v. City of Euclid

Supreme Court brief1971

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SUPREME COURT, U. S.

IN THE

‘Supreme Court of the United States

OCT OBER TERM, 1970

Me ie ’

JAMES PALMER, ~ :

Appellant,

<i; |

‘TY OF EUCLID, OHIO,

/ | Appellee

APPEAL FROM THE, SUPREME COURT OF OHIO

BRIEF FOR APPELLANT

STANLEY K. LAUGHLIN, JR. - NIKI Z. SCHWARTZ

General Counsel, American 1320 The Superior Building

Civil Liberties Union of Cleveland, Ohio 44114

Ohio '. JosHua J. KANCELBAUM

203 East Broad Street

Columbus, Ohio 1320 The Superior Building:

Cleveland, Ohio 44114

Of Counsel. . Counsel for Appellant.

Washington, 0. C Thee mates 202 Sa

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INDEX -

QPINION BELOW229)*.. 00. oe fee

RUMOICTION 55.056 350 e ce. PAE Pion bite re

CONSTITUTIONAL PROVISIONS AND.

ORDINANCE INVOLVED .. 2... 22 0--,--05 200. al

QUESTIONS PRESENTED...........: Ons Site

STATHMIES i f2305 Doo, Pee. eee eee

‘SUMMARY’ OF. ARGUMENT ..... eee eae

ARGUMENT: — =

1. THE EUCLID SUSPICIOUS PERSONS ORDI-.

NANCE IS SO. VAGUE AND EACKING IN ‘ Ps

ASCERTAINABLE STANDARDS OF GUILT .

- THAT IT FAILS TO GIVE FAIR NOTICE OF

. WHAT IS PROHIBITED, INVITES ARBI-

TRARY AND DISCRIMINATORY ENFORCE- -

MENT AND.SWEEPS WITHIN ITS AMBIT

CONSTITUTIONALLY PROTECTED CON-

DUCT, SO AS TO VIOLATE THE GUARAN-.

TEE OF DUE PROCESS OF LAW Stl Oe Late ren

A.” The Ordinance Is So Vague That It Fails = *,

To Give Fair Notice Of What Is Pro-

Cle OE 5)5G bie wo peeks tee oe SPP ae

(2) “Found abroad at late or unusual hoyrs

in the night without-any visible or law- .

“ful business”.,......... barrens, * eee

_(3) “Does not give satisfactory account of. aS

nuit CRE G ERE E ee ee

(4) “Suspicious et ibis oma ath '

B. The Vagueness Of The Ordinance Invites

Arbitrary And Discriminatory Enforcement.....

Cc. The Vagueriess Of The Ordinance Permits

Its Application So As To Punish And Deter

Constitutionally Protected Conduct ....°...7..

NO =—

An -& W Ne

BAI Ae

Ps PURPOSES, OTHER MEANS, LESS DESTRUC- |

TIVE OF PERSONAL’ LIBERTY, ARE AVAILA-

ee | Re Te Sey pore ON Mere oe a cre |

CONCLUSION ............ eee 33

; TABLE OF. AUTHORITIES

‘Cases: i | | |

Albertson v. Subversive Activities Control Board, 382 ; ;

SE ee ch: eran es Pee er “hava lie 7, 24, 25, 27

- Alegata v. Commonwealth, 353 Mass. 287, 231, N.E.2d ee

201 (1967) Rea une cee eee Sy 5 Oe

Aptheker v. Secretary of State, 378 U.S. 500 (1964) .°..... £0, 32

Arnold v. City and posaty of Denver, -- | Cobo. as

a. ‘MRS 598 OD 8 1. 8. Sor eee a

ee Baker v. Bindner, 274 F. Sapp! 658 (WD. Ky. 1967)... 14,15

4 Beck v. Ohio, 379 U.S. 89 (1964) 2.2.2... ter ops eee

Bell v. Maryland, 378 U.S. 226 (1964)........... any

Boyd y. United States, 277 U.S. 438 (1928) ........: ate eee

5 ie tone 6 Se | |

HL: THE PROVISION COMPELLING A SUSPECT

‘TO “GIVE A SATISFACTORY ACCOUNT OF

’ HIMSELF” UNDER PAIN OF FINE AND/OR:

_IMPRISONMENT: VIOLATES THE PRIVILEGE

‘AGAINST SELF-INCRIMINATION AND IN-

VALIDATES THE EUCLID SUSPICIOUS PER: .

SONS ORDINANCE ON iTS FACE AND AS

OEE ee I OE ie.

ll. . THE EUCLID SUSPICIOUS PERSONS ORDI-

‘NANCE UNCONSTITUTIONALLY INFRINGES __.

FREEDOM OF MOVEMENT BY ALLOWING AR-

REST, DETENTION, AND CONVICTION ON

SUSPICION IN VIOLATION OF THE FOURTH

’ AND. FOURTEENTH AMENDMENTS .....:...... 5 ae:

IV. . THERE IS NO NECESS!TY FOR THE EUCLID .

SUSPICIOUS PERSONS ORDINANCE, AND TO

_ THE EXTENT THAT IT SERVES LEGITIMATE

‘Buchanan-v. Warley, 245-‘US. 60(1917) ....0.0...-0005 . 2X

ete eet ae (itt)

City of Cleveland-v. Forrest, 10 Ohio Misc. 98, 223 ieee ae ee i.

N:E. 2d 661 (Mun: Ct. 1967)... 6b eee eee Secs anekeeo)

City of Columbus v. ‘atin 173 Ohio St. 81, 180 Spee Bs

A SEAR orcs heh ce ks Rae |

_ City of Portland v. Goodwin, 187 Ore. 409, 210 P.2d eho

Fi... Mea ne Riera er Leen a ere mate a

City of Seattle v. Drew, 70 Wash. 24 405, 423 P.2d | ‘i

SUI ad Site ices 2 oa Seen Prete me

Cline v. Frink Dairy Co., 274 US. 4445 (1927) Me ens oa a

Commonwealth v. Lehan, 347 Mass. 197, 196 N.W. sey : “se a |

840 (1964) .....-. iret? ea FN pene Co ee ‘rere - Renee / e

Connally v. General Constr. Co., 269 US. 385 (1926)..... »+ 9,10.

* Cox v. State of Louisiana, 379 U.S. 536 (1965).........-. .,16

Culombe v. Connecticut, 367 U.S. 568 (1961) ..2......52 0 24

. Davis v.-Mississippj, 394-U.S. 721 (1969) .....-. 4... 0 5. se % Coa |

* Dominguez. v. City and County of Denver, 147 Colo. ote

- 233, 363 P.2d 661 (1961) ee wore ere ek eae peer: 1S

Garrity v. New Jersey, 385 U.S. 493 (1967) ECR 28

. Gaston County, North Carolina v. United States, 395 | :

" US. 285 (1969) See RE RETR Eee CRE CT cae ae ae

_ Giaccio v. Pennsylvania, 382 us. 399 (1966) palates is Be 10, 16, 23.

Griffin v.. California, 380 U.S. 609 (1965) Pras kee a eH 25

Harris v- District of Columbia, 132 A.2d 152 (D.C. Mun, : Pig

‘App. 1957), rev'd on other pire tie Fa

DE, 200, 251 820913 (9S) ss ca os

“Headley v. Selkowitz, 171 ‘So? 2d 368 (Fla.: 1965) . eeu s ae ee!

Hunter v. Erickson, 393 U.S. 385. (1969) | ee ts Pere ee 2 ae

_ Jones’v. Alfred H. Mayer €o., 392 US. 409 (1968) ......... Jee saa

‘-. Kelley: v. United States, 111 US. App. ‘DC. 396, 298. . as

’ F.2d 310 (1961) .. 2... ee elena so aee Ge 12

"Kent v. Dulles, 357 U.S. 116 (1958), heat pope ay 8, 29 ;

_ Landry v. Daley, 280 F. Supp. 968.(N.D. Ill. 1968). ...-,...12, 15° |

Lanzetta v. New Jersey, 3 306 US. 451 (1939) (athe is Voy a, 1S...

(iv)

Page

Lilburn’s Trial, 3 How. St. Tr. 1315 (1637-45) ...2......: 2%

M@lloy v. Hogan, 378 US. 1 (1964). .........0... Ses * 25

Maschetti v. United States, 390-U.S. 39 (1968)... ! Seewes 25

McCarthy v. United States, 25 F.2d 298 (6th Cir, 1928).._.. 28

“McLaughlin v. Florida, 379 US. 184 (1964) ..2.....4.....° 19

* Miranda v. Arizona, 384 US. 436 (1966). ."......0...... 24, 28

B® NAACP. v. Button, 371 US. 415 (1963) ........, 0... 10

. Olmstead v. United States, 277 U.S. 438 (192%)... 77.0... ’ 34

People v. Craig, 152 Cal. 42, 91 P. 997(1970) ........ », w

People v. Merolla, 9 N.Y. 2d 62, 172 N.E. 24 541 (1961).... 13

~ Peters v. New York, 392 US. 40 (1968) 0.2.50. I

_ Ricks v: District of Columbia 414 F.2d 1097 (DC. Cir

PEE el ye. ) NP ES I Ss ee aera pe 12, 15

~ Scott v. District Attorney, Jefferson Parish, State of ,

Louisiana, 309 F. Supp. 833 (ED. La. 1970)......... 12, 13, 15

‘Shelley v. Kraemer, 334 US. 1 (1948)................. cc

Shelton v, Tucker, 364 US. 479 (1960)............ Loe RR

Shuttlesworth v. City of Birmingham, 38> US. 87

oo Epes | 4 rs ey 2) ane . 10, 16

Spevack v. Klein, 385 US. $09 (1967)... décecceceeeee. » 9.25

State v. Terry, 5 Ohjo App. 2d 122, 214 N.B, 2d 114 domes

MON orien 65 ss cSass cnc VePiRiceyaads as 9, 32

Tebidn v. Shott, 382 U.S. 406 (1966)... ... eee 26

Terry v, Ohio, 392 US. 1 (1968).............. beens passim

United States v. L.-Cohen Grocery Co,, 255 US. 81 ‘r

| Pe Oe ey ee ee Ae oe

United States v. Margeson, 259 F. Supp. 256 (E.D.

A, ans Se ae are Dey 15

Winship, In re, - US. 908. Ct.1068 (1970....... " 0”

Winters v. NewYork, 333 US. 50741948). ..... er ee ae

United States Constitution: o-

Fourth Amendment ."..:.0.0.0.00 00000 lees eee. 8, 29, 32

Fi Page

Fifth Amendment’... .. ; is sii eek le bo . . 23, 26, 28 -

Fourteenth Amendment ,.......---++00-. 8, 19, 21, 28, 29

" United States Statutes: | ras 4

RS. § 1977; 42 USC. § 1981 (1958 ed.).........---6. 19

82 Stat..73, 42 USC. § 3601-3619 (1970 ed.) .. Boch: 20

State Statutes:

New York Code of Crim. Proc. § 1800... yr or ree 32

' Ohio Rev. Code § 4112.0%H)..2.7...5. dina vp Gas 2

Ordinances of City of Euclid yo! errr eRe ge (+i

Miscellaneous. |

Adams, “Field Interrogation”, Police, March-April, ;

v0). ) eer ee ree eee ee 22

American Law: Institute, Model Code of Pre-Arraignment :

Procedure, Tent. Drft. No. 2, % 2.01(2), 2.002(5)..... 25, 26, 32

American Law Institute, Model Penal Code,§2506.....:.. 26

American Law Institute, 1961 Proceedings............... 26

_ American Law Institute, 1966 Proceedings....:....... ee a

Amersterdam, 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 (1967)... . . 10, 21, 25, 27,

Amsterdam, Note, The Void-for-Vagueness Doctrine in

the Supreme Court, 109 U. PA. L. REV. (1960)...... we +) ae

Black’s Law Dictionary (4th ed. 1957) ..............044. Tl

Chafee, Three Human Rights in the Constitution of 1787

(1956) ..2..2-64- we ehadben ae bdct dpe nhed eo wus 29

Douglas, Vagrancy and Arrest on n Suspicion, 70 YALE °

SS re eA Pree riers fer ere “30

_ F.B.L., Uniform Crime Reports - 1968, Table 30 ......... » - oP

Foote, Vagrancy-Type Law and Its Administration, 104

U. PA. L. REV. 603 (1956) ....... ao ails Serre 27, 30, 33

Gilston and Podell, The Practical Patrolman (1959) ....... ~ @

Mi) | '

eS ;

” Kah, The “Rest of Us” in the “Policing the Police”

Controversy, 57 J. CRIM. L. C. &P. S. 244

NS eg ee oe oo a

La Fave, Penal Code Revision: Considering the Problems

and Practices of the Police, 45 TEXAS L. REY.

‘434 (1967) ..... wre’ Serre ae TRENT ae eee 30

La Fave, “Street Encounters” and the Constitution:

Terry, Sibron, Peters and“Beyond, 67 MICH. L: REV.

ee a Mey oo -o 25, 32

Myrdal, An Amesican Dilemma, (Ist ed. 1944) ........... 17

Niederhioffer, Behind the Shield—The Police in Urban A, “pS

Bee ea ES ee 22

Pilcher, The Law and Practice of Field beatae, 58, CO

Xe RR TT . 25

President's Commission on Law Enforcement, Task,

Force Report: The Courts 103 (1967)............... 30, 33

President’s Commission on Law Enforcement, Task Force

Report: The Police (1967) Reich, Police Questioning

of Law Abiding Citizens, 75 YALE L. J. 1161 (1966) ... .17, 27

Schwartz, Stop and Frisk (A Case Study in Judicial

Control of the Police), 58 J. CRIM. L. C.& P. S.

BB QIOTS oi tecrveccccgevccccccscvccsnces’ - 25

Skolnik, Justice Without Trial, (1965) ....... HE gs Se Oe ae

Soutis, Stop and Frisk or Arrest and Search—The Use

se of Euphemisms, 57 J. CRIM. L.C. & P.S

RTS ora. ot Wie ca asa seus dagen 18

Stat/16 Charles 1.C.'10 (1941) ..:.......4-5. Yee 26

any, ee and Rotenberg, Detection of Cringe

EPR OE ray Oe OP TP OOr Pon 18, 20

US. Bureau of Census, Census of Pop. 1960, Vol. 1.

DRE A EPI Renee SIE ae Aloe sin bn epee Aap 21

US. Bureau of Census, Census of Pop. 1960, Final

Report P.H.C. (1)-28, Census Tract Cleveland, Ohio,

Table RES Suvctks cus aahameneenenes haus ee

OO ET ORT SA ee er

(vii)

, Page

Webster's Unabridged Dictionary {2d ed. 1962) ........... |

8 Wigmoyse, Evidence (McNaughton-rev. 1961)... . . se eeeee 24, 27

Note, Constitutional Attacks on Vagrancy Laws,

20 STAN L. REV. ee yee ety Tree Tee 25

-t

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No. 143 ©

JAMES PALMER,

: | Appellant,.

cITY OF EUCLID, OHIO,

Appellee.

APPEAL FROM THE SUPREME COURT OF OHIO

BRIEF FOR APPELLANT

OPINIONS BELOW

No opinions were delivered by any of the courts below.

ee . 5

JURISDICTION is

The judgment of the Supreme Court of Ohio was en-

tered on December 18, 1968 (A. .30).- A petition for re- °

hearing was denied,on January 22, 1969 (A. 30). The ap-

os es

peal wasfiled in this Court on April 22, 1969, and probable

jurisdiction was noted on May 4, 1970. The jurisdiction of

this Court rests on 28 U.S:C. § 1257(2).

CONSTITUTIONAL PROVISIONS AND

ORDINANCE INVOLVED .

United States Constitution

‘Amendment 4V:

The right of the people J be secure in their per- *

sons, houses, papers, and effects, against unreasona- _

ble: searches and seizures, shall not be violated, and.

“no Warrants shall issue, but upon probable cause,

supported by Oath; or affirmation, and particularly

describing the place to be searched, and the person

: ‘or things to be seized. ;

Amendment Vv:

* * * nor shall ‘any person * * * be’ compelled in

any criminal case to be a witness against himself

5 aa ae

Amendment XIV; Section 1, Clause 2: ‘

* * * nor shall any’ State deprive any person of

life, liberty,-or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Ordinance of the City of Euclid, Ohio

Section 583.01

It shall be unlawful for any suspicious person to

be within the Municipality. The following shall be

deemed suspicious persons: '

x**

(e) ~Any person who wanders about the streets or

other public ways or who is found abroad at late or

unusual hours in the night without any visible or

lawful business and who does not ive satisfac-

: ‘tory account of himself;

QUESTIONS PRESENTED ©

' Whether an ordinance providing for imprisonment of sus-

picious persons, defined as “Any person who wanders

about the streets or other public ways or who is found

abroad at late or unusual hours in the: night without

any visible or lawful business and who does not give satis-

factory account of himself;’ is so vague and lacking in as-

certainable standards of guilt as to fail to give fair notice of

what is prohibited, invite arbitrary and discriminatory en-

‘forcement, and sweep within its ambit constitutionally pro- .

tected conduct, so as to-be void as in ‘conflict with the

Fourteenth Amendment's guarantee of ‘due process of law? |

Whether, consistent: with the Fifth Amendment’s privi-

lege against self-incrimination, an ordinance -may compel a

suspect to “give a satisfactory account of himself’ under

pain of fine and/or imprisonment for failure or refusal to

do so?

‘ a ee ko

“Whether the Euclid suspicious persons ordinance ‘uncon-

stitutionally infringes freedom of movement by allowing ar-

‘rest, detention, and conviction on sispicion in violation of - :

the Fourth and Fourteenth Amendments?

. there at night (A. 12).

STATEMENT

On August 21, 1967, James Palmer was convicted after

a jury trial of being a suspicious person in violation of Sec-

tion 583.01(e) of the. ee of the City of eamatti

Ohio (A. 26).

_,- The evidentiary basis for the ‘conviction was primarily

the testimony of one Joseph Zupanic, a member of the:

City of Euclid Police Department (A. 4). Zupanic testified

‘that in the early morning hours of April 19, 1967, while he

was working his off-duty job patrolling the Indian Hills

Colony Apartmént complex (A. 5), his, suspicion was

aroused by Palmer’s automobile travelling at a very. slow

rate of, speed without headlights in the driveway of the

parking lot (A. 5).- Upon observation he became even more

suspicious, because he saw a “colored femalt”’ alight from

the passenger side of the car and entér the building (A. 5),

and he claimed to know that no “colored females” lived at

the apartments (A. 7, 21).* - raise

Palmer then turned his headlights on, pulled his car onto

the. street. and parked (A. 5-6).. As the patrolman ap- ,—

proached to investigate, he noticed that Palmer had a mi-

crophone in his hand and was talking on a. two-way radio -

(A. 6).. Zupanic testified that he asked Palmer for identi-

fication and asked him to get out of the vehicle, and that

Palmer got out and showed him his driver’s license (A. 6).

Zupanic put Palmer up against the car and searched him

for weapons (A: 7). .

In. response to a question about the id@ntity of the fe-

male, Palmer indicated that she was just a friend and that»

he didn’t know where she had gone (A. 6). Whereupon ~

- Zupanic marched Palmer into the building at gunpoint ( (A.

*The. Indian Hills Colony Apartitients were of such * magnitude that

Patrolman Zupanic estimated that-maybe 2,000 cars would be parked

f-a%

8) and called the police department for assistance (A. 6).

_A thorough search of the premises failed to find the fe-

male (A. 6).

Palmer subsequently agreed to take the police officer to -

‘the apartment where he thought the female had gone, but

when the party within denied that any colored female had

come into the apartment,-Palmer was taken to the police

station and his car was towed theré for investigation (A. 6).

Zupanic testified that during the course of interrogation

at the station, appellant gave him three different home ad-

dresses, said he didn’t know the female’s name (A. 7), and

gave no satisfactory explanation of his presence at. the

apartments (A: 20) or that of stopping. his friend off

(A. 7).

A lengthy and meandering cross-examination of Zupanic

by Palmer* disclosed that all of his observation (A. 9-11),

_ his search of Palmer (A. 7), his search of the apartment

building ¢A. 13), his check of the stolen car sheet (A. 12), °

and his interrogation of Palmer at the police station (Tr.

53-58) produced not not a scintilla of evidence of any substan-

tive offense-corfimitted by either Palmer or the “colored fe-

male’ (A, 21). Further, there was no report of any crime

having been committed (A. 18). :

James Palmer did not testify in his own defense; the

‘court charged the jury in the language of the ordinance

without further explanation or limitation (A. 24-25); and «

the jury found Palmer guilty of being a suspicious person.

(A. 26). The court sentenced him to serve 30 days in the

Cuyahoga County Jail and to a fine of $50.00 and costs

ih. 2a" | 2

Palmer’ s motion for a new trial based on the cosistitu-

tional invalidity of the ordinance under which he had been

*James Palmer, although not a lawyer, conducted his own a

(A. 12).

convicted was denied (A. 27), On ‘neal to the Court- of

Appeals of Cuyahoga County; Palmer’s conviction was af-

; _ firmed without opinion (A. 28)>~ .Palmer’s appeal to the

Ohio Supreme Court was dismissed on the ground that no

substantial constitutional question’ ‘existed (A. 30). After

rehearing was denied (A. 30), Palmer appedled to this

Court, which noted probable. jurisdiction on May 4, 1970

(A. 31). a. ; ; "S,

Sinte

~ #

SUMMARY OF ARGUMENT |

tte | I.

A. Ordinance fails to give fair notice by reason of its.

vagueness. No ascertainable.standard of conduct \is pro-.

vided by any of its elements. ‘Wanders’ has been inter- “|

preted by diverse judges to include only innocent condtct, - — .

only criminal conduct, and both innocent and’ culpable

conduct. ‘Found abroad at late or unusual hours of the © *

_ night” is simply a nocturnal version. of wandering and is

‘faction is required. The _— in this phrase has led -

subject to the same vagaries of interpretation. The phrase

“without visible or lawful business” ‘simply begs the ques-. .

tion of, when wandering itself is lawful business. “Does

not give satisfactory account of himself” raises a host of

questions as to what kind of satisfaction and whose satis-.

° F)

nine lower federal. and state Courts to strike down statutes .

ie containing it.. Nor does the phrase “‘suspicious eet: lend.

any finite content torthis otherwise vague ordinance.

B. Ordinance invites arbitrary and discriminatory. “en- Mead 5;

forcement by reason of its vagueness. The requirement™ °

that suspects give a “‘satisfactory account” conditions their

freedom of movement on/the suffrance of any police offi-

cer. Thus, the ordinancg cannot stand cohsistent with.

toe Shuttlesworth v. City of:Birmingham, 382 U. S. 399 (1966).

The vagueness of its other elements facilitates the em-

ployment of constitutionally illegitimate bases for the selec-

tion of subjects from -nm s ‘satisfactory accounts” are de-

manded, A satisfactory account was. demanded of James

- - Palmer in: part -because “a colored fermale””’ alighted from

his car, when the police officer knew that.no colored fe-

2 males lived in the-area (A. 5, 7, 20-21). National statistics

and empirical studies of police behavior demonstrate that

’ Negroes . are. disproportionately burdened ‘by suspicious per-

son arrests. But even if race be viewed as a neutral and |

rational basis for determining who ‘is “out of.place” it may —

not be so employed, because it is. the product of, and. con-

tributes to, a long and -tragic ‘national history of housing

discrimination and segregation. A virtually all-white City,

“of Euelid would not. otherwise exist in a county having a

“nonwhite population in EXCESS of fifteen per cent.

The ordinaiice’ S capacity. for arbitrary enforcement also.

_ includes the potentiai for suppressing non-criminal but un- - °

" conventional persons and behavior, a substantial risk in

light of recent empirical evidence that a commitment. to

conventionalism is a ‘significant characteristic of the police”

personality.

The ordinance’s vagueness - further licenses judges ‘and

juries to convict for unconventional behavior in violation

of Giaccio v. Pennsylvania, 382 US. 399 (1966).

td Ordinance’ s vagueness as permitting application to. .

constitutionally protected conduct. The ordinance threat- ;

ens the privilege against self-incrimination, freedom of:

~movement, freedom from: arrest except upon: ‘probable

cause”, and freedom from conviction except upon -proof

beyond a reasonable doubt, as is developed in the remain-

der of the brief. ,

The privilege against self-incrimination prohibits govern-

ment from using compulsion to elicit incriminating admis-

sions, Albertson v. Subversive Activities Control Board, 382 ©

US. 70 (1965), from penalizing the invocation of the privi-

_ lege, Spevack v. Klein, 385 U.S. 511 (1967), and from

“ ag

-using‘in any crimfhal prosecution statements made ender

.tminor penalties compared ‘to the costs of appeal, mootness -

“ord, :

threat of sanction for refus4l to answer. Garrity v. New

Jersey, 385 U.S. 493 (1967). These principles establish be-

yond. peradventure ¢hat the police have no right td compel

‘answers to: their incriminating questions. Davis v. Mississ®

ppi, 394 U.S. 721, 727.n. 6 (1969). Yet, the City of Eu- .

clid has enacted an ordnance that purports to give them

that right. oo * e y ‘

. *. The ordigance must be ae unconstitutional on ‘its é

ace because it violates the central méahing of the privil-

ege against self-incrimination’ and the privilege. cannot ade-

‘quately be protected frdm‘it on-a case by case basis be-

‘cause of the paudity of appellate-review due to the ignoble

socio-economic status of most defendants, the relatively

by service. of sentence, and the absence of a writfén rec- |

tion which‘ cannot stand because it is predicated in part

upon statements elicited from Palmer under compulsion to

“give a satisfactory account” inyeiasd v. New M, ErSEY. "385

US. 493 (1967). = eas §

$ th

; . » .

*“Freedom of movement is- basic .in our scheme of

values”, Kent v. Dulles, 357 U.S. 116, 126 (1958), but it

,. is not absolute. The de..cate balance. between liberty of

movement and the requirements’ of order is drawn by the

Constitution and reflected in an escalating scale of burdens

of. proof, emanating arom the Fourth and Fourteenth.

Amendments, required of governqent before it may deprive

persons of. that freedom. A brief, on-the-street detention

requires “articutable suspicion”; an arrest demands “proba- |

ble cause”; and imprisonment pursuant to conviction re-

quires “proof” beyond a reasonable doubt”. The Euclid

suspicious-persons ordinance makes hash-out of this deli-

cate constitutional_balance by authorizing all levels of de-

privation on merg. ¢ Suspicion

ae .

As applied in this case the ordinance produced a convic- -

yee) re. .

" The Euclid suspicious persons ordinance is ot ‘necessary

to ‘law euforcement because of this Court’ s décision in

.' Terry v. Ohio, 392 U.S. 1 41968) and the availability of —

feasible alternative means of dealing with. suspicious. cir-

cumstances and persons;-such as the Uniform Arrest ‘Act,

the ‘New York “Stop.and Fr&k”’ Act, the Model Code of

Pre-Arraignment Procedure; and the common law powers

_ recognized in State ¥. Terry, 5 Ohio fAepp. 2d 122, 214-N.E.

2d 114 (1966), all of which are less stifling of fundamental

personal liberties. The alternatives do-not permit arrests or:

convictions on mere suspicion; do not make it a crime to.

_ exercise the privilege agamfst self-incrimination, and do not.

shift the burden of proof to the defendant. This Court Zan. ;

make a significant contribution to constitutional liberty at

fio cost to law enforcement by~ striking “down the Fuclid

o suspicious persons ordinance.

“ARGUMENT 4

L : eo

THE EUCLID SUSPICIOUS -PERSONS ORDINANCE:

p . IS SO VAGUE AND LACKING IN ASCERTAJNABLE

STANDARDS OF GUILT THAT IT FAILS-TO GIVE

-. FAIR NOTICE OF ,WHAT IS PROHIBITED, INVITES

_ « ARBITRARY AND ‘DISCRIMINATORY ENFORCE-

MENT AND SWEEPS WITHIN ITS AMBIT CONSTITU-

TIONALLY PROTECTED CONDUCT, SO AS TO VIO-

LATE THE GUARANTEE OF DUE PROCESS OF

LAW.

This Court has long held that ‘the first essential of due -

process of law” is violated by “a statute which either for-

bids or requires the doing of an act in terms so vague that

men_of common intelligence must necessarily guess af its

meaning and differ as to its application.” Connally v. Gen- -

eral Constr. Co., 269 U.S. 385, 391 (1926).

The requirement. that criminal statutg@{ be drawn with

| ey, and precision so as to provide. an ascertainable stand-

°)

' ; ye ;

ard of. guilt is founded upon rv separate, but related

policies: to provide fair notice of what ‘conduct: is. pro-

hibited, so that tlfose who wish to. conform ‘their condtct

to law may do so, Lanzetta vy. New ‘Jersey, 306 U.S. 454.

(1939); to prevent arbitrary and discriminatoty enforcement

of the law by reducing’ the scope of. discretion Of tliose ad-

ministering it, Gecio y. Pennsylvama, 382 U.S. 399 (1966);

Shuttlesworth v. City of Birmingham, 382 US. 87 (1965 );

and to limit the breadth of statutes affecting constitution-

ally protected freedoms in order to prevent their infringe-

‘megpt by “sweeping ‘and, improper” statutory application! | :

NAM.CP. v. Button, 37) US. 415, 433 (1963). Aptheker .

y, Secretary of State, 378 US.., ,500, 516-517 (1964).

The suspicious persons ordinance under which. James .

Palmer was convicted and sentenced to thirty days i imprison-

ment is patently’ vague and blatantly at odds with each of

the constitutional policies which underlie the void-for-

vaguencageoctrine.

A. The ieee’ Is So Vague Thartt Fails To Give

Fair Notice Of What Is Prohibited.

f f

Many. statutes have been invalidated by this Court for

a, failing to provide fair notice on the basis of the. vagueness

of a single word or phrase.* - The: Euclid suspicious persons .

- *

' This tripartite analysis of the void- for-vagueness doctrine was*

fully developed by Professor Amsterdam in Note, The Void-for-

Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67

(1960), and applied to vagrancy and suspicious person type laws in

Amsterdam, Federal Constitutional Restrictions om the Punishment of

Crimes of Status, ‘Crimes of General Obuoxiousness, Crimes of Dis-

pleasing Police Officers, and the Like, 3 CRIM.*L. BULL. 205 (1967).

2See, e.g., Cline v. Frink Dairy Co., 274 U:S. 445 (1927) (“a rea-

sonable profit”); Connally v. General Constr. Co., 269 US.* 385

(1926) (“current rate of .. . wages in the locality”); United States v. o

-L. Cohen Grocery Co., 255 us: ‘St (1921) (“unjust or unreasonable

rate’ 5 aes °

- ; se oma . - te

Lane, ie 5 Cine . id

ofdinance is rendered incomprehensible as-a guid® for the ;

governance‘ of conduct, by the fact that virtually its. eyery

phrase is afflicted with the vice of vagueness.-- No ascertain-

able standard of conduct is provided by * ‘wanders’, “found

- abroad at late or unusual hours in the night”’, “without

any visible or lawful business’, “does not give satisfattory

account’ of himself”’,,or . “suspicious bias

( 1 ) “Wanders”

Webster’s : Unabridged Dictionary (24 a 1962) defines

“wander” as: “to ramble here and there, without any cer-

~™tain course? or object in view; to travel or move from place

‘to place without any -fixed purpose or destination 6

.The ambiguities inherent in these lay definitions of

“wander” are reflected by the many and conflicting inter-

‘ pretations accorded the word. by judges who, fave had oc-

casion to construe it. In City of Columbus v. DeLong, 173

Ohio St. 81, 180 N.E. 2d 158 (1962), a majority of the

__——Ohio- Supreme Court held-that siice “wander” is commonly |

defined as moving about “without a fixed course, aim or

-goal”, the word necessarily excludes traving a criminal pur-

pose, and thus the-ardinance in- question was invalidated as

‘prohibiting only innocént conduct. On the, other hand,

Judge Taft in dissent would have upheld the ordinance, :

contending that in th¢ context of the ordinance “‘wander’”’

‘ encompassed only criminal conduct, requiring proof of in- ©

tent to solicit for’ prostitution. A fhird distinct interpreta-

tion’ of “‘wander” was rendered. in City of Seattle v. Drew,

70 Wash. 2d at P.2d 522 (1967). in which the court

- construed the word to include both innocent arid culpable

conduct, and. therefore struck down the ordinance in-ques-

-tion’as overly broad. The Seattle Ordinance’ was not saved

by the presence of the equally imprecise, but more on

——- yet on

3This ‘muct# of the definition is identical to that contained in

Black’s Law Dictionary (4th ed. 1957).

e P

Sprig ke SO At ea See Sune ; a

"tive, word ° oiter”, "Similarly the Uriited States Court of

Appeals for the District of Columbia held - that neither . |

cya” #2 “wander” nor “I¢iter” was sufficitntl ly precise to Withstand | ne a

constitutional scrutiny, citing conflicting judicial* and po-

lice interpretations® “ranging from the ostensibly innocent *

to the potentially criminal”. Ricks v. District of Columbia,

_ 414 F.2d 1097, 1103, 14307 (D.C. Cir. 1968).

A host of other lower federal. and state courts have re-

cently struck down’ vagrancy’ or suspicious ‘persons laws pro-

scribing ‘“‘wandering” ,and/or ‘ ‘loitering’. .as too vague to ©

faifly. apprise persons . what conduct is prohibited.° ae eh rest

dl Pa

a °. ee)

* (2)- “Found abroad « at late « or unusual hours in the: night °

Without —~ visible or lawful business.”

oa a . Rid . ;

4Contrasting Kelley y. United States, 111 U ‘S.. App. De: - 396,

397, 298 F.2d 310, 311 (1961) With Harris v. District of Columbia,

"132 A.2d 192, 154 (D.C. Mun. App. 1957), rev'd on other grounds ©

: 102 U.S. App. D.C. 202, 251 F.2d 913 (1958).,

_5The*court summarized the police testimony in Ricks as follows:

“One police officer considered loitering to consist in ‘walking

back and ‘forth from the corner and standing idle in a door- °

ek _way’. Another felf that it was ‘standing around in one spot,

ae mot going anywhere: -Just standing. there flapging automo- ~§ = § XL

Uo Si Seine bi iles’. Still another said it was ‘[s]éaiiding idle inca door-- © -" =~

way’. The Chief of the Law Enforcement Division of the

- wCorporation Counsel’s office defined ‘loitering ‘as’ ‘a man

“hanging around a street corner he has been hanging around

‘ - for-an ‘hour, we will say. there is“no apparent purpose or

; motive for his being theré.. But, now loitering in and of it-

' self doesn’t make me a vagrant. * * * You have got to-have- ~* *

some atts on‘his part to indicate that he hasan ulterior mo-- =

tive’.”” Ricks v. District of Columbia, :414 F.2d 1097, 1103,

n. 41 (D.C. Cir. 1968).

See, e. g., Scott. v. District Attorney, Jefferson Parish, State of :.

Louisiana, 309 F. Supp. 833 (E.D. La. 1970); Landry v. Daley, 280 ©

F. Supp. 968 (N-D. IH. 1968); Arnold vy. City and County of Denver, .

Colo. -_ , 464 P.2d 515 (1970), overruling Dominguez v. City

and County of of Denver, 147 Colo. 233, 363.P.2d 661 (1961); Head-

ley v. Selkowitz, 171 So. 2d 368 (Fla. _ .. a

(Po

- ie 3 _ ‘ . 2 i \

an phrase is. simply 4. nocturnal’ version of ‘ ‘wandering”

“loitering” and is subject to: the same vagaries of inéer- ©

pretation that render those verbs insufficient as standards of.

- conduct. Being * ‘abroad . . without any visible’ or lawful

business” could mean “to ramble Hiere and there, without

any certain course or object in view” (as.in the: dictionary '

‘definition ‘of ‘ ‘wander”),’ in: which case the proscription |

would embrace the law professor who walks the streets mid- re yo ergs

night:, ‘8 On thé other had the phrase could be construed

to prohibit only being abroad for an 1 unlawful or “caine

purpose.” aes i A ? sheet ae o

The problem is that. the statutory language provides no me

’ basis for selection among, these alternatives. eke one. dis-

of}

fensé,; or as an opportunity for potential defendants ‘to ex-*

- culpate themselves, it is so incredibly vague And subjective — 7 Sy

trict. court put it: as, s° ; SP

“nor does the phrase ‘without lawful busingse> do...

_more than beg the question of whert loitering or” i

‘loafifig [or wandering] can themselves amount\to. .. -- °°

‘lawful business’.”’ Scott v. District Attorney, Jef-, -*. a :

'-ferson Parish, State of Louisiana, 309 F. Supp. p Bhp as

837. (E.D. La. Pdvas per . 3 f arg

{3) “Dots not ive satisfactory account of himself”, YR: AO

_ Whether this clause be regarded as an element of ‘the of- “y f

; - di —- .? ° . :

oak ° ONS “ e “” / -

o - P . - ad's I : Yi Z

* +s ~ 4 4 a 2 o- A s >

"See. heotnoen 3, supra. eee antes <4 ff

8Reich, Police Questioning of .Law Abiding Citizens, 75 YALE Lf 7 -

J. 1161 (1966). a ve ry

‘City of Portland v. Goodwin, 187 Ore. 409, 429, 210 P.2d i

586 (1949).

The latter notion is the sbees of some ‘incredible construc- hee are

tional gymnastics engaged in by-some courts in an,effort to save sta-

tutes containing “satisfactory account” clauses from obvious conflict -, . ;

vil 8 privilege against self-incrimination. See, e.g. People v. Me- is

9 N.Y. 2d 62, 172 NE. 2 a 541 (1961). potae ss gs

® : ‘ . + J . ‘.

c - % a y ; . ;

“é oe ere

. oa hes ah

as to contaminate Virtually any. ae or o®inance that in-

cludes it. ae ae

A virtually infipiite lumber of. Shenavicied questi@ns

could be propounded as.ta the meaning of, “satisfactory ac-"". \

court’. -Just a few of them were raised by a three-judge

district ‘court in striking. down‘a loitering ordinance which ay!

, embodied: the r quirement:

Pg ‘ - e

“We do ndt believe that the’ requirement that an of- “

fender ‘give a satisfactory aceount of himself” passes

~ constitutional tests. It places sole determination in

the discretion of the’ policeman on the beat.” The

_ standard of ‘sdtisfactory account’ is not certain, for

what may-be satisfactory to one may be unsatisfac-

_ tory to another, and the meaning af the word ‘satis- —

factory’ itself is not susceptible of any ~earrinaehs of

exactness. Whatskind of ‘satisfactory’? Legal rt

- moral satisfaction? What is the time limit to be é

braced within the’ ‘giving of ‘a satisfactory account’. -

that will excuse the offender in the ‘sole: discretion :

of the: police officer who demands it? A satisfac-

tary, account at that instant or a ‘satisfactory. ac- ae

‘ count of past-activity? If of past activity, is that -

not guilt without proof? ‘Does the mere that —

one cannot give a satisfactory account .of himself to

.. the ‘pleasure of the inquiring officer make him-guilty:~

of an unspecified crime?” Baker’ v. Bindner, 274

F. Supp. 658 (W.D. Ky. 1967). > .. . OH

Equally ‘unanswered is how much ot an explanation is

. needed.to’ add up to an “account” . who is entitled to de-

- mand. an account, whether an account which is incredible

but -truthful is “satisfactory” 5 and, conversely ; whether a

.- credible but false account “‘satisfies’” the requirement. -Con- -

siderations such as these have led at least nine lower fede-

7 e qh tee

Nevertheless, such a construction cannot operate to save, the*ordi- ©. .

‘ nance from a vagueness attack as even exculpatory’ clauses are held to

the standard of clarity. ‘Cline v. Frink. Dairy Co., 274 US. 445.

(1927). ~

: g

& °

- @

gr j 2. Bee

15. Ss 2a >

; “ai and state. courts in the last five years to strike down’ 3

vagrancy. ¢ or suspicious persons laws. denarii a “satisfac- ;

_ tory account” or conmpanaoee : requirement.' ie

eo / : i>] | - 4 . ~ wt . aS , ae - ice ere, . : > :

| (4) “Suspicious person” Re ah eas et ce a |

we ee

Nor is thiis otherwise vague ordinance ® given any finite *

content by its characterization of offendets as “suspicious.

persons”. ~ This phrase is little-more’ than an epithet afd fur- f

are nishes no- guidance to potential offenders as to what they °

must do or not: do to avoid: criminal. liability under its ap-

pellation, _ ii ‘ :

. In.sum, while each of the aforementioned ingredients of

‘the Euclid suspicious persons: ordinance is- sufficiently. vague

to. render. it of dubious constitutionality, the hash that re-

- sults from their combination is so. incomprehensible that its

sinvalidity shouJd be beyond question. The ordinance fits. . ao 3

Mr. Justice Frankfurter’s “description , of the statute invali-

' dated in Lanzetta vs New Jersey, 306 U.S. 451 (1939) as °

_’. “of the type that seek to control ‘vagrancy’. These

_ statutes are in a class by themselves in view .of the .

familiar abuses to which they are put . “. Definite- -

ness is designedly avoided so as to alloW the net to.

be cast at latge, to enable men, to..be caught who -.

are vaguely undesirable ini "thé eyes of’ the police

‘ and prosecution, aithongh not chargeable with arly

‘ ae q ag Re esr ar

tl See. Ricks v. District of Columbia, 414. F.2d 1097 (D.C.. Cir.

1968) (“good account”’); Scott v. District Attorney, Jefferson Parish; *

State of Louisiana, 309 F. Supp. 833 (1970) (“account for lawful

presence’): Landry v. Daley, 280 F. Supf. 968 (N.D. Ill. 1968) (“rea-

sonable excuse”); Baker v. Bindner, 274 F. Supp: 658 (3. judge coi

~ W.D. Ky. 1967): United States v. Margrson, 259 F. Supp. 256 (E:D. .

" and County o} of Denver, 147 Colo. 233,363 P:2d 661 (1961); Head-

Drew, ins Wash; 2d 405, 423 P. 2d 522 hace

Pa. 1966) (“good account”); Arnold:v..City and County of Denver,

_. Colo. -_, 464 P.2d 515 (970), overruling Dominguez v. City’

‘ley v. Selkowitz, 171 So. 2d 368 (Fla. -1965); Alegata v. Common-

wealth, 353 Mass. 287, 231 N\E:~2d 20111967); City of Seattle v.

’

549

B. The ‘Namah Of The Ordinanoffivites A Arbitrary a

2 16 : * ep / P So 4

; : < 2 . Sane eS eco —-

~ particular offense. In short,, these “vagraney sta: .

“ tutes’ and laws against. ‘gangs’ are not: fencéd in bf.

‘ the text of the. statutes or by the. subject mattey -so.

as. to give notice of conduct to be avoided.” * Win-

ters .v. New York,.333 US:. oT, tia esreeg or

ening y aeanee ee

And Discriminatory Erfforcement, ®.

A second reason for’ the invalidation of vague pene sta-

‘tutes is that they vest discretion urifettered ‘by statutory),

standards. in law enforcement officials; -Shuttlesyorth ae

“ City. of ot bberactow 382 U. S: 87 €1965), and cOurts: an

_ juries,

thereby nani eee and sis acura enforce- .

Giaceio:-v. . Pennsylvania, 382.US.. 399 (1966),

‘ment and conviction.

‘ No elaborate reasoning is. required to demicnistrate that

-) sthe €uclid ‘suspicious persons ordinance sufférs from this

vice, for not only is it abundant with vagueness, but it also

expressly” devises unfettered discretion to the police to. sub-

jectively determine culpability by: any or no criterion, pur--

suant to the “satisfactory account” quirement. Accord-

_ ingly the. ordinance stands condemped under this: Court’s

~ decision. in. Shutflesworth v. City @ Birmingham, supra, at.~. 2+. °

90-91, where it said: zn :

| "Literally aaa therefore, the ‘iced ‘past of this or-.

_ dinance 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 dentgnstration. It

- ‘does: not providé for government by. clearly defined

. laws, but rather for govegnmient by. the moment: -to-.

moment opinions of a policeman ‘on his beat.’ Cox |

v.. State of Louisiang379 U.S. 536, 559, 579 (sep-

‘arate opinion of MR. JUSTICE BLACK).’* én

In. addition, the vagueness ‘of such aiihars as, “wander”,

~ “abroad”, “without. any visible ‘or. lawful business”, and

“suspicious person” permit the pane to employ illegiti-_

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Pees pe

- or - Cigtc

‘mate bases for, elect. stibjects from: whom Natisfactory —

- accounts” are’ ‘ déinanded. In .the ;instant case, Euclid tak

officer Zupanic testified (with commendable candor): that

sunpes: Palmer became * ‘a suspicious. person” in part ‘because

ar calored female” alighted from his‘car (A. 5} when he

| “knew no -colored females . lived in the’ apartment ‘complex

(AKT, 20, 21).'?*

While ‘American’ race: relations have undergone enormdus

change since 1944, when Guamar Myrdal reported. general .

* and: pervasive racial discrimination, in law: enforcement; eee

\ there is reason to believe that race is still a spiiticant face

tor in police s street patrol. and suspicious person practices.

' Latest. available arrest statistics reveal that Negroes are dis-,

: "proportionately arrested. fo % ‘suspicion’ ” (arrests for no spe- ,

‘cific ‘offense and release ‘without formal charges being

placed), accounting for 45. % per cent of. _— arrests, com-

‘pared to only 27.5'per cent OfNotal arrests.!* » These gross *

statistics are corroborated by cent studies of police be- &- ,

havior, 15, and illustrated by anecdotal teports of detentions

| Rof possible signtficatice was Zupanic’ S gratuitous insertion of

~ Palmer’s race—“Colored”’—on- the affidavit line marked “‘Sex”’, wien

-. lief. that alk Negroes are inherently .ctiminal operates. to increase ar-"

" rests, and the Negre’s lack of political power prevents a:white police-

_ man from. worrying. about how many Negro arrests. he makes." ‘ Myr-°

_tfform called for no: raci§l classifigation. (A. 3).

I3«« Negroes are more: likely to be arrested than whites, mote

likely to be indicted after arrest; more likely to be convicted ‘in court:

yand punished. Negroes will be arrested’ on the slightest suspicion, or

~ on no‘suspicion at’all, merely to provide | witnesses or to work’ duting wa

a labor shortage in violation of anti- -peonage laws. The, popillar be-

dal, An American Dilemma, 968 (1st ed. 1944). ~ |

SE BI., UnifornfCrime Reports - 1968, Table 30, p. 120. -

; SSee, e.g. Presideni’s Commission on Law Enforcement -aniiPA d-

ministration “of Jiistice, Task Forée Report: The Police, at 184

~ .° (1967) reporting a ‘survey based on fiding’ with patrol. units in two |

Cities which ; -disclosed that members of minority groups were often.

stopped, particularly, al found in proups, in the company of white

——

“— ven eree ae

and arrests of responsible, law-abiding Negroes.'® Indeed,

this Court took note of such, practices in its decision in

Terry v. Ohio, 392 U.S. 1, 13 (1968)."” oe,

people, or at night in white neighborhoods, and: that this caused seri-

ous problems in police-community relations; and Tiffany, Mcintyre,

and Rotenberg, Detection of Crime, at 20 (1967):

rs 00 of one race’observed in an area which is largely in-

| ited by a different faciaf group may be stopped arid

questioned. A Negro in an area which is almost-exclusively

whité is more suspect than a white in the same area, al-

though a decision to stop for questioning may not be made

on that basis alone. A white person in a Negro neighbor- ~

, hood late at night is very likely td be detained, But in the

latter case the purpose of the detention is not usually to dé-

. tect crime but to warn the person of the danger of being in

thé area particularly if he is-alone.” —

See, e.g., Jutge Theodore Souris’ report of an eminent Negro

jurist Who was stopped while driving home at night after visiting his

fiancee in a fashionable residential neighborhood. At the police of-

ficer’s request, he handed over his driver’s license and automobile seg-

istration and informed the officer that he had’ been visiting a frien

in the neighborhood. But he refused to’ identify his fiancee and was

thereupon taken to poljce headquarters Where he was immediately

- secognized and released with appropriate apologies. Souris, Stop and

Frisk or Arrest and Search~The Use and Misuse of Euphemisms, 57

J. CRIM. L, C. & P. S, 251, 252-253 (1966).

‘The facts of. this incident bear striking similarity to some of those

in the instanf case, particularly the judge's refusal to “divulge the

identity of his female friend (A. 7). Perhaps, if James Palmer were a

judge, he would aot now be under sentence of thirty days ispaison-

For testimony that this story is not a uniquapone, see —

Law Institute, 1966 Proceedings, at 105, where Judge George"Ed-

wards, relating his experience as Police Commissioner of Detroit,

stated, x

" “{ don’t think I know a single Negro lawyer, businessman, or

doctor who has talked to me about this topic who has not — 3

told of his [personal] experience with stop and frisk.”

'7The Court concluded that the application of the exclusionary —

nile to the product of legitimate police investigations would not ef-

fectively deter the practices complained of. Of course, the issue in

the instant case is mot the exclusionary rule, but rather the subject of

‘

| 9 ioe at

~ It might be contended that race is a Th A rational a

~ noninvidiou¥ basis for determining who is not a resident of wt

the patrolled neighborhood and is therefore the proper sub-

ject of investigation, However, this claim must be evaluated

. in the light of the history of facial discrimination and segs

regation - that fa¥ilivates it‘and of “the historical fact that

the central pfrpose of ‘the Fourteenth Amendment was to

- eliminate Sracial discrimination emanating #rom_ official

sources ‘in the States”. McLaughlin v, - Flortda, ‘379. U.

184, 192 (1964). ae Se SP a oh

A majority of this C eune has taken the position that ra-

cial AEST in the exercise of state- police power .

“bear a heavy burden of justification’. . - and will be-

upheld only if necesSaryy and ‘not nidyely rationally

related to the accomplishment of a rmeeeeed state ..

policy. ” Id, at 194,"8

7 6

-, 4 ° 9 .

, ~% - % a J (Tv

f i 2 oS .

3 SF

— ‘

. an investigation which discloses no evidence of crime may be im-

prisoned for having generated suepicion.

'® Articulating its reasons for imposing ‘this heavy burden of just

fication, the majorfty opinion declared,

“We deal here with a faeial classification embodied in a crimi-

nal statute. In this context, where the power of the State“

s most héavily upon the individual-—or- ~

must be especially sensitive to the policies of the Equal Pro-

-- tection-Clausegwhich, as reflected in congressional enact- —

-ments dating from 1879. were intended to secure ‘the full

and equal benefit of all laws and proceedings for the secu-

rity of persons and property’ and to subject all persons to

‘like punishment, pains, penalties, taxes, licenses; and exac-

tions of every kind, and to no other.” R.S. § 1977.42 USC.

§1981 (1958 ed). « - ; ,

_ Two mengbers have stated that —

“it is simply not possible for a state lew to be valid under

our Constitution which makes the criminality of an act de-

pend upon the race s the actor.” McLaughlin v, Florida,

a. at 198. . (Separate opinion of MR. JUSTICE

EWART and MR. JUSTICE DOUGLAS). ae F

fers gy Fer *

Although the Euclid suspicious persons ordinance cofttains

no express racial elements, its vagueness facilitates<nforce-

ment on a racial baSis as surely as if embodied in the‘lan-

" guage of the ordinance itself. -

' The conteytion that race’ furnishes a neutral basis for in-

_ quiry requires a threshold shosving that white persons found

. in black neighborhoods: are subject to the same treatment as

black persons found in white ‘neighborhoods. The available ’

evidence ‘on this qifestion falls far short of the “heavy bur-

es den of justification” required, and in fact'may even point

to the contrary conclusion.'® / .

Secondly, the need to ‘discuss this issue in terms of black

nefghborhoods and white neighborhoods constitutes a tragic

reminder of the tong history of housing discrimination and °

segregation, both governmental”? gnd private?! that facili-

tates“the use of race as a sign of being out of place. In the

| instant case, Officer Zupanic could testify that no colored

-( females lived in an apartment Complex (A. 7) large énough

* to -haye 2,000 cats parked on the premises (A. .12), This is

not surprising in the -City of Euclid, -a municipality for

‘ which the census reported only 105 nonwhite residents out

° Le

See Tiffany, et al., Detection of Crime, supra, at fn. 15, indicat-

ing that detentions of whites in black neighborhoods are generally —

‘for the purpose of warning them of the danger of being in the area.

See Buchanan v. Warley, 245 US. 60(1917).

| "See Jones v. Alfred H. Mayer Co., 392 US. 409, 441-442

: (1968):

Ae “Just as the Black Codes, enactéd after the Civil War tO re-

strict the free exercise of those rights, were substitutes for

the slave system, so the exclusion of Negroes from white

“ - communities became a substitute tor the Black Codes. And

when racial discsimination herds men into ghettos and makes

‘ their ability to buy ptoperty turn on the color of their skin,

‘ then it too is a relic of slavery.”

' See also: Shelley v. Kraemer, 334 US. | (1948). and Title VILL (Fair

Housing), Civil Rights Act of 1968, 82 Stat,. 73, 42 USC’ § 3601-

3619. k

«*

- 21 are

of a total population of 62,998.22, Government should not

be permitted to avaif itself of the product of this long his-

tory of racial discrimination, even for an otherwise legiti-

mate legislative purpose.?> | : oe at

Ffally, even if applied in. an ostensibly neutral and even-

handed manner, the racial-tést for selecting subjects of de- +

tention and investigation necessarily produces a differential

“impact on the freedom of movement of the minority race,

as there are necessarily more areas,in which its members _

«will be “out of place’.24 haaeloechne ae |

The ‘capacity of the Euclid suspicious persons ordinance

for arbitrary enforcement is not limited to ‘racial discrimi-

Nation, but also includes the potential for suppressing non-

criminal but unconventional persons and behavior. Rele-

vant to this concern is the observation of recent students of

police behavior that an essential characteristic of the patrol-

US. Bureau of Census, Census of Pop. 1960, Vol. 1, p. 37-266,

Table 72. pe . ee ok

- That this paucity of nonwhite residents is not a representative dis-

tribution of the area’s population is demonstrated by the fact that

the same census reported 258,597 nonwhite residents in the county

(Cuyahoga) out of a total population of 1,647,895. US. Bureau of 7

Census, Census of Pop. 1960, Final Report P.H.C. (1)-28, Census

Tract Cleveland, Ohio, Table p. 1, p. 14.

¢ Housing discrimination is not a phenomenon unknown to the’

State of Ohio. See Hunter v. Erickson, 393 US. 385 (1969): and the

Ohio Fair Housing Act, Section 4112.02(4), Ohio Rev. Code.

23Cf. Gaston County, North Carolina v. United States, 395 US.

285 (1969). E

4 Professor Amsterdam points, out that

“[t}he right to travel—freedom of. movement—has excellent

Fourteenth Amendment credentials in light of the concern?

of the Reconstruction Congresses with the “pass system’ en-

forced by the Southern States chs = Freedmen after the

Ciwil War”. Amsterdam; footnote 1, supra, 3 CRIM. L.

BULL. 205, at 213, n. 2. , ‘

\. oe . od .

man’s personality is ® commitment to conventionalism.?5 :

Equally relevant are police instructional manuals equating .

advice for investigatory- purposes, and may even provide a

é legitimate basis for a “stop and frisk”, Terry v: Ohio, 392

US. 1 (1968), it is constitutionally outrageous as a basis. for

conviction and imprisonment.?” Yet.the vagueness of the .

; . hs af;

- a

Congress’ concern that post-Civil War Southern Vagrancy laws, al-

. though facially ‘color blind, were being discriminatorily ¢nforced -

against the Freedmen. ; , he :

5Whether this be ascribed to an “authoritarian personality” as in

“Niederhoffer, Behind the Shield—The:- Police in Urban Society, 108

(1967), or to the element of danger producing a perceptual shorthand

that equates the unusual with the violent as in Skolnik, Justice With-

out Trial, 44-48 (1965), the result is the same.

See, ¢.g., Gilston and Podell, The Practical Patrolman, 43

(1959): - pt 2 = —_———$—————

— *What-makes 4 ‘Suspicious’ person, action or circumstance? '

In.part it’s a matter of not ‘belonging’; of being unusual. A

person in dirty, ragged clothes may be unusual in one neigh-

borhood, but in-another he sticks out Jike a sore thumb”;

-_* °

+ And Adams, “Field Interrogation’, Police, March-April, 28 (1963):

“A. Be suspicious. This is a healthy pOlice attitude, but it

should be controlled and not too obvious.

B. © Look for the unusual.

1. Persons who do not “belong’ where-they—are-ob-

served.

‘2. Automobiles which do not ‘look right’.

ea. 3. Businesses open at odd hours, or not according to

routine Gr custom.”

7For a.cogent distinction between the use Of “suspicious person”

-type criteria as bases for authorizing thteshold inquiry and their use

as grounds for conviction (as in the instant case) compare Common-

wealth v. Lehan, 347 Mass. 197, 196 N.W. 2d 840 (1964) with Ale- .

gata v. Commonwealth, 353 Mass 287, 231 N.E. 2d 201 (1967). See

also City of Cleveland v. Forrest, 10 Ohio Misc. 98, 100, 223 NEL

2d 661, 663 (Mun. Ct. 1967): :

‘

° .

_ “suspicious” with “unusual”.?° While this may be sound _

See Id., at 230-231, n. 22 for authorities demonstrating the 39th /

| te |

) ’.. Euclid suspicious persons ordinance licenses. judge or jury to

_ punish defendants for behavior that is unconventional”*. or,

as in Giuccio v. Pennsylvania, 382 U.S." 399 ( 1966), “‘repre-

hensible”,. a er Pins

‘

C. The Vagueness Of The Ordinancé Permits Its-

Application So. As To Punish And Deter Con-

: stitutionally Protected Conduct.

_ The Euclid suspicious persons ordinance either flagrantly

violates or implicitly threatens. the privilege against self-

incrimination, the right to travel, freedom from arrest ex-

cept-upon “probable cause”’, freedom from conviction ex-

cept upon pfoof “beyond a reasonable doubt’, and the

_ Tight not to be punished for the’status of being “‘a suspici-

, OUs person”. The sources of these constitutional liberties -

‘and the manner in which the Euclid ordinance threatens

— will be developed inthe succeeding sections of this

rie ——sS : 7

—_—

THE PROVISION COMPELLING A SUSPECT TO “GIVE

A SATISFACTORY. ACCOUNT. OF HIMSELF” UNDER

_ PAIN OF FINE AND/OR IMPRISONMENT VIOLATES

THE. PRIVILEGE AGAINST SELF-INCRIMINATION

AND INVALIDATES THE «EUCLID SUSPICIOUS PER-

SONS ORDINANCE ON ITS FACE AND AS APPLIED.

Mueh of the recent controversy over’ the scope of the

Fifth Amendment privilege against self-incrimination has in-

‘volved the issue of when and where the privilege is applica--

@ ° i ©

; *Note the claim by the City of Euclid in its Brief Opposing Ju- .

_ Misdiction of the right to regulate “irregular behavior” Id., at 4.

re :

co | ; ‘

ble. While there is disagreement over whether particular

contexts involve sufficient risk of compulsion to trigger the

application of the privilege, Miranda v. Arizona, 384 US.

436 (1966), there .is consefisus that government may not -

use compulsion to’ elicit incriminating admissions, in or out

of the’courtroom. Albertson v. Subversive Activities Con- .

trol Board, .382 U.S.:70 (1965). Thus; the contention that

‘the privilege ‘‘does not apply fo police interrogations” has °

not been predicated upon forinalistic ‘distinctions between .

_ courtroom and police station, but upon a recognition that 2

i Se have no legal right to compel answers, d

— there is.no legal obligation to which a privilege in -

the technical sense can apply. That is, it makes no

_sense to say that one is privileged not to disclose—

that one is excused from the legal consequences of

contumacy—when there are no legal consequences of

-- contumacy.” 8 Wigmore, Evidence § 2252, at 329

-n. 27 (McNaughton rev. 1961). gins

- f

‘Any contention that language in the Miranda opinion —

permits vesting police with authority to. compel answers

during “general on-the-scene questioning” is foreclosed by

this Court’s subsequent explanation of that language i in

Davis v. Mississippi, 394 US. 721, at 727 n. 6 (1969):

“The State reliés on various statements.in our cases

which approve general questioning of citizens in the

course of investigating a crime. See Miranda v. Ari- :

zona, 384 U.S. 436, 477-478 (1966); Culombe v.

Connecticut; 367 U.S. 568, 635 (concurring opin-

ion) (1961). But these statements merely reiterated

‘the settled principle that while the police have the

right to request citizens to answer voluntarily ques-

tions concerning unsolved crimes they have no right

to compel them to answer.” (emphasis added).??

See also’the separate opinion of MK. JUSTICE WHITE in Terry

v. Ohio, 392 US. Ii at 34 (1968):

“Of course, the person stopped is not obliged to answer, ans-

“wers may not be ——— and refusaf-to answer. furnishes

one

The privilege against self-incrimination means that govern-

ment may not “resort to imprisonment” to compel an in-

dividual to answer eertied that might incriminate him,

_ Malloy v. Hogan, 378 U.S. 1, 8 (1964), may not requite

“him to supply information wh may tend to incriminate

him, Marchetti v. United States, 390 U.S. 39 (1968); Al-

bertson vy. Subvérsive ‘Activities Control Board, 382 U.S. 70

(1965); may not penalize the invocation of the’ privijege,

" Spevackv. Klein, 385 U.S. 511 (1967); Griffin vy. Califor-

- “nia, 380 U.S. 609 (1965), and may not. use in any: crimi-

nal prosecution statements made under threat of sanction |

for refusal to answer. Garrity v..New Jersey, 385:US.

493 (1967)... gg I

Bhat these principles and authorities: prohibit a munici- .

a pality from making it a crime to. refuse to answer a police-

man’s incriminating questions is recognizéd in the law re-.

Re eee tae 4

no basis for an arrest, although it may alert the officer to

the need for contirtued observation.”

Kuh, The.’ ‘Rest of Us”’ in the “Policing the Polite’’ Controversy, 7

a7 8, GRIM: L.C. & P. S. 244, 248 (1966): La’ Fave, “Street En-

counters’ and the Constitution: Terry, Sibron, Peters and* Beyond,

67 MICH. L. REV. 39, 106-107 (1968); Pilcher; The Law and. Prac-

tice of Field cle ate 58 J. CRIM. L. c: & P. S. 465,’ *474

(1967).

See also Warner, The Uniform Arrest Act, 28 VA.'L. REV. 315,

320 (1942).

+ Amsterdam, fgotnote 1, supra, 3 CRIM.. L. ‘BULL. 205; 228

(1967); Schwartz, Stop and Frisk (A Case Study-in Judicial Control

of the Police, 58 J. CRIM. L. C: & P. S.°433, 459 (1967); Note, Con-

stitutional Attacks on howd Laws, 20 STAN. L. REV. 782, an

790 (1968).

A similaw conclusion has been nie by. the American Law In-

stitute. A.L.I.. Model Code of Pre-Arraignment Procedure, Tent.

Drft.. No. 2, §.§ 2. O1@), 2.02(5).

_ view literature by friend and foe*! alike.of expanding po-_ -

lice investigatory powers. we * Yet this is rata what the y

ee ee

City of Euclid has done in enacting’ a suspicious persons or-

dinance campelling suspects to “give a satisfactory account”’

of themselves under pain of fine inact imprisonment for.

failure’ to do so. °

The ° ‘satisfactory account” cocuaibeaeas necessarily puts ~

suspects of whom it is. demanded to a choice, between the

“rock” of prosectition. for being a suspicious person’ and the

“whirlpool” ‘of potential self-incrimination. Such a require-

“ment is’ no ere technical or peripheral violation of the.

Fifth Amendment,.but strikes at the heart of.

“the whole complex. of values that the privilege

against self-inerimination itself represents, values de-

/ “scribed in the Malloy case as reflecting ‘recognition

«. that the American system of criminal prosecution is

-accusatorial, not inquisitorial, and. that the Fifth

Amendment privilege is its esséitial mainstay. * * *

Governments, state and federal, are thus constitu-

tionally compelled to establish guilt by evidence in-

dependently and freely secured, and may not by

coercion prove’ a charge against an accused out of

his own mouth.” Tehan v. ant, 382 US. 406,

\414 (1966).:

« The privilege against self-incrimination was illest in the

~-cauldron of the Star C hamber where suspects were com-

pelled to respond to inicriminating inquiries and: to bear the

“burden of proving. their innocente, - The abolition of the

- Star Chamber*? in the wake of ris pan Trial* is. ‘generally.

’ This represents ‘an interesting change of position by the Institute

since 1961 when it approved the Suspicious Loitering section of the

Model Penal Code (8 250.6) requiring suspects to explain their pres-

ence and conduct, despité the fact that the Code’s Reporter stated,

“We are creating a criminal liability by a-man refusing to speak. This:

- \is an incursion on the privilege of self incrimination.” + ALI, 1961

eedings 249. = :

explanation is given in the notes or commentary to the Model

Code bf Pre Arraignment Procedure for this apparent contradiction.

oe aan

regarded as the foundation sed the privilege and the Core: -of

- its interpretation.» ws

' The central meaning of the. privilege against self-

;incrimination requires that Section 583.01(e). of the Ordi-

--nancts of the City of Euclid be declared unconstitutional —

“on its: face for the following reasons: (1) In creating a.

scheme which gives police the power to summon citizens —

_upon mere suspicion’ and ‘‘demand that -they cough up

something to dispel [that] suspicision”,*®. the essence of: -

the ordinance*is a reincarnation of the evil the privilege _

was designed to eliminate. ((2) By definition the law com- ie

pels a “satisfactory account” only from those “inherently

suspect of criminal. activities”’.>7 (3) A declaration of facial

“unconstitutionality is the only way that. the privilege can

be vouchsafed from the-threat posed by such laws, in light

of the fact that the ignoble Socio-ecgnemic status of most

of their victims and their: —: minor’ penalties effec-

_ tively foreclose appellatg scrutiny*® of their. operation on a

’ case by case basis.*° |

3g Wimacie. Evidence § 2250 (McNaughton rev. ’. 1961).

* Amsterdam, footnote ‘ supra, 3 RM. L. BULL. 205, 228

(1967). * ¥

37 Albertson vy. _ Subversive Activities Control Board, 382 U. IS, 70, -

79 (1965).

President's Commission on Link Enforcement, Task Foree Re- |

port: The Courts 103. (1967).

Other factors that tend to make: appeals of such convictions a

rarity are the frequent absence of a written record and mootness by

service of sentence. a,

‘For a description of the kinid. of “due ea that is adminis- ;

~ tered under circumstances where appellate review is not a realistic re-

. course, see Foote, Vagrancy-Type Law.and Its Administration, 104

U. PA. L. REV. 603, passim (1956). To summarize Proféssor Focte’s

field’ study in his own words: “Procedural due ‘process does not

penetrate to the world inhabited Y the ‘bums’ of eras ay es Id.,

at 604. °

‘PAs to the possibility of othe remedies, such as~affirmatiye. suits

for damages, 40 vindicate’ the privilege, note Euclid Police Lieutenant

Zach’s testimony apout “waiver cards”:

eee ee SNK a, RN ei ra

a here : Bak

~ As applied ‘in the instant case, the drdinance: produced a

ccqnviction which cannot stand, Yor much fF he case against

Palmer consisted of statements-elicited from ‘him under the

compulsion of the requirement that he give “a satisfactory *

account”.*° (A. 6-7,.22-23). The admission into evidence

‘ of statements so obtaingd is prohibited by. the-Fifth and

Fourteenth Amendments. @urrity v. New Jersey, 385 U.S.

493. (1967).0 °°" Oe - oe Se ot a

ie é

'. After-testifying that’ if he had found Palmer’s companion in

an apartment on lawful business, he wouldn’t have permitted

the citation, he ‘said (in response to Palmer’s questioning),

. “A. We would have brought you into the-station and had

_,you sign a waiver card‘that we detained you?

What is this waiver card?, If | would refuse. to sign

' the waiverrcard, then what would have happened to

Rarer ga + me? A os

? : A. Well, then, we weuld have detained you, probably °

ee issued -the citation, because: you refused to sign the

card. : : hci

Q. You would have issued a citation for my arrest even

_ though you found this dady lawfully at. the building; -

_ is that wHat you're saying? Sea

— . AY. That.is right. If you ‘refused to sign the card. (A.

* ‘4 >. eae ‘

The existence of the “satisfactory account” requirement in the ‘

ordinanse obviates the necessity: of deciding the otherwise: important,

but in this context irrelevant, question of whether the requirement of *

"+ Miranda warnings applies to street detentions, i.e. whether the offi-

~cer’s removal of Palmer from his. car and search of him (A. 7),

marching of Palmer into the apartment house at gun-point (Ay 8, 12-

; 13), or holder for investigation at the station (A. 6-7) constituted de- -

privations of “his freedom of action in any Significant- way.” Miranda

. v.. Arizona, 384 U.S. 436,444 (1966). not area ae

__, With the ordinance on.the books, the officer could not have ad-_

- vised Palmer that he hdd a sight to’ remain silent. ‘He would have had

-.to say, “If you [do] say anything, it will be used against you; if you

-do not say anything, that will be used against you.” - McCarthy. v.

United States, 25 F.2d 298, 299 (6th Cir. 1928)...

| ote ge AIL cee |

_} ._ THE EUCLID SUSPJCIOUS PERSONS ORDINANCE UN- ~.

- |.“ CONSTITUTIONALLY INFRINGES - FREEDOM OF - -

| ‘MOVEMENT B® ALLOWING ARREST, DETENTION,

_ AND CONVICTION ON SUSPICION IN VIOLATION OF -

- a . ‘ o.: 7 . -"

4 i : P . ™

3 | . a a, ; : ‘

: ot. ; : : ° E é

Py . ae j 29 , r pa

a Pa eee are See eitals SAT re

‘ rr) : A tye 5, is . : : : : Ne ‘g

ey . :

Freedom’ of movement is basic in our scheme of values”

“and may not be deprived without due process of law. Kent -

" . * ® Dulles, 357 U.S. 116, 126 (1958).*" As the Cpart‘noted:

an a “Our nation has thrived on the principle that,.out-

‘side areas of plainly harmful conduct,‘ every »Ameti-

can is left to’ shape. his ownelife -as he thinks best,

-da what ‘he pleases, go where he ‘pleases.’ ” Td,

quoting Chafee, Three Human Rights in the Consti-_

» tution of°1787, 197 (1956). , ;

Of course this freedom is not absolute-and must-be re-

conciled-with the interest of maintaining order. The task .

. of accommodating the often opposing interests in liberty = +, -

' .and order was undertakén by the framers of the Constitu-

-* tion and Bill of Rights. The resultant-delicate balance is re- «

_ flectéd in qn escalating scale of constitutional burdens of

proof (emanating from the Fourth and Fourteenth ‘Amend-

ments) required of government before it may deprive per-

sons of their liberty in the interest of order. — | ;

The quantum of evidenc®required by’ each of these con-

stitutional- burdens of proof is directly #elated to the mag-

nitude of the deprivation of liberty. to be justified. Thus a

brief, temporary intrusions«on the liberty ofa’ citizen: by'a

“police officer in the course of a “yireet encounter’’ re- }

quires that the officer fie cen Mielke 3!

' “be able ‘to point to specific and articulable facts

which,. taken together with rational inferences from

those facts: reasonably ’ warrant that intrusion.” ~>,-

Terry v. Ohio, 392.U.S. 1, 21 (1968). ,

aes ba Regarding the concern of the framers’ of the- Fourteenth Amend-

“ment for the right of the freedifian “to go where he pleases” see Bell

_v. Maryland: 378 U.S. 226, 293 (1964); and footnote 24, supra.

¢ i a

2." aa? aa

nr eg 30

The more serious deprivation of liberty represented by an

arrest demands that the Srresting officer have “probable

cause”, defined ag

“facts and circumstances thin [his] knowledge and

of which [he] had reasonably trustworthy informa-

. tion. . . sufficient to warrant a prudent man in be-°

° lieving that the [arrestee] had committed or was

commiting an offense.” Beck-yv. Ohio, 379 US. 89,

91 (1964).

‘The ultimate deprivation of liberty that ensues from the

conviction of an accused may not be levied

“except upon proof beyond a reasonable doubt of |

every fact necessary to constitute the crime with |

which he is charged.”. /n re Winship, - 2 UM a

90S. Ct. 1068, (4970). iF

It has been abundantly demonstrated’ that suspicious per-

son and vagtancy type laws_are calculated ‘to circumvent

thése constitutional standards and facilitate detentiof, ar-

_ rest, search, interrogation and comvictidn of suspected crim- .

inals with respect to whdém the authorities do not have the

requisite quantum of evidence.*? By making the generation

of suspicion itself the substantive offense, such “laws” make

hash out of the delicate balance which the Constitution

seeks to establish between the societal interests in liberty

- “President's Commission . . ,, Task Force Report: The Courts

103 (1967), Douglas, Vagrancy and Arrest on Suspicion, 70 YALE

ages: Foote, Vagrancy-Type Law and Its Administration,

104 U. PA. L. REV. 603, 628-630 (1956); La. Fave, Penal Code

. Revision: Considering the Problems and Practices of the Police, 45 -

TEXAS L. REV. 434, 451-452 (1967). >

An interesting illustration of .this phenomenon was People v.

Craig, 152 Cal. 42, 91 P. 997 (1907) where a police officer who-

‘. Jacked statutory grounds to arrest for an assault said; “Well the only

thing we can do—we didn’t see it—we will go and vag them... ,

Thus, on facts which should justify at most a “stop ond

frisk”’ of ‘ames Palmer,*? the City of Euclid now seeks to .

uphold a conviction and sentence of imprisonment. While .

the advocates of allowing police “stop and frisk”” upon x

less than “probable cause” have relied on the argument that

a lesser intrusion requires a lesser quantum of, evidence,“

if this ordinance is upheld then “stop 4nd frisk” facts will

henceforth be the basis for arrest and conviction. The op-

erative standards of justification will be reduced to “‘afti-

culable suspjcion’ to suspect” ’ for a stop and frisk, ** ‘pro-

bable cause’ to suspect” for an arrest, and “proof of

suspicion "beyoutis reasonable doubt’” to convict.

The salt in these grievous-constitutional wounds will be. 3

ment, the effective-burder-of proof will be on the defend-

ant...”

IV.

THERE IS NO NECESSITY FOR THE EUCLID SUSPI-

CIOUS PERSONS ORDINANCE, AND TO THE EXTENT

THAT IT SERVES LEGITIMATE PURPOSES, OTHER °

MEANS LESS DESTRUCTIVE OF PERSONAL LIB

ERTY, ARE AVAILABLE. ;

One well-established principle by which this Court tests

the constitutionality of statutes affecting — areas of

liberty is that

“(Elven though the governmental purpose be legiti-

* mate and substantial, that purpose cannot be pur-

sued ‘by means that broadly stifle fundamental per-

Because the question in this case is whether or not Palmer's con-

viction for * ‘being | a suspicious” person may stand, it is unnecessary .

‘to decide whether “being a suspicious person” justified the lesser in-

* trusion of the “stop and frisk” (A. 7) under Terry, or the “arrest”

- (A. 7-8) under Beek v. Ohio, supra, and Peters vy. New York, 392

US. 40 (1968).

“Terry v. Ohio, 392 US: 1, 10-11 (1968),

BA ae Bs

3) s

sonal liberties when ther end can. be more narrowly

achieved. The breadth of legislative abridgement

achieving the same basic purpose.” Aptheker v.

Secretary of = mt 378 US. 500, 508 (1964), quot-

ing from Shelton v. Tucker, 364 US. 479, 488

(1960). ‘

- If there ever was a necessity for suspicious persons ordi-

nances (i.e. that the Fourth Amendment talismans of “ar-

‘rest’. “search” and, “seizure” did not allow for the “set of

flexible responses” required of police*in the context of

street encounters) that necessity has been dissipated by this

Court's decision in. Terry v. Ohio, 392°US. 1 (1968). With-

_out prescribing the details, 45 the Court has held that 7 '

Fourth’ Amendment is not oblivious: to the “reasonable” in-

vestigatory and protective needs of police.

In the wake of Terry. there are a number of feasible al- -

ternativés to the Euclid suspicious persons ordinance for ef-

fectuating police authority to prevent crime and investigate

suspicious circumstances and persons. Without, in any way,

approving Of them as passing constitutional muster, appel-

lant submits these alternatives for the Court’s considera-

tion, because they are, at least, less destructive of important

- .. federal constitutional rights than the Euclid ordinance:

These alternatives are:.

' The Uniform Arrest Act, see Warner. 28 VA, L.

* REV. 315°(1942)

The New York “Stop and Frisk" Law, N..Y. Code

Crim. Proc. 8 180-a

J ‘The Model C ode of Pre-A rraignment itil. Ar-

; ticle. 2 (T.D. No. 2), American Law Institute.

Common law authority recognized by the Cuyahoga ~

County Court of Appeals in State v. Terry, 5 Ohio

App. 2d 122. 214 N.E. 2d 114 (1966).

For a thorough exposition of the issues raised by Terry see La

Fave, “Street Encounters” and the Constitution: Terry, Sibron,

Peters and Beyond, 67 MICH. L. REV. 39 (1968).

, Additionally, the Model Penal Code’s Article 5 seated to

* inchoate offenses furnishes a vehicle for crime prevention.

by drawing the line between attempt and non-criminal_prep-

aration further away from the final act. :

' The common features of all of these alternatives are that -

they do not permit arrests Or convictions On mere suspi-

cion, they do not make it a crime to exercise the. privilege

against self-incrimination, and they do not shift the burden

of proof to the defendant, while still affording nenpee po-

lice authority.

* All sides of the crime control versus individual liberty de- .

bate, from Professor Foote in 19564 to the President's

Commission on Law Enforcement and Administration of

Justice in 1967* to Proféssog La-Fave in 1968%* have ur-

ged that the subterfuges of vague suspicious person and—

vagrancy laws be abandoned in favor of a direct resolution

of the question of police power to deal with persons en-

countered in suspicious circumstances. -

The existence of equally feasible less drastic alternatives

means that this Court can make a ‘significant contribution

to constitutional liberty at no cost to law enforcement by

striking down the Euclid suspicious nas ordinance,

Cc ONC LUSION

The ultimate issue in this case is not the scope of police

investigative power, but rather, whether after the police

have stopped, frisked, starched, arrested and interrogated _

James Palmer and discovered no evidence of any substantive

crime having been committed, the City of Euclid can then -

convict and imprison him for having aroused suspicion.

* Vagrancy- -Type Law and its Administration, 104 U. PA. L. REV.

603, 649:

* Task Foree Report: _ The Courts 103 (1967).

‘ “Footnote 45. supra, at 134. !

The cry of Star Chamber, like the cry of * ‘wolf, has

probably been uttered ‘too often and too lightly in ¢liv past

to have the inipact that it should. However, this case and

the City of Euclid’s suspicious persons ordinance contain,

albeit in microcosm, every threat to--human liberty posed

-by that bitter experience. On mere’ suspicion James Palmer

and all other victims of such ordinances are deprived’ of _

‘their liberty, compelled to answer incriminating questions

to the. satisfaction. of officialdom meng pain of imprison- —

ment, and requiréd to bear the burden of proving their own

innocence of vague suspicion. ‘FG Fourth and Fifth *

Amendments were calculited to prevent just such occur-

-rence and they “run almost into each other" to protect. —

“the right most valued by civilized’ men”. “the right to be

Jet alone’ Pag | 6 terse ati.

These ineosts to fundamental liberty in the ordinance

are made more pernicipus by reason of the vagueness which

facilitates its discriminatory application in aid of racial sepa-

ratism. The Fourteenth Amendment was calculated to pre-.

vent that.

The Euclid suspicious persons ordinance contains the

seeds of destruction of hallowed liberties that respresent the

. product of 194 years of struggle for human dignity. a

must be nullified.

WHEREFORE, it is respectfully mr that the judgment

below be reversed.

NIKi Z. SCHWARTZ

JOSHUA J. KANCELBAUM

Counse! for Appellant

August 5, 1970

* Boyd v, United States, 116 U:S. 616, 630 (1886).

“Olmstead v. United States, 277 U.S. 438, 478 (1928) (Dissent-

ing opinion of MR. JUSTICE BRANDEIS).

October TERM 1979

“No. 1443 ;

Jurisdictional Statement ‘thavetlahtes”

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.