Reply Brief for the Petitioner — Papachristou v. Jacksonville

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SUPREME COURT, Us.

LIBRARY |

SUP? UBT Ls

Supreme Court, U.S.

FILED ..|-

‘IN THE

ome Court of the United-Stai ieee.

No. 70-5030

MARGARET PAPACHRISTOU, ET AL.,

Petitioners, Ss

: v.

. an ;

CITY OF JACKSONVILLE ~

-“

ON WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL,

FIRST DISTRICT OF FLORIDA

- PETITIONERS’ BRIEF

SAMUEL S. JACOBSON |

DATZ, JACOBSON &

' DUSEK

320 Southeast First a,

Building —.

- Jacksonville, Florida 32202

. ee Counsel for Petitioners —._ -

- a

(i)

TABLE OF CONTENTS ze

OPINIONS BELOW.......... isaes ces aenena ee coe, Ay

JURISDICTION ............--- ngettev edge a¥gcaee'e “2

QUESTION PRESENTED ............. re |

ORDINANCES, STATUTES AND oe ae

CONSTITUTIONAL PROVISIONS INVOLVED... 2.2.32

STATEMENT OF CASE ...2.....20500ceeeeeeeeeet 5)

Statement of Facts re Cavan ous a ‘ane eae os §

Statement of Procedures’Below ..... ...% wage anes dH

SUMMARY OF ARGUMENT ...............0..0 000: 12

ARGUMENT ................00% euueeew veers: 14

Improper Exercise of Police Power ........ eee cece IS

Void for Vagueness ........ ones Caan stueeaee , |

Lack of Notice .......6...0000, ere rere . +22

Lack of Enforcement Standards ........ soa ete B

_ + Restriction of Breathing Space ...... es we we core ee Oe

» Use for Arrest and Detention on Suspicion Alone ....... 26 |

_ Additional Rights and Inpgfunities .... .. . eeeet srkeas. 0

| Denial of Equal Protection ones td dees « ree os . 28->

Cruel and Unusual Punishment or Unjust

Punishment in Violation of Due Process ....-.......- 30

_ Involuntary Servitude ...... webderees Lteewgeeee 0.

Privilege Against Self Incrinfination wer eevee eee 30

- Right of Travel and Movement .............5.. ee BL

Double Jeopardy........... ude Soe eaes “Slag ee Ni

CONCLUSION 2... 0.6.0.2. eee ee cece eee wees 31

og TABLE OF AUTHORITIES |

Cases: w SE

|. Adickes v. Kres# & Co., 398 US. 144 (1970) ..... 0.200.025 24

Alegata v. Commonweakh, 231 N.E.2d 201 (Mass. 1967) sees 14

@.°

(ii) a

Aptheker v. Secretary of State, 378 U.S. $00 (1964) 2.2... 31

Amold v. City and County of Denver, 464 P.2d 515 —

(Colo. 1970)... 0... pee cc eede recess 14

Baker v. Bindner, 274 F. Supp. 658 (W.D. Ky. 1967) ee 14

~ “Balizer v. Shave, 481 P.2d 700 (NM. Ct. App: my: eerene a “HM...

Bouie v. Columbia, 378.U.S. 347 he) Soa rr ivan ok

Broughton v. Brewer, 298 F. Supp. 260 (S.D. Ala. 1969)... . . 140

City of Reno v. Second Judicial District Court, ae P2d4 ;

(Nev. 1967) . (<eaeeea Cette ge wb ee a owe ewe oe ews 14

Connally v. General Constr. Co., 269 US. 385 (1926) hauees 21

Davis v. Mississippi, 394 US. 721 (1969) ee ee ee » 29

Dombrowski’ v. Pfister, 380 U.S. 479 (1965)... 6..6...2.. 26

Edwards v. California, 314 U.S. 164 (1941) - ..°. sean re | | |

Fenster. v. Leary, 229 N.E.2d 426 (N.Y. 1967) ........... 14

- Giaccio vy. Pennsylvania, 83 U.S. 399 ( 1966) robes ebtaceus 24

Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) ..... 15°

Goldman v. Knecht, 295 Supp. 897 (D. Colo. 1969) ....... 14

Griswold v. Connecticut, 381 U.S. 479 (1965) / fib sa wae 12,19

Harper v. Virginia State Board of Elections, 383 U.S. cnt

. 663, 668 (1966). ... 6.226... ‘gy eeaeee eee ene ohana: -30

Headley v. Selkowitz, 171 So.2d 368 (Fla. 1968) ......... 24

Herndon v. Lowry, 301 U.S. 242 (1937) pavousedebteges 24

~ Johnson v. State, 216 So.2d 7 (Fla. 1968) ..... eee ... 12,31

Jones v. Peyton, 411 F.2d 857 (4th Cir. 1969) .......... 14

Kent v. Dulles, 357 US. 116 (1958) .............0..05. 31.

Landry v. Daley, 280°F. Supp. 968 (N.D. Il. 1968) <........ 14

~. Lanzetta v. New Jersey, 306 U.S. 451 (1939) ............ 13,23.

_ ‘Lazarus v. Faircloth, 301 F. Supp. 266 (S.D. Fla. 1969) tease 14

Leary v. United States, 396 U.S. 6 (1969) ...... (eases 12

Ledwith v. Roberts, WKB. 2321937) Shoot cc dus 16,17

Malloy v. Hogan, 378 USS. 1 (1964) ....... ewe es sseee WO

- Morales v. New York, 396 U.S. 102 (1969) ............ 29.

(iti) ©

. sS : »

“ NAACP. v..Button, 371 U:S. 415 (1963). 2.

Palmer y. Euclid, US. (No. 143 decided

~ May 24, 1971) 2... eee ee re ;

Ricks ‘v District of Columbia, 414 F. ed 1097 _ =.

(D.C. Cir. 1968) 2... ee. i

~-~—... Rinaldi v. Yeager, 384 U.S. 305 inka) . Bl, |

Robinson v. California, 370 U.S. 660 (1962) oe in ts ase’

Rodriguez v. Culbreath, 69.So.2d 58 (Fla. 1953)......... .

Scott v. District Attorney, Jefferson Parish, 309 'F. Supp.

(E. La. 1970) ..... 2. eg _

" Screws v. United States, 325 U.S. 91 (1945) ....., ee eneee

Shelton v. Tucker, 364 US. 479 (1960) ........... ee as

Shuttlesworth v. City of Birmingham,.382 U.S. 87 (1965) eee

‘Smith v. Hill, 285 F. Supp. 556 (E.D. N.C. 1968) -......... .

‘State v. Grahovic, 480 P.2d 148 (Hawaii 971) ia see oe oe —

"Terry v. Ohio, 292 U.S. 1(1968) ... re

Territory of Hawaii v. Andula, 48 48 F.2d 171 (9th Cir. 1931) .

Thornhill v. ‘Aldbama, 388 US. me (1940) ......, eae e'eua .

Trujillo v. State, 187 So.2d 390 (3rd Dist. Fla. 1966) ..... is

United States v. Guest, 383 U.S. 745 (1966) ..... peewee ae 4

United States v. Harriss, 347 US. 612 Cb | Sanne are re

United States v. Kilgen, 431 F.2d 627 (Sth Cir. 1970) .....,.

United States v. Margeson, 259 F. Supp. 256 (E.D. Pa. 1966) .

United States v. National Dairy Prods. Co., 372 U. S. 29 So,

CPMG8) ssh eeel os c went needs ace Ganiec nus: |

, Wainwright v. City of New Orleans, 393 U.S. 598 (1968) .....

Wheeler v. Goodman, 298 F. Supp. 935 (W.D. N.C. 1969) .

_ In. Re: Winship, 397 USS. 358 (1970) .... 2. ee,

Winters v. New York, 333 U.S. 507 (1948) c* eeiaes as

Wright v. Georgia, 373 U.S. 284 (1963) ............... _

Wright v. North, 91 So. 87 (Fla. 1922) ...... eeuncee ere

_* &

(iv)

Statutes and Ordinances: .

Florida Statutes: ss, . |

_ Section 775.084 .............. banechaeewans “eee 20.7

~~ Section 856.02 ....... en ae 3

oO 0 eseee ecg eee ee 20

| Chapter 71-132, 1971 Regular Session, Florida Legistaturé ...3, 20

Jacksonville Ordinance Code: _ | . . #

.. Section 304.101 (1971)... 4 as akan ee ieee 3

Section 18 (1965) ../........00. ee eee 3

| Section 26-57 (1965) jeehaessauesusetsiadschéans, 2

al Li a ee ere Sewanee: leeees 3

English Statutes: . . —— . 7

39 Bliz. I, c. 4 (1597) ...........5. ees geen . 18

Bd. VE, 6.31547) iy veces eee tba we ns eee eee IT, 18-

| 2Hen.V,c. 4 (1414) 2... a fe awaeneeneus 16

| 12 Rich. HT, ¢. 3 (1388)... eee eee view 16:

-\ 7 Rich. I, c, 5 (1383)... 0.0... eee eee eee aseeees, 16

| 2 Rich, I, c. 6 (1378)... weeeeees eeeas auatece 16

1 Rich. II,,¢. 6 (1377)... .....-.-. Seen awian se cits 16

25 Edw. Ill, c.7 (1350) ............06-. esa eeeees - 16

25 Edw. Il, c. 1 (1350) oo eke. 16

23 Edw. Ill, c..1 (1349) 2... eee ee fe eweseds 16°

27 Hen. VIII, c. 25 (1535) ..... Lecce weeeces eateen 17

22 Hen. VIII, c. 12 (1530) .....0.5..0.2000..0002. 17

19 Hen. VIL, c. 12 (1503), 2... 0 oes c eee eee eeeees 17

Unit&d States Constitution: - SN

Article 1, Sec. 8 Cl... . wednlvegsetvevedas eee *-4@-

Atticlé IV, Sec. 2 oe ab« obec ececee (tates aa porseeee’ 4

Amendment 4 reer re pene enas Owes Popes 24

| (y) a —- |

_ Books, Reports and Miscellaneous Materials: er re

- Amsterdam, Federal Constitutional Restrictions on the |

_ Punishment of Crimes of Status, Crimes of General

Obnoxiousness, Crimes of Displeasing Police Officers, ~

3 Crim. L. Bull. 2051967) ....... sieeve d nde ed 14,21

' IV. Blackstone, Commentaries, Chap. XIII ga ee 17

Coulton, Medieval Panorama, (The Noon Day Press, _ |

_ New York; 1955) 0. eee ess

Douglas, Vegrancy aid Arrest ot Suspicion, 70 Yale - “ih a

LJ.1(1960) 2. 0s. etl. ceed acs 15,28

“Feedback” WICT- TV (Jacksonville Florida, March 7, 1969). . 27

Federal ureau of Investigation, Crime: in the United States,

Uniform Crime Reports, 1969, Wnijed States Government 7

Printing Office 1970) ess wese She es We ee as Woe ye ws -« af

Foote, V cy-Type Law and Its Administration, 104

U. Pa. L. Rey. 603 (1956)... eee -15, 19, 28

'y and Other Crimes of Re mal Condition, a

a _ L. Rev. 1203 Sk) a rr Torre rT a3

_ LaFave, Arrest: The Decision to Take a S CO \

_ into Custody. (The Administration of ties 4

' Justice Series, American’ Bar Foundation, 1965) . tebueauea 28

McClure, Vagrants, Criminals and the Constitution, - =

40 Denver L. Center 5.314 (1963): ees ca. Neawaee 1S:

Minutes of Special Meeting, Community Relations ee :

Commission of the City Of Jackeomriie, April 23, 1969-0... 0 21

Note, Constitutional Attacks on Vag Laws, KO ;

20-Stanford L. Rev. 782 (1968) ........ ‘ad's bane peeee dy’ 1S |

Note, The Vagrancy. Concept hecossiiaved: Problems \,

_and Abuses of Status lity, 37 N.Y.U. L. Rev. a

‘102 (1962) . 60. Catme veth rh Mh sae céa-« belede 13, 00.26

_ Note, Vegrency and Related Ofekaes, 4 Yang Gi

Lib - Civ. Rights L. Rev. 148 (ONG

“.. Note’ , Vagrancy—A Study in Constitutional Obaglescence, -

22 U, Fla. L. Rev. 384 (1970) E>

oR CUS COC OEE OKO 4006 BO”

» 39

| (vi) oo

| The Courts, Reet of the Task Force on Administcation

of Justice, The Presigent’s-Commission on Law Enforce-

-ment and Administration of Justice ©: S, Government

‘The Police, Report of the Task Resse on Police, The

- President’s Commission on Law Enforcement and |

"Administration of Justice WU. S. Government’Printing Office)... 28

Sherry, Vagrants, Rogues and Vagabonds, Old Concepts

in Need of Revision, 48 (Calif. L. Rev. 557 (1960). ... c++, 15,18

Printing Office 1967)... 26.2.2... 008, wee 21,25527-

“Criminal Law of England

ndon, 1883)" .:........ ateaees, 16.

* Turner (editor), K ’s Outlines of the Criminal bas a

(Cambridge University Press, 18th Edition, 1962) ........ . 16

aes ;

. 4 ; .

IN THE SUPREME COURT OF THE weerreny/ aunres

ar ae "No. 70-5030" | :

_ MARGARET PAPACHRISTOU, ETAL,

oe Petitioners, =

. oe , : ‘* ; we,

| CITY OF JACKSONVILLE.

* :

ry * ,

. “ ‘

, *

_ > ON WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL, ‘

: ‘a FIRST DISTRICT OF FLORIDA. PLE

4 thy. t ; , e j

7s a wine os

| PETITIONERS’ BRIEF

6 . .

OPINIONS BELOW.

_.. The order of. convietidn‘ entered- by the Jacksonville

» Municipal Court and the order of the Circuit Court for the

Fourth Judicial ‘Circuit of Florida affirming the convictions

are unreported. The opinion of the District Court of Appeal, .

First District. of Florida, is reported as Brown y. Cityof — -.

- Jacksonville, 236 So.2d 141 (1st Dist. Fla. 1970). ne

o é

: 2 ; : e

: JU RISDICTION

‘The atunes authority for this court’s jurisdiction is 28

U.S.C. 12$7(3). ° |

The judgment of the District Court of Appeal, First Dis-

trict of Florida was entered on: June 9, 1970, and. became |:

final on June 29, 1970. By an order of Mr. Justice Black,

entered on September 10, 1970, the time for filing this

petition was extended to October 6, 1970... a

\ : QUESTION PRESENTED

\. Are the City of Jacksonville Vagrancy Ordinance and .

\ Florida Vagrancy Statute constitutional?

ORDINANCES, STATUTES, AND CONSTITUTIONAL

on _ PROVISIONS INVOLVED -

.. Petitions a re convicted under Jacksonville Ordinance

Code §26-57 ( 65)" providing that:

| “Rogues and Yasabonds, or dissolute persons who go

about begging, on gamblers, persons who use

juggling or unlawful games or plays, common drunk-

ards, common night walke thieves, pilferers or -

. pickpockets, traders in stolen p rty, lewd, wan- -

~ ton and lascivious persons, keepers of} gambling places,

common railers and brawlers, persons wandering or

strolling around from place to place without any -

. lawful purpose or. object, habitual loafers, disorderly

persons, persons neglecting all lawful business and

- habitually spending their time.by frequenting houses

of ill fame, gaming houses, or places where alcoholic

* beverages are sold or served, persons able to work

— but habitually living upon the earnings of their wives |

‘ or minor children. shall. be deemed vagrants. and,_

___' The Jacksonville vagrancy ordinance was recently renumbered to

_ ,€330.107. It was also modernized by eliminating “juggling.” The.

current ordinance is otherwise identical to the one e under which _—

. tioners were convicted. | ;

—

_ upon conviction in the Municipal Court. shall be

punished as provided for Class D offenses.” 2

_ __ The Florida vagrancy statute (Florida Statutes § 856.02),

also affects petitioners because of an assimilative crimes

‘ ordinance (Jacksonville Ordinance Code §27-43), making

the commission of ‘any Florida: misdemeanor a Class D -

offense against the City of Jacksonville. |

“Rogues and vagabonds, idle or dissolute’ persons who 2

go about begging, common gamblers, persons who

use juggling, or unlawful games or plays, common

pipers and fiddlers, common drunkards, common

night walkers, thieves, pilferers, traders in stolen.

property, lewd, wanton and lascivious persons,

‘keepers of gambling places, ‘common Trailers and

brawlers, persons who neglect their calling or employ-

ment, Or are without reasonably continuous employ-

ment or regular income and who have not sufficient

__ Property to sustain them, and misspend what they

earn without providing for themselves or the support

of their families, persons wandering or- strolling.

around from place to place without.any lawful pur-

pose or object, habitual loafers, idle and disorderly

persons, persons neglecting all lawful business and ;

habitually spending their time by frequenting houses .

of ill fame, gaming’ houses or tippling shops, persons

able to work but habitually living upon the earnings .

of their wives or minor children, and all able-bodied

‘male. persons over the age of eighteen years who are

. without means of support and remain in idleness,

shall be deemed vagrants, and upon conviction, shall

___be subject to the penalty provided in $856.03.”3 }

- 2Class D offenses, when petitioners were convicted, were ae:

able by 90 days imprisonment, $500 fine, or both. Jacksonville Ordi-

nance Code §1-8 (1965). The maximum punishment has since been

71-132, 1971 Regular Session). The phrase “common drunkards” was

The following portions of the United States Constitution

are relied upon:

Article I, 88, Cl. 3:

The Congress shall have the power to. . . regulate

Commerce among the several States. .

Article IV, $2, Cl. 1:

The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in the several

States.

Amendment 4: ;

The right of the people to be secure-in their persona.

houses, papers, and effects, against unreasonable

_ searches and seizures, shall not be.violated, and. no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly

describing the place to be searched, and the person

or things to be seized. |

Aimindiinant . an .

*.* * nor shall any person bs subject for the same

offence’ to be twice put in jeopardy of life or limb;

"nor shall be compelled in any criminal case. to be a"

witness against himself, nor be deprived of life, lib-

' erty, or property, without due process of law..

' . Amendment 8:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

. inflicted...

* Amendment 14:°

No State shall make or enforce any da which shall

abridge the privileges or immunities of citizens of

. the United States; 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.

‘STATEMENT OF THE CASE

Petitioners were all convicted of vagrancy in the Jackson-.

ville Municipal Court. . <a"

There were five separate cases at the Municipal Court

level—later consolidated on appeal. The separate cases were:-

1. City of Jacksonville v. Margaret Papachristou, _

Betty Jean Calloway, Eugene E. Melton, and Léo- ..

nard Johnson. |

2. City of Jacksonville v. Jimmy Lee Smith. ©

3. City of Jacksonville v. Thomas Owen Camp-

4. City of Jacksonville v. Henry Edward Heath.

5. City of Jacksonville v. Hugh Brown. -

_ STATEMENT OF FACTS

’ The parties have stipulated to the following statement of

' facts for each separate case. The stipulated statements are

.’ based on stepogsaphic transcripts of the Municipal Court:

trials. The transcripts are not reproduced in the Single

Appendix but are included in the Record on file with the

Clerk of this Court.

_ City of Jacksonville y. Margaret Papachristou, Betty.

Jean Calloway, Eugene E. Melton and Leonard Johnson -

Papachristou, Calloway, Melton and Johnson were charged

on Apftil 20, 1969, with .“‘vagrancy—prowling by auto.”

Papachristou and Calloway are white females; Melton and |

‘ Johnson are negro males. (App. 10, 12, 14, 16) -

Papachristou was a 23-year old enrollee in a job training

program sponsored by the Florida State Employment Serv-

ice at the Florida Junior College in Jacksonville. She was

living with her parents while separated from her husband.

(Papachristou Tr. 53-56): .

- Calloway was-a 22-year old typing and shorthand teacher

at the Northeast State Hospital (a State mental institution)

in Macclenny, Florida, a small town outside Jacksonville, in .

which she had lived her whole life. She was the owner of

the automobile in which the four defendants were arrested.

(Papachristou Tr. 56-59).

Melton was a 24-year old Vietnam war veteran who had

several months before been released from the Navy after

' , nine months in a-Veterans Administration Hospital reéover-

ing from Vietnam war wounds. On the date of his arrest,

he was supporting. himself as a parttime: computer. helper

while attending college as a fulltime student at a college in

Jacksonville. (Papachristou Tr. 40-62).

Johnson was a 24-year old tow-motor operator in a groc-

ery chain warehouse. He was a lifelong resident of Jackson-

ville. In fact, while he was being arrested as a vagrant, some

members of his: family who had' been passing by attempted

unsuccessfully to vouch for him. (Papachristou Tr: 46-52).

Calloway, Melton and Johnson had never been previously

arrested. Papachristou had once before been convicted of a

municipal offense.

At the time of their arrest, the defendants were all riding

in Calloway’s car on a main thoroughfare in: Jacksonville.

_ They had gone to a restaurant, owned by-Johnson’s uncle,

‘for something to eat and were on their way to a nightclub.

(Papachristou Tr. 20-27, 40-61).

The arresting officers denied that the racial, mixture of

the ‘defendants played any part in the decision to arrest

them. The officers said they arrested the defendants because

the defendants had been seen stopped near a used ‘car lot

which had been broken into several times. The officers

admitted, however, that they had made no effort to find -

out if any breaking and entering-had occurred on the night

in question, ‘had had no reports of any breaking and énter-

ing on the night in question, had advised no detectives or

other investigative officers of the arrest of the defendants,

Se a

and had made no effort to denn the vagrancy china and

release ‘the defendants when no evidence of any theft or

otlter illegality materialized. (Papachristou Tr. 36-39). .

‘After arrest, bail was set for the defendants at the maxi-

mum amount allowable under the Police Department bail

schedule. Further, an unidentified caller-from the Police

Department telephoned Papachristow’s parents that she had.

been: out with a negfo. Melton, who had given his unlisted

_ telephone number to the booking. officer, also began receiv-

ing threatening telephone calls.” (Papachristou Tr. 53-62).

All four of the defendants were found to be vagrants and

were sentenced to ten days in jail. The sentences for Callo-

way,. Melton and Johnson were suspended because they had

never before been arrested. Papachristou was ordered to

serve her sentence because of -her previous Municipal Court

conviction. (Papachristou Tr. 65-72). (App. lf, 13, su: 17).

City of Jacksonville v. Jimmy Lee Sn ith

Jimmy Lee Smith ‘and a codefend . Milton Henry, w were

. Charged: in the Jacksonville Municipal Court with “vagrancy

—vagabonds. *” (App, 5).

Smith was a 23 year old parttime praia pa ae and

parttime organizer for a negro political organization. He

had a common law wife and three children who were sup-

ported by him and his wife. : He had previously been arrested

— several times, but: had been — only once, in 1961.

(Smith Tr. 17-24). 7 q\

Smith’s -codefendant was an. 18 year old high choo!

student with no previous record of arrest. (Smith Tr. 8-16).

Smith and his codefendant were arrested between 9:00

and 10:00 A.M. on a weekday morning in a downtown

Jacksonville business area. Théy were at the time waiting

‘ for a friend who was to lend them a car so that they could

-. go apply for jobs reportedly available at a produce er

(Smith Tr. 10-21).

Because it was cold and Smith had no jacket, te went

at one point to a dry _— shop to wait, but left when

requested to do so. They thereafter traveled back aad forth

-_ two or three times over a two-block stretch looking: for their

friend. (Smith Tr. 14-20).

After approximately ten to twenty einisies. two police -

_. officers arrived, ‘apparently summoned by store-owners who

-; were wary of Smith and his companion. (Smith Tr. 14-20).

‘Smith and his codefendant made no attempt to avoid the

officers and explained their situation to them. The officers.

searched both subjects and found that neither had a'‘weapon.

Both Smith and his companion were nonetheless arrested

because they had no identification and because ‘‘their story -

just didn’t séem to work from what we could see.” (Smith

Tr. 6-10, 30). >

Because Smith’s codefendant had no previous arrest

. record, he was-acquitted. ~

Smith, however, was administered a tongue lashing about

his character, his ‘‘open adultery,” his “bastard children,”

‘his arrests, and his general demeanor. The judge concluded

- with the announcement that “you are. not what we call a

good citizen, a réspéctable citizen.” ‘He then sentenced

Smith to 30 days. imprisonment but suspended the prison -

sentence with the admonition that Smith would go to jail

“|. ..if they pick you up for this again and you are con--

viewed ”. (Smith Tr. 25- 36). (App. _ en

City of. Jécksomiville v, Henry ‘Edward Heath

On March 18, 1969, at approximately 8:00 P.M., Heath

_ andA codefendant were arrested for “‘vagrancy— loitering™

“vagrancy—common ‘thief. * (App: 6).

Heath was a lifelong resident of Jacksonville and- was

employed at a local-automobile body shop. -Heath’s code-

fendant was also a self-supporting Jacksonville resident.

‘Heath had previously been arrested, but his codefendant

= had no arrest record. (Heath Tr. 19-22; 24).

Heath and the codefendant were arrested when they —

drove up to.a residence shared by Heath’s girlfriend and

some other-girls. When Heath and the codefendant asrived

: .

. 7

P \ Ps

7% e

< . , *

9 is , | 4 ; 7

(in the codefendant’s car), some vais officers * were at aes eS é

premises in the Process of arresting another man. Goat ;

Tr. 24-27). aes

When Heath and his codeiiiniians started backing out of . |

the driveway, the officers signaled-to them to remain. Both

men. were then required to get out of the car, whereupon. —\\.

they were searched and the automobile was searched. Dat

Tr. 4-27). ote

_ Although no contraband or incriminating mbiter was.

found, both men were placed under arrest for vagrancy as

’ .aforesaid. The charge “vagrancy—common thief” was

‘selected for Heath because he was reputed to be a thief. :

_ ‘The charge “vagrancy—loitering” was placed against the. co- .

defendant because of his standing around the driveway,

which the officers admitted was ‘done only at their com-

mand, (Heath Tr. 4-27).

Heath’s codefendant was acquitted. ‘ SREP al oo ok sans oe

- Heath was found guilty and was sentenced to ten days BS:

| imprisonment. (App. 7) BS

City of Jacksonville v. ‘Thomas Owen Campbell

Campbell was arrested as he approached his home « on

April 18, 1969, very early in the. morning. He was charged Sos5

with “vagrancy—common thief.” (App. 8).

The arresting officer testified that he stopped Campbell

because Campbell was traveling at a high rate of speed. He

placed no speeding charge against Campbell, however. The,

Officer first said that he was in the vicinity observing traffic,

_ even though the arrest took place at 2:30 A.M. ip a residen-

tial neighborhood. The officer then admitted that his pres:

ence in the vicinity was because nage ares lived there. :

(Campbell Tr. 48). Pk 2

Campbell .was found guilty and was oo a {odsy

'. suspended pga: (App. aay

er oes

City of Jacksonville », Hugh Brown.

Brown was arrested on January 29, 1969, he iaabiiniog

' disorderly loitering on street” and “disorderly. conduct—

os resisting arrest withviolence.” (App. 3). ~

7 Shortly before midnight, Brown was observed leaving the.

Richmond Hotel, a small downtown hotel, by a Jacksonville

- police officer. The police testified that Brown was reported .

to be a thief, narcetics pusher, and generally opprobrious -

character. The officer, who was seated in a police cruiser

with another officer, called for Brown to come over to him. |

_He said that he was suspicious of Brown because of the .

general combination of Brown’ s reputation, the way Brown

was walking, the appearance of something resembling money

in Brown’s hand, and the high crime rate of the locale. He

called. Brown over fo search him and check him out generally,

intending at the time to arrest him ess he-had a'good

explanation for being on the street. Brown Tr. 7-20).

When Brown came over to the police car as commanded —

by the officer, the officer: began to search him, apparently |

preparatory tor placing him in the car. In the course of the

search; he came upon two small packets, later found: to

contain heroin. When the officer touched the pocket where

9 packets were, Brown oe to resist violently. (Brown.

r 7-20). NY

The arresting officer and his partner testified that they

. did not know how long Brown had been a resident of Jack-.

. sonville, did not know whether he had a family, did not —

. know whether he had any residence, and did not know

whether he had any employment. (Brown Tr. 22-29).

Brown was convicted on both charges, being sentenced -

to 30 days imprisonment on the vagrancy charges and 60

days on the resisting arrest cee App. ll

Ny “*

Wi :

STATEMENT OF PROCEDURES BELOW. |

The Municipal Court charge against petitioners was stated

only on the police department docket sheet made.up when. _

they were booked into the jail: (App. 3, 5, 6, 8, 10,.12,

_ 14, 16), Under Florida law, no indictment, information,

affidavit, or formal charging instrument is required in muni-

cipal courts. Wright v. North: 91 So. 87 (Fla. 1922); Trujillo —

‘v. State, 187. So.2d: 390 (3rd Dist. Fla. 1966). ERAN S,,

__ Use of the term “‘vagrancy” as the opening entry in the

charging portion of the docket sheet meant that petitioners

- were charged simply with “vagrancy” and stoad liable to

conviction under any part of the city ordinance or state

statute. ca ee neatiphper’

: The explanatory words appearing after “vagrancy” on.

each docket sheet did not qualify the general vagrancy

” Charge. They were added under a ‘police department prac-

_ tice of noting what: persons arrested for such offenses as

_Vagrancy and. disorderly conduct were doing or being when

arrested. The explanatory words were not intended to iso-

late some part of the ordinance or statute as the basis for —

the charge. For example, the four defendants in the Papa- — tedtee|

_ christou case were accused of “vagrancy—prowling by auto” ~~

on the docket sheet. (App. 10, 12, 14, 16) The words —

“prowling by auto” refer to no’ specific part of the ordi- -

_ Nance of statute and are technically surplusage. The defend- ;

ants were charged—and convicted—under the entiré ordinance .

. Or statute. eee ae Boi edie ad ale ae

‘Presumably the city authorities felt they were proceeding -

- ‘On their own ordinance rather than the state statute. The .

__ parties proceeded on that assumption in the appellate stages

below. The state statute is treated in this brief only

-because-of its theoretical availability. In any event, the

ordinance and statute are almost identical. 8 5

__ The Municipal Court convictions were affirmed by the

Circuit Court for the Fourth Judicial Circuit of Florida.

(App. 19). Petitioners then ‘applied to the District Cqmrt ; ;

of Appeal, First District of Florida, for a writ of certiorari

(App. 20, 23), which was denied. (App. 39, 42). -Both the

Circuit Court and District Court of Appeal felt that the con-

stitutionality of the Jacksonville ordinance was controlled

by the Florida Supreme Court’s decision in Johnson v. State;

216 So.2d 7 (Fh: 1968), upholding the state statute.

. *) SUMMARY OF ARGUMENT ia |

Several constitutional principles are violated by the instant

legislation. ot - -

~ IMPROPER EXERCISE OF POLICE POWER

“The legislation is an improper éxercise of police power —

which is not required in the public interest, is not necessary s

- for its purported purposes, and is unduly pear. on

“individuals. -

This legislation is ‘autdeed after ald ‘English idle. pro-

_hibitum socio-economic legislation tailored to the peculiar

needs of feudal and Elizabethan Englahd. It consequently

criminalizes people for things that are fotally non-criminal

>. by modern standards—i.e.,-nightwalking, loafing, and. living

\\on the earnings of their wives or children.. In this respect

it seriously jeopardizes the zone of privacy secured py 6 Gris-

wold v. Connecticut, 381 US. 479 (1965).

The status proscriptions of the legislation in effect create

ae presumptions of criminality based upon the supposed _prop-

ensity of certain persons to commit crimes. These presump-

tions are not sufficiently grounded in logic and rationality

- for criminal penalties to be based upon them. More griev-

ous, the proscriptions subject persons to unlimited, continu-

ing liability to punishment, unconditioned by the quality

or frequency of past acts, au punishment, or likelihood

2 of future. one

The wrong in the legislation is ‘ compouinded ~ the oaths

ability of far. less ome Means for achieving the same

Purpose. — ; ; : ‘

VOID FOR: VAGUENESS.

Lack of Notice

The legislation is incredibly vague and. ‘eevebdes no wih

of the conduct sought to be prohibited. It is far more vague -

_ than the anti-gang statute (a kind of modern vagrancy law)

struck down in Lanzetta v. New ss 306 U.S. 451 ( sts

| “Lack of Enforcement Standards . ,

_ A total lack of:. enforcement standards leaves iia’

' enforcement discretion in the hands of enforcing officers, :

- whether policemen, prosecutors, municipal judges, or juries.

{

lee

_ The dangers of this are magnified because the legislation i is

directed at the unpopular, nncneeoas and unestablished.

‘Leki tenme te

‘The vagueness of the legislation inhibits peopin | in the exer-

cise of sensitive, ere, —_—

A i

HE USE FOR ARREST AND DETENTION

_, ON SUSPICION ALONE

Ingrained in vagrancy is 4 tradition of use as a inlihade

’ for arrest and détention on suspicion alone. © The ° basic a:

premise of thé legislation is that’ some people are per se

suspicious, and the way the legislation i is used i is the natural. be

and logical result of that built-in premise. ae :

This history of use for “suspicion only” is abundantly be

documented and provable. : It so permeates the legislation

that it must be regarded as an integral - of ‘it which ren-.

ders it mere ee

p.\ Se ee salts ee,

. cao ADDITIONAL RIGHTS AND IMMUNITIES

e |

\ J. Vaaiaaey’ is objectionable on a number of, othe constitu:

_y tiorial grounds not presented as squarely here as those above.

: These additional objections are simply stated to demaniteate... .

- the ‘total inimicability. of vagrancy to current standards. The _

. “other ‘objections-are:. (1) denial of equal protection, (2)

: cruel and unusual punishment. or unjust punishment in vio-

-lation‘of due process, .(3) involuntary servitude,, (4) abridge-

ment of the-privilege against self incrimination, (5) infringe-

» ment-of the right of —_ and movement and (6) double

" jeopardy. ~ :

ARGUMENT - Piet a Te

A | ‘The Jacksonville and Florida vagrancy tews ate archaic. |

_ vestiges of long-past economic’ conditions and social philoso-

-. phies. Whatever justification’ vagrancy laws may once have

~ . . had, the ‘instant legislation i is =e under several constitu:

oN tional Principles.* :

“the instant legislation was s held t siactisolionite invalid by a three

judge panel in Lazarus v. Faircloth, 301 F. Supp. 266 (S.D. Fla. 1969).

Other decisions holding similar legislation unconstitutional are: Ricks

ek District of Columbia, 414 F.2d 1097 (D.C..Cir. 1968); Scott.v. Dis- °

ees trict-A ttorney, Jefferson Parish, 309 F. Supp. (E.D. La. 1970); Wheeler

‘- -¥,.Goodman, 298 F. Supp. 935\(W.D. N.C. 1969); Broughton v. Brewer,

298 F. Supp.' 260 (S.D. -Ala. Signy Galdman v. Knecht, 295 F.Supp.

897 (D. Colo. 1969); Smith ¥ Hill, 285 F. Supp. 556 (E.D. N.C.

~’. 1968); Landry ». Daley, 280 F. “Supp. 968 (N.D. Ill. 1968); Baker v.

_ Bindner, 274 F. Supp. 658 (W.D. Ky: 1967); United States v. Marge-.

‘son, 259. F. Supp. 256 (E.D. Pa. 1966); Balizer v. Shaver, 481 P.2d .

700 (N.M. Ct: App. 1971); State v.-Grahovic, 480 P.2d 148 (Hawaii

,_ 1971); Amold v. City and County of Denver, 464°P.24.5}5 (Colo.

» 1970); City of Reno v. Second Judicial District Court, 427 P.2a.4

\ (Nev. 1967); Alegaia v. Commonwealth, 231 N.E.2d 201 (Mass. 1967);

~. Fenster v. Leary, 229.N.E.2d 426 (N.Y.. 1967). See also United.

\ States v. Kilgen, 431.F.2d 627 (Sth Cir.. 1970); Jones v. Peyton; 411.

F.2d 857 (4th Cir. 1969); Tewtery of Hawaii v. Andula, 48°F .24 |

_AT1 (9th Cir. 1931). *

Numerous commentators have also concluded Stang teas gas

lation is — a — are: — Federal cae

, _ IMPROPER EXERCISE OF POLICE POWER :

; The most grievous fault of the instant legislation is that

it imposes criminal penalties upon status and conduct which

are not criminal and have no rational relationship to crim-

_ inality. The legislation, therefore, exceeds the state’s police

a “The term ‘police power’ denotes the ‘time-tested con-

| ceptional limit of public encroachment upon private inter: --

ests.” Goldblatt v. Town of Hempstead, 369 U.S. 590, 594

(1962). An exercise of police power must,bé reasonable.

| This Court ruled in’ Goldblatt: °

“The classic. statement of the rule.in Lawton v. Steele,

152 U.S. 133 (1894) is still valid today: *To justify

the State ... . in interposing its authority in\ behalf

of the public, it must appear, first, that the interest —

of the public . . . requires such interference; and

_ second, that.the means are reasonably necessary for

the accomplishment of the purpose, and not unduly

oppressive upon individuals.’” 369 U.S. at 594.

The. first evidence of the instant iegislation’s current in-

appropriateness is its derivation. Both the Jacksonville ordi- as

‘nance and Florida statute are products of the peculiar social

‘ needs of feudal and Elizabethan England. . : 24

. Constitutional Restrictions on the Punishment of Crimes of Status, $3

Crimes of General Obnoxiousness, Crimes of Displeasing Police Offi.

"cers, and the Like, 3 Crim: L. Bull. 205 (1967); Note, The Vagrancy’

Concept Reconsidered: ' Problems and Abuses of Status Criminality,

+37 N.Y.U, L. Rev. 102 (1962). Others are: McClure, Vagrants, Crim-

inals and the Constitution, 40 Denvér L. Center J. 314 (1963); Doug-

__ las, Vagrancy and Arrest oni Suspicion, 70 Yale L.J. 1 (1960); Sherry,

Vagrants, Rogues and Vagabonds—Old Concepts in Need of Revision,

48 Calif. L. Rev. 557 (1960); Foote, Vagrancy-type Law.and Its Ad-

ministration, 104 U. Pa. L. Rev. 603: (1956); Lacey, Vagrancy and

+ Other Crimes of Personal Condition, 66 Hary. L. Rev. 1203 (1953);

Note, Vagrancy—A Study in Constitutional Obsolescence, 22 U. Fla.

. L. Rev. 384 (1970); Note, Constitutional Attacks on. Vagrancy Laws,

“4 Harv. Civ. Lib.Civ. Rights L. Rev. 141 (1966).

_ 20 Stanford L. Rev. 782:(1968); Note, Vagrancy and Related Offenses,

. 16

‘In feudal’ England, the serf was bound to his manor, with - -

no right of migration. 5 With the breakdown: of feudalism

and the. disintegration of the social forces which had held

the working populace to a specific locale, the former serfs

_ .began to dajft to other places and into other ways of life: -

_ The resultant labor shortages and. economic pressures were

- intensified by the Black. Plague. The. governing forces

responded immediately with the Statutes of Labourers,

designed to guarantee laborers: in each part of the ‘country

and to prevent any rise in wages or the price of. goods by

_ fixing maximum limits on wages and prohibiting . the move-

_ ment of workers from their area a of residence for a better

livelihood.© Tid

Additional. lesielition ‘followed shortly, inoling. more

-broadly with: (1) restriction of the able bodied. to their

oWn parish and the regulation of their labor, (2) provision |

for ‘and stabilization of local systems for the relief of impot-..

ent poor unable to work, and (3) punishment for the able

‘bodied who would not work.’ Hlustrative is an act passed —

- -in 1414 (2 Hen. V, c. 4) providing that runaway servants

‘ and laborers who fled “to the great damage of gentlemen

and others to whom they should serve” could be given sum-

mary hearings and be gent back to their original homes.

Beginning in the. middle 16th Century, vagrancy legisla- /

tion took .on another dimension. The combination of

increases in population and the withering away of old insti-

_ tutions created a large class of unemployed drifters. Black-.

pss sniaiased

SCoulton, Medieval Panoreme (The Noon Day Press, New York,

1955), p. 76. ,

$23 Edw. Ill, c. 1 (1349) 25 Edw. Ill, c. 1 (1350). See in addi- .

tion 25 Edw. I, c. 7 (1350). See Ill Stephen, Hist y of the Crim-

__ inal Law of E pp. 267, 274 (MacMillan and Co., London, 1883);

< Coulton, Medieval Panorama, p. 82 (Noon Day Press, New York, 1955);

Turner (Editor), Kenney’s Outlines of the Criminal Law, p. 28 (Cam-.

bridge University Press, 18th Edition 1962). .

_11-Rich: Il, c. 6°(1377); 2 Rich. II, c. 6'(1378); 7 Rich. I, c. 5

- (1383); 12 Rich. II, c. 3 (1388). See Ledwith v. Roberts, 1 K.B. 232,

271-274 oe Il oe “— pp. 268-272; Coulton, supra, p. 82.-

qoetetss .

ry ,

fe.

vide the means for suppressing them.® The premise for ae

stone described these cooeas as “such as wake on the hight

and sleep on the day, and: haunt customable taverns and ale

houses, and routs abouts, and no man wot from whence

they came and whither they go,”. IV Blackstone, Commen- - .

taries, Chap. XIII *169. This evolution was summarized in” *

Ledwith v. Roberts, 1 K.B. 232, 271 (1937): Ree

“The: early Vagraicy Acts came ‘into. being under

peculiar: conditions utgerly different from those of

‘the present time. F the time of the Black Death

in the middle of the 14th Century till the middle of

the 17th Century, and indeed, although in diminish- - -

ing degree, right down to the reform of the Poor, ,¢

Law in the first half of the 19th Century, theroads ~

of England were crowded with masterless menand ~-

their families, who had lost their former employment

- through a variety of causes, had no means of liveli- :

hood and had taken a vagrant life. - The main. causes

- were the gradual decay of the feudal system under’ ~

which the labouring classes had been anchored to the

. soil, the economic slackening of the legal compulsion

to work for fixed wagés, the breakup of the monas-

teries in the reign of Henry VJII; and the consequent .

_ disappearance of the religious orders which had pre-

viously administered a kind of ‘public assistance’ in

the form of lodgings, food, and alms, and lastly, the

economic changes brought about by the Enclosure’

Acts. Some of these people were honest labourers:

who had fallen upon evil days, others were the

“wild rogues’ so common in Elizabethan times and. :

literature, who had been born to a life of idleness

and had no intention of following any other. It

was they and their conferderates who.formed them-

~ selves into the notorious ‘brotherhood. of beggars’

which flourished in the 16th and.17th Centuries.”

The result was a 16th, Century series of acts designed to .

reach all categories of “fogues and vagabonds” and to -pro-

*See, e.g., 19 Hen. VII, c. 12 (1503); 22 Hen. VIII, c. 12 (1530): -

_ 27 Hen. Vill, c. 25 (1535); 1 Ed. VI, c. 3 (1547), Extremely harsh

" ri

ae nies cannes

as ee es 2 oS 08

these was stated in the preamble of the Slavery Act of 1547:

_. “Idlesnes and Vagabundrye is-the mother and roote

_ of all theftes robberyes and all evill actes and other .

mischiefs ...” 1 Ed. VI, c. 3 (1547) |

The- culmination of. this broadening -of the legislation to

_* meet 16th Century exigencies, was the Statute of Elizabeth .

~ in 1597. 39 Eliz. Ic: 4 (1597).

This history is significant because the Jacksonville’ and

Florida vagrancy legislation is sttikingly similar to the Statute

_of Elizabeth. One author has pointed out that the Florida

statute “seems to have been selected at random from the

provisions of the Statute of Elizabeth-as it was enacted in

1597.” Sherry, “ Vagrants, Rogues and Vagabonds—Old

_ Concepts in Need of Revision,” 48 Calif: L. Rev. 557, 560

(1960). This in effect means that the Jacksonville and =

_ Florida laws are copied from malum prohibitum legislation os

tailored for the socio-economic needs of the 16th Century.

While not conclusive, this feudal and Elizabethan derivation ~

creates a virtual a perenne of unsuitability to. mid-20th |

: — conditions.

Measured ‘by current standards, the interference ae

by many portions of the instant legislation is manifestly not —

requifed in the interest of ‘the public, is not reasonably

necessary for the accomplishment of the’ purpose, -and is

unduly oppressive upon individuals. Widely approved pur-

suits—indulged by most, if not all—run afoul of the prohi- .

_bitions against "night walkers,” “habitual loafers,” or. ““wan-

dering or strolling . . . from place to place ...”’. Prosecution

of “persons neglecting all lawful business and habitually .

spending their time by monte oe places where alco-

penalties were iain The ears of certain offenders could be notched

or cut off, and multiple offenders could ultimately. be branded. or

executed. Under the Slavery Act of 1547 (1 Ed. VI, c. 3) all loiter-

ing and idle wanderers who would not work would be taken, for vaga-

bonds and thereafter be branded, be made slaves, be forced to wear a

a eat Piel ete abe Techs. wad be coempind Oo WERE:

by beating, ss or ptherwise.

holic beverages are sold or served” would no doubt greatly -

jeopardize 'the 1 membership of most country clubs. Having

regard for the distribution-of wealth in today’s econonty, it

would greatly surprise many citizens who consider themselves

lawabiding to learn that being supported by their wives or

children is a criminal offense; Totally mind-boggling is the

notion that people who are without “reasonably ‘continuous

employment or regular income and who have not sufficient |

properties to sustain them and misspend what they earn...”

are criminals. The criminalization of these people, and count-

less others who could be similarly* included, seriously __

threatens the zone of privacy sought to be preserved by this

Court’s decision in Griswold v, Connecticut, 381 U.S. 479 ie

(1965). If, in some way, the public interest is served by =

_ Such interference, criminal punishment is unduly oppressive °

- and not reasonably necessary asa corrective. = =

, Other portions of the instant legislation fall in a differ-

ent category. The State clearly has a valid right to inter.

fere with gamblers, thieves, pilferers, pickpockets, traders | i

in stolen property, and even beggars, drunkards, railers, and oe

brawlers. Certainly it would be within the State’s province

_to punish specific instances of these activities. But regula-

tion of these activities by blanket status Pproscriptions is not _

a valid exercise of police: power. Shane Hes ani

* Even in these areas of legitimate interest, vagrancy is no

more than a conclusive presumption of. criminality based on

a supposed propensity for crime. By analogy to the liné of

_ Gases represented by. Leary v. United States, 396 U.S. 6

(1969), the instant legislation should be struck down unless

Jacksonville and Florida. can. demonstrafe a-rational basis

for it. The published analyses tend to negate. a rational

realtions.. See Note, Vagrancy Concepts Reconsidered:

Problems and Abuses of Status Criminality, 37 ‘N.Y.U. L.

Rev. 102, 116, 125 (1962); Foote, Vagrancy—Type, Law

and Its Administration, 104 U. Pa. L. Rev. 603 (1956).

_ A more fundamental objection is the completeness of the

-legislation’s-coverage, both in breadth and duration, and the |

: ; we 3 Get

harshness that results. An individual can, for example, _

become a “‘thief,” for purposes of the: legislation, by. proof

of conviction of some kind of theft. ‘Rodriguez v. Culbreath,

69 So.2d 58 (Fla. 1953) (a gambling case). By operation of

the instant laws, he ther becomes permanently subject to

incarceration, since vagrancy is a continuing offense.” .It

makeé no differente that his theft—or. two or three’ thefts,

for that matter—may. have been minor and that he may -

have been punished under the laws dealing specifically with

acts of theft.’ Stated another way, the vagrancy laws would

subject him to punishment because of-a continuing status

confeired by past, noncontinuing—perhaps repented—acts. .

’ This is possible because the instant laws flatly proscribe _

status, unqualified by limitations based on such factors as _

__ frequency or quality of past acts, past punishment, or the .

~ likelihood of’ future violations. | .-

The unreasonableness of the instant laws is compounded

' by the availability of other means for accomplishing crime

‘control. : Florida and its municipalities are amply armed.

-with laws against specific acts of thievery, gambling, etc.

_ A new Comprehensive Alcoholism Prevention, Gontrol and

Treatment Act is available for. alcoholism: Chapter 71-132,

.1971 Regular Session, Florida Legislature... Law enforce-

ment officers have, in addition to this Court’s decision in

_ Terry v. Ohio, 292:U.S. 1 (1968), a stop-and-frisk law for’ -

temporary street detentions. §901.151 Florida Statutes

(1969). There i is also a multiple offenders act, although con-

siderably more ” circumscribed than the vagrancy laws.

$775.084 Florida Statutes (1971). The availability: of these.

- alternate methods. is relevant under this Court’s ruling in ~

Shelton v. Tucker, FES U. .S. 479, 488° (1960) that:

. even though the governmental purpose be legi-

"timate and substantial, that purpose cannot be pur-

sued by means that. broadly stifle fundamental per-

sonal liberties wheri the end can be more narrowly

achieved. The breadth of degislative abridgement.

' must_be viewed .in the light of less drastic means for

: Netiotng the same basic purpose.”

Bh» *

Whatever small, otherwise unavailable, benefit is attained

by the vagrancy. laws is offset by their harmful effects. As —

stated by the Fask Force on Administration of Justice of

the President’s Commission on Law Enforcement and. -

Administration of Justicé: ts - : : :

“The high price paid for extendirig to the police wide

and largely uncontrollable power. of traditional dis-

orderly conduct and vagrancy laws should be recog-

nized.” ? an TRA s : ee. 5

- One of the first actions taken by a newly formed Jackson- ¢

ville Community Relations Commission, created to alleviate

urban tensions, was to seek a discontinuance by local police

of use ofsthe vagrancy laws.!° ai fous

€

' : ¢ : o-oo =

@ a pe ae ° 4 é ¢

VOID FOR VAGUENESS.

“The first essential of due process of law” is violated’ by

“a statute ‘which either forbids or requires. the. doing of an ,

act in terms so vague that men of common intelligence must

necessarily guess at its meaning and: differ as to its applica-.

tion.” Connally v. General Conbtr Co., 269 U.S. 385, 391

* (1926). : Ne os PRS sie aot

Reasonable definiteness is needed -to satisfy three funda- 3

~ mentally important social concerns: (1) to provide fair

notice to affected persons, (2) to provide ascertainable and -

delimited standards of enforcement for the prevention of - —

: arbitrary, discriminatory, standardless ‘use, and (3) to secure ,

a “breathing space” for constitutiénal liberties, especially —

_ the preferred guarantees of the Bill of Rights.'' These _

policies apply to the instant legislation as follows: ae

> Courts, Report of the Task Force on Administration of Jus. . Se

tice, the President’s Commission on Law Enforcement and Adminis: -

tration of Justice, p. 104 (U.S. Government Printing Office 1967).

Minutes of Special Meeting, Community Relations Commission

of the City of Jacksonville, April 23, 1969,

___ "This breakdown of the policies embodied in the void-for-vague-

ness rule follows the analysis of Professor Anthony Amsterdam in:

Federal Constitutional Restrictions on the Punishment of Crimes of Pa

| oe

. hi.

iy, Lack of Notice.

A criminal. statute must give reasonable notice of the

conduct sought to be prohibited. This Court said in United

“The constitutional requirement of definiteness is vio- .

? _ lated by a criminal statute that fails to give a person —

of ordinary intelligence fair notice that his contem-

: plated conduct is forbidden by the statute. The

underlying principle is that no man shall be held

criminally responsible for conduct which he could

‘not reasonably understand to be proscribed. al

See also, Palmer v. Euclid, _- U.S. ~ (No. 143 decided

May 24, 1971); Bouie v. Columbia, 378 U.S. 347 (1964);

and: Wright v. Georgia, 373 U.S. 284. (1963).

_ That the instant legislation fails to give reasonable notice

to affected persons is too obvious to require extended

_ analysis or argument. Such terms gs «‘dissolute,” “lewd, ".

-“wanton and lascivious,” “disorderty,” “habitually,” “‘fre-

quenting,” and “misspend” defy definiteness. “Equally diffi-

. cult to pin down are the terms “‘rogues,” “common railers

and brawlers,” “persons wandering or strolling around from

place to place without any lawful purpose or object,”

“habitu@ loafers,” “disorderly persons,” and “persons |

neglecting all lawful business.”” Even such apparently recog:

nizable categories as “vagabonds,” “common drunkards,”

: “thieves, pilferers or pickpockets,” ‘*common gamblers,”

- and “traders in stolen property” are under closer caieay

incapable of’ ascertainment in the absence of any definition 2

or ———.: SP ’

4. 5

Status, Crimes of Genefal Ghcniiauaniil Crimes of Displeasing Police

- Officers and the Like, 3:Crim. L. Bull. 205 (1967). Professor Amster-

dam. there uses vagrancy for demonstration of a general approach

‘developed more fully in. Note, The Void-for-Vagueness Doctrine in the

.. Supreme Court, 109 U. Pa. L. Rev. 67 (1960), which was noted with

approval by this Court in N.A.A.C.P. v. Button, 371 U.S. 415, aad

(1963). :

The lack of notice in vagrancy legislation was expressly

cited by Mr. Justice Frankfurter in Winters v. New York, .

3g$ U.S. 507, 540 (1948) (dissenting opinion): _

“These statutes are in a class by themselves in view oy

of the familiar abuses to which they are put. See

Note, 47 Col. L., Rev. 613, 625. Definiteness is

designedly avoided so as to allow-the net to be cast

at large, to enable men to be caught who are vaguely .

- undesirable in the eyes of the police and prosecu-

tion, although not chargeable with any particular we ot

Offense. In short, these “vagrancy statutes’ and laws:

against ‘gangs’ are not fenced in bythe text of the

statutes or by the subject. mattér so as to-give notice

. Of conduct to be avoided.” - , -

In Lanzetta v. New Jersey, 306 U.S. 451 (1935f° a New

Jersey “anti-gang” statute, a kind of modern vagrancy

" Statute, was struck down for failure to give affected persons |

adequate notice of any ascertainable standard of conduct. -

The vagueness of the instant legislation, of course, far

exceeds that in Lanzetta. ~ Be AR ge Ne

_ While a facially vague. statute may sometimes be saved by

. confinement to a narrow subject matter which imparts.

> Specificity and provides a point of reference (see e.g., United -

States v. National Dairy Prods. Co., 372 U.S.'29 (1963)), or

__. by a strong scienter requirement, which prevents inadvertent

_ transgression (see e.g., Screws v. United States, 325 U.S. 9ig

_ (1945)), there is no such saving factor here. On the con- .

trary, the social setting of the Iesialation makes interpreta-

Lack of Enforcement Standards |

The instant legislation is as devoid of enforcement stand-. __

ards ‘as of notice.. Absolute discretion is vested in the -

enforcing officers, whether policeman, prosecutor, munici-

__ pal judge, or jury. The right of the enforcing officers es

set their own standards and pick their own targets is implied .

in the législation, since _Stringent enforcement against all

id ae «= 2G

& :

who might come within its ambit would lead eventually to

. the. arrest of everyone.. An express selective enforcement.

* gloss was put on the Florida statute by the Florida Supreme

Court in Headley v.. Selkowitz, 171 So.2d 368 (Fla. 1968).

The danger of oppression and harassment in standardiess

legislation i is especially acute when, as. here, the legislation

is directed at the unpopular, unconventiogal, and unestab-

lished. A typigpl example of the inevit#le abuse is the .

Papachristou situation here, where the four defendants'were —

_ obviously afrested and-convicted for violating local racial

taboos. Another example in the récent records of this

- Court is. Adickes v. Kress. & Co., 398 U.S. 144 (1970),

which resulted from the vagrancy arrest vid a civil sit-

‘in demonstrator.

Dealing i in Shuttlesworth v, ys of. hyniaahion: 382 U.S.

87, 90-91 (1965) with legislation vesting comparable. discre-

- tion in enforcing officers, this Court said:

“The constitutional vice of so broad a provision needs

no demonstration. It ‘does not provide for’ govern-

ment by ‘clearly defined laws, but rather for govern-

ment by the moment-to-moment opinions of a police- —

man on his beat.’ Cox ». State of Louisiana, 379°

U.S. 536, 559, 579 (Separate opinion of Mr. Justice

Black).””

: This Court has also held eidtrininable decsdnsits to be ~

- equally important at the courtroom stage. Giaccio A Penn-

sylvania, 83 U. S. 399 (1966). - -

In other contexts, this. Court: has noted that the standard- — |

less law “‘licenses the jury, to. create its own standard in each

case.” Herndon v. Lowry, 301 U.S. 242, 263 (1937); fur-

_. Mishes a gonvenient | tool for “harsh and. discriminatory

enforcement by prosecuting officials, against particular ?

groups designed to merit their displeasure,” Thornhill v.

_. Alabama, 388 U.S. 88, 97-98 (1940); and is “susceptible of |

sweeping and improper application,” and “lends itself to

' selective-enforcement against unpopular causes,” N.A.A. CP. -

v. Button, 371 US. 415, ce | 435. eek:

Of particular note is the position taken by the-Task Force.

_ On the. Administration of Justice of the Presiderit’s C ts

sion on Law Enforcement’and Administration of Justi,

-In commenting on the “wide and largely uncontrollable \ ;

"_ . power extended to the police by the disorderly conduct ha

“ .. and vagrancy laws,” thé Task Force stated: fee ce

.' “Foremost among its disadvantages is that it consti-

_ tutes an abandonment of the basic principle upon.

which ‘the whole system of -Cfiminal justice in 4 -

, democratic community rests, close control over

exercise of the authority delegated to officials to

employ force and coercion. This control is to be -

found in carefully defined laws and in judicial and -

administrative accountability. The looseness of the

laws constitutes a charter of authority on the street

whenever the police deem it desirable. The practi- -.

calosts of this departure from principle are signi-

ficant.. One of its consequences is to communicate.

to the people who tend to be the object of these

ized, authoritative procedure, but largely a matter _

of arbitrary. behavior by the authorities. y The appli- _

_ Cation of these laws often tends to discrimi ate |

against the poor and subcultural groups in the popu-

- lation. It is unjust to structure law rcement in o

such a'-way that poverty itself beco a crime. —

And it is costly for society when the law arouses

the feelings associated with these laws in the ghetto, —

a sense of persecution and helplessness before offi-

_Cial power and hostility to pofice and other authority

' that may tend to generate the very conditions of.

“criminality society is seeking to exti#pate.”

The Courts, Report of the T,

Administration of Justice, the Presidint’s Commis

> sion on Law Enforcement and Administration of eee

Justice, “pp. 103-104 ‘(U:S. Government Printing ; oN

Ue SS eee

26°

Restriction of “Breathing Space”

a" third consequence. of the. vagueness in the insta nt legis-

ation is its tendency to inhibit people in the exercise of

constitutionally protected liberties-- While this consequence

is in many respects g combination of the lack-of-notice ‘and

lack-of-enforcement-standards problems, it is also a serious

-. — problem deserving of independent: recognition) This Court

has held in dealing with rights of cgnstitutio al dignity,

' especially the high priority, preferred Tights, that “govern-

ment may regulate only with narrow specificity,” in order:

to leave a “‘breathing space to survive.” N.A.A.C.P. v.

Button, 371 U.S. 415, 432- 433 (1963); Dombrowski v.

'. Pfister, 380 U. S. 479 (1965).

As will be treated later in this brief; thé instant legislation

against self-incrimination, the right: against unreasonable

search and seizure, the right to, travel, the right against cruel

_ and unusual punishment, the right to equal protection of ~

: the law, and such due process rights as to be arrested only -

upon probable cause..

Be t FOR ARREST AND DETENTION

‘ " QN SUSPICION ALONE

Ingrained in vagrancy is a tradition oF use as a a inakeweight

when law enforcement officers want to arrest someone but

can think of no legitimate grounds. This tradition is so

* pervasive and universally accepted that it has become a vir

tual substantive engraftment on the vagrancy concept.

. Documentation of this tradition is abundant. Immediately

illustrative is the attitude of the Assistant City Attorney

who represented the City of Jacksonvillé at the Municipal

‘Court trial in the Papachristou case. Resisting a motion to.

strike’post-arrest statements by the defendants and. to dismiss

the ane for: lack of evidence, he said:

te.

“Well, talking out. vagrants—we'r re not taticlinn aon

the commission of a crime. A vagrancy statute is-

more of a preventative measure . . (Papachristou

Tr. 39). .

- Making. it plaige that the above iiictaied was not the faites

misimpression of a young assistant is the following - com-

ment by the State Attorney for the Fourth Judicial Circuit

- of Florida, which ‘includes Jacksonville, during a 1969 tele-

vised panel ‘discussion on vagrancy with other. law enforce-

ment spokesmen and community representatives:

“The vagrancy law ‘in Florida is a very broad law that

is really a law enforcement tool primarily for temp-

orary detention of suspects. .I think [that] is its.

primary objective. os |

. 8% @<« ~ . * a 3

“Y would like to point out that this gentleman over

here mentioned that perhaps it should have another

name. Perhaps it. should have a temporary detention

-of suspicious persons name or something of that

; sort. ” 2 ; ae

Highly auithoritative conflewiiation of this tradition is pro-

vided by the President’s Commission on Law Enforcement

and Administration of Justice: The Commission Task Force

on the ‘Administration of Justice reported. with regard to

vagrancy laws that: ; 2.

“Their current and widessewad use as documented in -

_ ,a number of recent studies, is to afford police justi-

“fication which otherwise would not be present under

prevailing constitutional and statutory limitations,

to arrest,. a goarcty question. and detain persons because

of suspicions that they have committed or may

commit a crime. They are also used by the police |

to clean the streets of undesirables, to harass persons

believed to be engaged in crime, ae to investigate .

uncleared offenses, °

12Panel discussion on “Feedback,”* WJCT- TV, Jacksonville, Florida,

‘ March 7, 1969.

(28

_. The Courts, Report e Task Force on -Ad-

-ministration of Justice; t¥e President’s Commission

“on Law Enforcement and Administration of Justice,

?p. 103 (U, S. -Government Printing Office, 1967).

‘The Task Force ‘on Police’ echoed these findings. . The

Police, Report of.the Task Force on the Police, ‘The Presi-

dent’s.Commission on Law Enforcement and Administration

of-Justice, pp. 187- 188 (U.S. Government — Office,

1967).

The same thing was found by the American Bar Founda-

tion during its Survey of the Administration of Criminal: |

Justice iri the United States. See LaFave, Arrest: The Deci-

sion to Take a Suspect into Custody, pp. 87-89, 354-360

- (Phe Administration of Criminal Justice Séries, American

Bar Foundation, 1965). Professor LaFave also tells of the ~

“ten day vag. check” by which law enforcement officers _

_ obtain the detention of persons for ten days” investigation.

In the Jacksonville area, suspicious transients aré sometimes-

- sentenced to ten. days for vagrancy so that they can be held

while an: F.B.I. fingerprint check is run to see if they are

fugitives from any jurisdiction.'> See also, Douglas, Vag-

rancy and Arrest on | Suspicion, 70 Yale L.J. 1 (1960); Foote,

. yt Vagrancy-type Law and Its Administration, 104 U. Pa. L. Rev.

- 603 ( 1956); Note, The Vagrancy Concept Reconsidered:

Problems and Abuses of Status Criminality, 37 N.Y. U. L.

Rev. 102 (1962); Note, Use of Vagrancy- type Laws for

Arrest and Detention of Suspicious Persons, 39 Yale L.J.

1351 (1950).

A good example of use of vagrancy y solely as an-investi-

_gative tool was recently before this Coyrt in WainwAight v.

City of New Orleans, 392.U.S. 598 (1968). A classic exam-

‘ ple is provided here by the Hugh Brown case.'4 —

% 3This | statement is based on conversations with municipal judges.

Tronically, because of the State’s reliance ‘on vagrancy to support

the arrest and heroin-disclosing search of Brown, with attendant prob-

able clause requirements, the’ heroin was suppressed at Brown’s subse-

‘quent Criminal Court of Record narcouc prosecution. If the State

_ This background shows that t thefnstant ‘legislation is

shaped and molded by a purpose and history that colors its -

_ language ayid “puts . . . words in [it] as definitively as if.it

had been so amended by the Legislature. ” Winters v. New —

York, 333 U.S. 507, 514 (1948). The basic premise under- fio

lying the legislation is that the people to whom it will be

applied are per se suspicious, and’ the way, the legislation is

used is the natural result of that premise.

Arrest and/detention on suspicion alone are clearly uncon-

. Stitutional. Morales v. New York, 396 U.S. 102 (1969);

Davis y. Mississippi, 394 U.S. 721 (1969). Conviction on.

suspicion alone is unthinkable. In re Winship, 397 U.S. 358

(1970).’ The “suspicion only” character of this: legislation’ .

accordingly renders. it facially unconstitutional.

ADDITIONAL RIGHTS AND IMMUNITIES

~ Constitutional objections in addition to those Sievigusly \

urged in this brief could be raised against the instant legis-

lation. Although meritorious, these objections apply with

less force to the parties hereeand will, therefore, be simply

, stated without elaboration. They ‘are meritioned largely

because md number and variety point up the general inimi- |

cability o vagrancy to current. principles of social regulation.

‘Denial of Equal Protection

Many classifications of the instant legislation are arbitrary

and discriminatory without any constitutionally redeeming

purpose. They accordingly deny equal protection under

the law. See e.g., Rinaldi v. Yeager,-384 U.S. 305 (1966). -

Especially invidious is the discrimination against poor and/or

unemployed persons both expec and implicit in the legis-

ry . >

had stienpied to pursue and develop a stop-and-frisk theory, it might

have obtained a deserved conviction. State vy. Brown, 69-449, Crim-

inal Court of Record for Duval County, Florida.

lation. This Court said in 1941. that “the theory of the

- Elizabethan’ poor laws no longer fits, the facts.” Edwards *

-y, California, 314 U:S. 164, 174 (1941), More recently this

_ Court said, “Lines drawn on the basis of «wealth or propefty,

dike'those of‘race . . . are traditionally disfavored.” Harper

y. Virginia State Board of Elections, 383 U.S. 663, 668

_ (1966). The legislation also invites and promotes abridge- —

ment-of equal protection by its lack of enforcement stand- -

ards. ie ts .

Cruel and Unusual Punishment or Unjust

; Punishment in Violation of Due Process .

To the extent that the legislation makes punishable an -_

involuntary condition or status of life (ie., poverty or alco-

holism) and. imposes criminal penalties on status involving.

no criminality or criminal acts, it provides for cruel. and

unusual punishment and punishment in violation of due’

process of law. See Robinson v. Galifornia, 370 U.S. 660

* (1962). 7 |. |

Involuntary Servitude ..

—

A cogent argument can be made that a law requiring

people to either go to work or go to jail violates the invol-

untary servitude provisions of the Thirteenth Amendment.

See Note, Vagrancy and Related Offenses, 4 Harv. Civ. Lib.-

Civ. Rights L. Rev. 291 (1960). a ee

Privilege Against Self Incrimination~ —

The self-incrimination problems in the instant legislation

result priricipally from the prohibition against ‘wandering

or strolling around from place to place without any lawful

purpose or object.” This provision in effect requires a

suspected person to give an account of himself. Other pro- -—

visions of the legislation tend subtly to cogapel an account.

See Malloy v. Hogan, 378 U.S: | (1964).

}

RighT Of Travel and Movement ool

The prohibitions against vagabonds, night walkers, and

wanderers. infringe upon the right of travel and movement

secured by the Commerce Clause and due process of law.

As said in Aptheker v. Secretary of State, 378 U.S. 500, .«

505-506 (1964), “the right to’travel is a part of the ‘liberty’.

.Of which a citizen cannot be deprived without due process .

of law .. .”. See also United States v. Guest, 383 U.S. 745

(1966); ear v. Dulles, 357 U.S. 116 (1958); and Edwards

__-y, California, 314 U.S. 160 (1941). ;

—

Double Jeopardy

Penalizing a person for an offense and then penalizing

him again for the status resulting from his prior conviction

‘subjects him twice to punishment for the same act or

Omission.

; CONCLUSION |

The instant tiegalation and comparable legislation i in other °

states is flagrantly violative of the Constitution. Any socially

valid purpose the concept ever had has expired, and vagrancy

. has\become wholly ‘an instrument.of abuse. The abuse,

_ +. - moreover, is widespread. According to fhe F.B.1.’s Uniform

; Crime Report. for 1969,'* 106,269 vagrancy arrests were

~ reported by ageneies covering only approximately 144,000,-

_— 006 of the total American populatiori. | a

Only an order by this Court striking down’ the legislation

in its entirety can overcome Florida’s persistent defense and

use of its vagrancy laws.. Smith v. State, 239 So.2d.250

(Fla. 1970) (Certiorari granted by this Court June 14, 1971); -

Johnson v. State, 202 So.2d 852 (Fla, 1967) and 246 So. 2d

- (Fla. 1968). .

'SCrime in the United States, Uniform Crime Reports- 1969, Fed-

- eral Bureau of Investigation, Table 23. Page 109 (U.S. Government

comtest Office poe . , :

° -

Petitioners accordingly ask this Court to declare the

Jacksonville Vagrancy Ordinance and Florida Vagrancy

Statute. unconstitutional and to vacate and set aside their

_ convictions and sentences.

, Respectfully. submitted,

| ‘Samuel S. Jacobson

_ SAMUEL S. JACOBSON

DATZ, JACOBSON & DUSEK_

320 Southeast First Bank Bldg.

Jacksonville, Florida “32202:

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.