# Reply Brief for the Petitioner — Papachristou v. Jacksonville > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0329%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief for the Petitioner - **Published:** January 1, 1972 - **Citation:** 405 U.S. 156 ## Text SUPREME COURT, Us. LIBRARY | SUP? UBT Ls Supreme Court, U.S. FILED ..|- 9 ‘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) . ( 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 * , . “ ‘ , * $ 7 _ > 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 5 : 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? Fk 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. | ; — 3 _ 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 4. 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. . 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 . 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 13 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 15 , _ 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); 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. i, iy, Lack of Notice. A criminal. statute must give reasonable notice of the conduct sought to be prohibited. This Court said in United © States v.. Harriss, 347 U.S. 612, 617 (1954): “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). : > ee 23 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- tion of it more difficult. ©. |: , | i 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: a 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 laws the idea that law enforcement is not a regular- © 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 a. 26° Restriction of “Breathing Space” > Fe 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 _in various ways threatens the right of expressionmthe right’ © 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. 27 “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% @ 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 \ > 29 _ 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 . > SS 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. 30 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). } 31 md 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. an , Respectfully. submitted, | ‘Samuel S. Jacobson _ SAMUEL S. JACOBSON DATZ, JACOBSON & DUSEK_ 320 Southeast First Bank Bldg. Jacksonville, Florida “32202: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0329%3A2. Public record. Not legal advice.