In re E.D.
957 N.E.2d 80
Ohio Ct. App.2011Background
- E.D. was arrested for loitering for drug-related activity under Akron Codified Ordinance 138.26 on two dates in 2010.
- The prior version of 138.26, as in Rowland, was held unconstitutional for vagueness and overbreadth.
- Akron revised 138.26 to add a specific intent element, restrict to enumerated circumstances, and require three of ten circumstances for arrest.
- The trial court dismissed charges and found the revised ordinance void for vagueness and overbreadth.
- The State appealed, arguing the revisions cured constitutional defects; the court reviews de novo.
- The Court ultimately held the revised ordinance still unconstitutionally vague and overbroad, rendering the statute invalid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Akron 138.26 as revised void for vagueness or overbreadth? | E.D./State contends revisions cure vagueness and overbreadth. | E.D. contends revisions fail to provide clear guidance and remain subject to arbitrary enforcement. | Revised ordinance is impermissibly vague and overbroad. |
Key Cases Cited
- Rowland v. Akron, 67 Ohio St.3d 374 (Ohio Supreme Court, 1993) (void for vagueness; lack of reasonable notice and unfettered enforcement discretion)
- Norwood v. Horney, 110 Ohio St.3d 353 (Ohio Supreme Court, 2006) (vagueness; fair notice and definitional sufficiency)
- Burnett v. City of Cincinnati, 93 Ohio St.3d 419 (Ohio Supreme Court, 2001) (freedom of association/travel; drug-exclusion zoning context)
- Gill v. State, 63 Ohio St.3d 53 (Ohio Supreme Court, 1992) (presumption of constitutionality; standard for facial challenges)
- Cook v. State, 83 Ohio St.3d 404 (Ohio Supreme Court, 1998) (framework for constitutional challenges to statutes)
- Smith v. Goguen, 415 U.S. 566 (U.S. Supreme Court, 1974) (overbreadth doctrine and chilling effect on protected conduct)