City of Milwaukee v. Nelson

MILWAUKEE, CITY OF Plaintiff-Intervenor-

Appellant-Cross Petitioner, Wisconsin, Plaintiff, STATE of NELSON, Defendant-Respondent-Petitioner. Stefan

Supreme Court Argued May No. 86-2234-CR. November 1988. Decided 1989.

(Also 562.) reported in N.W.2d defendant-respondent-petitioner there were For the by Goldberg, Peter D. assis- argument and oral briefs public defender. tant state peti- plaintiff-intervenor-appellant-cross For the Thomas, G. assistant were briefs Scott tioner there attorney, city attorney, Langley, Grant F. city Milwaukee, argument by Thomas. and oral Mr. by Pang- filed William A.

Amicus curiae brief was Associates, Waukesha, Pangman & and William A. man Foun- Union of Wisconsin Civil Liberties for American Defense Association Criminal dation and Wisconsin Lawyers.

DAY, unpublished This is a review of an J. court reversed an appeals’ decision which order of the County, for Milwaukee Circuit Court Honorable Rus- Stamper, Judge. sell W. The circuit court had ruled City lOG-SlCLXa),1 Ordinance that Milwaukee a loiter- ordinance, unconstitutionally vague was ing and over- broad. It also 800.02(6), found the ordinance and sec. permits Stats. 1987-882 which arrest for ordinance violations, contravened the fourth amendment of the Loitering Prowling. (1) any 1 106-31. or Whoever does following city may within the limits of the of Milwaukee be fined ($500) upon not more than five hundred dollars or default of

payment thereof, imprisoned shall be in the house of correction of county days. Milwaukee for not more than 90 (a) prowls place, time, LOITERING. Loiters or in a at a or in a law-abiding manner not usual for individuals under circumstances safety that warrant alarm for property in the vicinity. Among may the circumstances which be considered in determining whether such alarm is warranted is the fact that the flight upon appearance actor officer, takes of a refuses to identify himself, manifestly endeavors any to conceal himself or object. flight by Unless the actor or other circumstances makes it impracticable, peace prior any officer shall arrest for an offense section, under this afford opportunity dispel the actor any an warranted, alarm which would by otherwise be requesting him to identify explain presence himself and person his and conduct. No shall be convicted of an peace offense under this section if the comply officer did preceding sentence, with the appears or if it explanation at trial given by that the and, the actor was true if peace time, believed officer at dispelled would have alarm. citation, 2 800.02 complaint, Form of summons and war municipal rant in (6) ordinance Authority violation cases .... to arrest person without a may warrant. A be arrested without a warrant for municipal the violation of a arresting ordinance if the grounds officerhas reasonable to believe violating that the or has violated the ordinance. I, sec. of the and art. States Constitution3 United appeals The court reversed Constitution.4 Wisconsin appeals. affirm the court of determinations. We these First, on is There four issues this review. are 106-31(l)(a), City unconstitu- Ordinance Milwaukee tionally vague? Second, not. is We conclude it 106-31(l)(a), City unconstitu- Ordinance Milwaukee tionally Third, do hold it is not. overbroad? We 106~31(l)(a), City and sec. Ordinance Milwaukee 800.02(6), Stats., the amendment? We violate fourth City they Fourth, of Milwau- do not. has conclude municipal power by enacting (City) an exceeded its kee suspi- allows for arrest on reasonable ordinance which only allows arrest that the ordinance cion? We conclude probable to believe ordinance cause the City there where therefore, has not and has been violated power. exceeded its relatively very modest and

This allows ordinance inquiry by officers of those whose unobtrusive loitering prowling circumstances described or under potential suspicion criminal arouses the ordinance very upheld activity. wisely this courts have Several join type them. We ordinance. .... CONSTITUTION FOURTH 3UNITED STATES people right be their The secure in

AMENDMENT. effects, houses, against persons, papers, unreasonable searches and issue, violated, seizures, and but no Warrants shall and shall be cause, affirmation, upon probable supported or and Oath searched, persons describing place particularly and the to be things seized. to be I. DECLARA ARTICLE 4WISCONSIN CONSTITUTION. RIGHTS_Searches and seizures. Section 11. TION OF houses, persons, papers, people right their to be secure in against not be searches and seizures shall effects unreasonable cause, violated; probable upon issue and no warrant shall but affirmation, describing supported by particularly oath or things place be seized. to be searched and (Nelson) 4, 1985, On March Stefan Nelson was police violating arrested two Milwaukee officers for City 106-31(1)(a), prohib- Milwaukee Ordinance which prowling. approximately p.m., its and At 7:30 the two officers observed Mr. Nelson on a street corner in front of a tavern called the Cobra Club. The area was allegedly high reported drug crime a area with traffick- ing, loitering, public drinking. loitering” signs “No posted were at each of the four corners of the intersec- tion near where the arrest occurred. away, officers,

From about a block and a half using binoculars, observed Nelson and another shaking pedestrians pas- hands with and automobile sengers. clasping The handshake was described as a fingers together, twisting them back and forth and reclasping then them. The handshakes were character- “friendly.” approach ized as Nelson would the automo- passenger resting door, biles and lean toward the his just hands inside the window. At no time did the exchange money officers observe an or other items. They they did not know Nelson and had no information suspect that he was a or was wanted in connection with any minutes, crime. After about fifteen the officers approached companion squad Nelson and his in their companion hurriedly car and Nelson and his entered the tavern.

The officers circled the block and returned to their point. Shortly initial thereafter, observation Nelson and person emerged the other from the tavern and resumed shaking pedestrians pas- hands with and automobile sengers. The officers waited another five to ten minutes reapproached squad and then Nelson in their car. quickly time, Nelson reentered the tavern. This how- ever, the officers followed him inside and asked him doing what he was outside the tavern to which he replied “nothing.” then arrested loiter- Nelson was City ing Ordinance in violation of Milwaukee 106-31(l)(a). weapon “patted no but was was down” police

Nelson placed in a van which took him to found.5He was Shortly van, had left the station. after Nelson twenty-five handgun caliber was it searched and was gun his, was that he Nelson admitted discovered. pants, placed he it it in his had had concealed handgun. stated he had stolen the the van. He also violating subsequently charged with sec. Nelson was Stats, weapon), (carrying 941.23, and secs. concealed (theft). 943.20(l)(a) (3)(a), and pled guilty separate munici- In action Nelson pal violating loitering the ordinance. On the court to charges, however, filed Nelson’s counsel vari- criminal including suppress pretrial a motion to motions ous illegal arrest a motion to from an and evidence obtained complaint. dismiss the hearing suppression held which included was

A testimony arresting police by At the end of officers. the requested orally hearing, a declar- Nelson’s counsel the pursuant atory judgment 806.04, Stats., to sec. Loitering unconstitu- Ordinance the Milwaukee declare challenged the constitu- for Nelson also tional. Counsel tionality violation and the of an arrest for an ordinance allowing municipality’s police power extension of an arrest. such declaratory judgment as to motion for

A written constitutionality and sec. ordinance 800.02(6), This Stats., filed the circuit court. was with effective; very “pat obviously it out turned down” was

5The carrying gun. Nelson was attorney, city on the district

motion was served attorney attorney, general. and the Although party proceeding, not a in the criminal City appeared arguing a brief and filed that it could declaratory party judgment made a to a action not be City arising criminal from a state action. The also the ordinance was constitutional. contended taking issues, After briefs on the various the circuit court rendered an oral decision on the matter on 18, 1986, and a decision on November written Novem- ordinance, 1986. It ruled that the alone ber and in 800.02(6), Stats., sec. violated the combination with fourth amendment of the United States Constitution I, art. sec. Constitution Wisconsin allowing probable an arrest on less than criminal cause. the ordinance The circuit court also held was unconsti- vague tutionally addition, overbroad. circuit probable court found no evidence of cause to believe had violated the ordinance.6 The evidence Nelson resulting suppressed from Nelson’s arrest was as fruit illegal declaratory judgment of an arrest. The was ruled appropriate City enjoined in the case and the was from enforcing the ordinance. nothing is the record

6There which shows that the State of challenged holding Wisconsin the circuit court’s that “there nowas probable to cause believe had violated the ordinance” and [Nelson] “any suppressed.” that of the fruits of the search must be Consequently, validity this court does not review the of these holdings opinion. in this participate

The record shows the State of Wisconsin declined to appeal appeals petition in the to the court of or in the for review to court. this appealed in the action and the City intervened ruling constitutionality on the of the court’s

circuit ordinance.7 opinion, of unpublished appeals the court

In an of circuit It judgment the the court. held that reversed the “hard core” proscrip- conduct fell within Nelson’s he not of the ordinance and therefore could tions8 unconstitutionally provisions its were complain appeals court of also concluded the ordi- vague. The unconstitutionally overbroad. In addi- nance was tion, no amendment was found. Nelson fourth violation court accepted this and the petitioned court review petition. his 106-31(1)(a), Loitering Ordinance

The Milwaukee of the Penal Code after sec. 250.6 Model patterned 1962) (Official draft, highly drafted the which was Extraordinary care American Law Institute. respected City appropriateness using appealed the of a declara 7The also proceeding court tory judgment and whether the circuit in a criminal enjoin enforcing court of City the ordinance. The from could declaratory judgment permissible allow appeals that it to held was enjoin could the circuit court this It also concluded that case. City cross-petitioned these City on prevent enforcement. The accepted cross-petition. issues and we parties Both have this those asked We decline decide issues. regardless of the ordinance the constitutional merits court reach may cross-petition. This court of on the issues of our decision may be constitutionality action even if the statutes decide the Doering public importance. See they if are of sufficient moot 481, 488, our Swoboda, Because N.W.2d 657 214 Wis. dispositive constitutionality ruling of the ordinance on the cross-petition. presented on decline to decide the issues case we ‘hard appeals conduct “meets the held Nelson’s 8The court prohibited in the proscriptions conduct zone core’ its have doubted could that no reasonable ordinance so 11.) criminality." (Slip page opinion, put drafting and effort was into of the Model Penal (ALI) sec. The Code and 250.6. American Law Institute in was established 1923. The Model Penal Code drafted by beginning ALI, had its in 1950. succeeding years

In the there ten were numerous Advisors, usually meetings lasting days, for three policy at which basic issues of were debated and resolved, prepared by Report- studies and drafts revised, ers or Consultants were considered and criticisms of the tentative drafts examined and reviewed, subjected and the entire work to a final product Reporters critical revision. by Advisors was in turn considered the Council in thirty-one some Council Drafts examined and de- years bated in the from 1953 to 1962. After consider- approval by Council, ation and revision or commentary supporting put material with was be- meetings fore successive of the Institute in Tenta- Drafts tive numbered 1 to 13 ....

Wechsler, “The Model Penal Code and the Codification Criminology Crime, of American Criminal Law” (R. Policy 1976). Public Hood ed. widely accepted.

The ALFs effort was It is said “nearly forty states have recodified their criminal using Singer, laws, Foreward, the Code as the lodestar.” Symposium: Anniversary The 25th the Model Penal Rutgers Code, 19 L.J. specifically,

More sec. 250.6 of the Model Penal thorough analysis ap- Code underwent before it was proved in its final form the ALI. In its comments to impli- 250.6, sec. the ALI discusses the constitutional cations of statutes from the United States Supreme opinion Papachristou, City Court al., et (1972) Jacksonville, 156,162 405 U.S. to numerous state concluding court that, decisions “[i]f even Model provision unconstitutionally vague is ... then it Code provision against loitering likely general no seems that be to survive constitutional review .... can drafted provision no with be deal [T]here would up good precise obviously no whose is but who A.L.I. Penal cannot be ascertained.” Model intention (hereinafter MPCc) Commentary 250.6, at Code sec. (Fla. 1975) Ecker, 104, 107 v. So. 2d 396-97. State 311 Penal Code sec. 250.6 was drawn noted that the Model defects and infirmities in in a manner to meet the vagrancy laws. earlier courts held statutes ordinances

Some have on section of the Model Penal Code uncon- based this City Omaha, 810 830 stitutional. See Fields v. F.2d of (identification (8th 1987); portion Cir. held unconstitu- App. tionally vague); City White, Portland 9 Or. v. (1972); City Miller, 85 239, Bellevue v. 495 P.2d 778 1975). (Wash. Others, 539, 536 603 2d P.2d Wash. Appeals, including found Court have the Wisconsin Wilks, 495, 117 Wis. 2d State v. them constitutional. 1984), (Ct. grounds, App. on other 498 345 N.W.2d aff’d. (1984), 93, cert. denied 471 358 273 121 Wis. 2d N.W.2d (1985). in a that have ruled U.S. Other courts 1067 (Fla. Ecker, 2d are: v. 311 So. 104 manner State similar (1975); 1975); State, 1019 Bell v. denied 423 U.S. cert. (1984); addition, this 267, 313 678 252 Ga. S.E.2d many where noted that cases court has suggested “the have held courts ordinances were invalid they accept palatable legislature a more that to the loitering statute, sec. 250.6 of such as version Code_” Starks, 256, v. 51 Wis. 2d State Penal Model (1971). reasoning of We find the 265, 186 N.W.2d approved Penal Code who have Model the courts persuasive. more be constitutionality question is a of an ordinance to the court decides without deference which this

of law reasoning. Spider Lake, Town Kmiec v. court’s lower (1973). “It 2d N.W.2d Wis. 60 elementary presumed consti- to be that an ordinance party attacking must its establish tutional Corp. invalidity beyond J doubt.” & N a reasonable Bay, 583, 585, 137 N.W.2d 53 2d Green 28 Wis. municipality’s court not interfere with “This will clearly illegal.” police power it is Id. of unless exercise indulged Every presumption to must sustain an be constitutionality possible. if at all Where ordinance’s constitutionality, exists to the it must be doubt as legislative by finding the enactment constitu- resolved Hardy, Castings Steel v. 144 Wis. 2d tional. See Racine (1988). 559, 426 N.W.2d I. VAGUENESS. is un-

Nelson’s counsel contends the ordinance constitutionally vague:9 unconstitutionally vague if

A statute or ordinance proper it fails to notice of the conduct it seeks afford arbitrary proscribe encourages it erratic to or if arrests The test to determine and convictions. vagueness so is whether statute or ordinance is intelligence ordinary men of must obscure that necessarily meaning its guess as to and differ as to sufficiently applicability its ... be definite must [it] appeals challenge held could 9The court of that Nelson constitutionality vagueness. parties regard ordinance’s with to Both however, standing facially challenge has to concede that Nelson City constitutionality Houston v. pursuant the ordinance of of Hill, agree 482 U.S. consequently 96 L. Ed 398 We decide the issue. potential wish to abide offenderswho so that region proscribed able to discernwhen laware chargedeither those who are is neared and conduct relegated applying enforcing it are not or

with culpability creating instead standards their own prescribed applying in the law. the standards 11, 16, 291, Wilson, N.W.2d 96 omitted). 2d Wis. Milwaukee (footnotes (1980) vagran- general Starks, struck down a this court vague cy Starks, 51 Wis. 2d at statute and overbroad. as unconstitutionally “loitering” was held The term 265. scope, place, vague or limited as unless it was city purpose. ordinance the Milwaukee Id. We conclude objection. specifically met that us now has before by just the ordinance in violation of One is not prowling “loitering.” Rather, one must be place, time, manner not usual for law- or in a “in a abiding at a circumstances that warrant under

individuals property safety in the alarm for may vicinity.” be are listed which factors Certain determining is warranted: whether alarm considered police appearance flight officer, failure to of a at the attempts identify or oneself, to conceal oneself Although flight objects. to answer an and failure constitutionally may by question be a itself officer’s may surrounding activity, protected lead circumstances probable that an offense cause to constitute such action Lawson, 461 U.S. v. Kolender committed. See has been (1983) (Brennan, concurring). J., 366, n. 4 suspect police give the the Furthermore, must the any “dispel opportunity would other- alarm which prior circum- an arrest if such warranted” wise be given, opportunity possible. is If no such are stances Ultimately, it of the offense. no conviction can be there suspect’s explana- if the trier of fact who decides is the dispelled any alarm,” not the tion “would have officer. clarity required.

“Impossible are standards” Kolender, human at 361. “There are areas of 461 U.S. problems present- by where, the nature of the conduct ed, great legislatures simply with cannot establish standards

precision.” Goguen, Smith v. U.S. that here is consti- We conclude the ordinance provides guide- in it notice and that sufficient tutional ordinary judges, officials, lines to law enforcement by scope, place, limiting term “loiter” in the citizens city prohibit- purpose. A similar Milwaukee ordinance upheld vagueness prostitution against ing a claim was Wilson, 2d at 96 Wis. 19. in Milwaukee that have examined similar codifica- Other courts loitering Penal section on have of the Model Code tions State, S.E.2d 678 it constitutional. Bell v. held (1984), Supreme approved Georgia an almost Court against of sec. of va- version 250.6 attacks identical passed question gueness. It the statute in the two found necessary requirements surviving vagueness at- for passes statute, whole, “The when read as tack: persons ordinary advising constitutional muster sought prohibited intelligence conduct to be ... also defines the offense in terms [and] statute arbitrary discourage enforcement.” Id. 313 S.E.2d which 681. The court reasoned that the “offense of at engages only when actor in conduct committed abiding which creates ‘a ‘not usual law individuals’ safety or immediate concern for the reasonable alarm vicinity.’” argu- property Id. To an vague, responded court ment that “usual” provides phrase is clear the clause which made person. have to alarm a reasonable that conduct would Id. It stated:

Initially investigating the officer must determine suspect’s poses danger the conduct to whether (b) persons property. guidelines or Section offers to making the this assist officer determination. However, require guidelines these do not the officer arrest, to make an even if one or more of the If, suggested present. drawing situations therein is professional experience, on all his the officer con- suspect presents danger persons cludes the or property vicinity loitering in the and arrests him for prowling, it is then a for trier of fact matter whether, under all the determine circumstances by evidence, suspect’s gave conduct revealed safety rise to reasonable alarm for property. resolving jury may In this issue the also (b). guidelines consider of Section statutes require does not a conviction if one or more of the point listed circumstances is found. We out that guidelines, they while there are useful do not may represent of factors be an exhaustive list which suspect’s assessing whether the conduct used reasonably point warrants alarm. We also out that (b), if the under Section no violation occurs investi- suspect opportu- gating an officer fails to afford nity dispel alarm ex- otherwise reasonable plaining his conduct.

Id. (1975), Ecker, 311 So. 2d the Florida

Supreme upheld Court a state statute identical to sec. analyzing After against vagueness. 250.6 an attack upheld cases similar statutes were where down, dissimilar statutes were struck the Florida court statutes, constitutionally said as to the similar valid is an thread in each of the important “there common peace either cases. In each instance aforementioned public safety or the was order threatened were So. 109. that the Id. 311 2d at It concluded involved.” justifiable warrant “under circumstances words concern for the alarm or immediate and reasonable safety vicinity persons property in mean those of or peace and are threatened or where order circumstances safety property jeopardized.” of where City App. reconciling White, 9 Ore. Portland v. Id. In of (1972), court 239, Oregon the Florida stated 495 P.2d apply judicial principle “failed to court legislative body construing in a the wishes legislation make the constitutional- that would manner Importantly, ly permissible.” Ecker, 311 So. at 109. 2d that the officer’s the Florida court showed discretion applied specific the statute can be controlled when it considering appeal. it in the consolidated As cases was hiding among the who bushes at a to one defendant was private dwelling a.m., found at the court such facts 1:20 person to be concerned for cause a reasonable “would safety safety property vicinity.” Id. in the his was in front of an at 110. Another defendant apartment building. observed asked identification he for When replied found the he had none. The court evidence public safety to be a to the so the insufficient threat charge loitering upheld. Id. The could not be at 111. may that, “while the statute be unconstitu- court stated tionally ground applied situations, this is certain no finding at the statute itself unconstitutional.” Id. 110. the ordinance is not unconstitutional

We conclude vagueness. grounds on

II. OVERBREADTH. challenged ordinance is also on grounds.

overbreadth “A statute or ordinance is overb- language, given meaning, road its when its normal is so sweeping may applied that its sanctions be to conduct permitted regulate.” which the state is not to Wilson, 96 Wis. 2d at 19. An ordinance which is overbroad is one punishes or which burdens activities which are consti- tutionally protected. See State v. Princess Cinema of Milwaukee, 646, 655, 96 Wis. 2d 292 N.W.2d 807 Overbreadth in an ordinance must be real and substan- judged tial when it relative to the ordinance’s “plainly legitimate sweep.” (citing Id. 96 Wis. 2d at 656 (1977)). Illinois, Ward v. 451 U.S. 767 vagrancy Starks, statute held overbroad in 51 cry 2d Wis. a far from the ordinance at issue here. This court criticized the Starks statute because it sweep up anyone any structure, could “near vehicle or private grounds.” Id. 51 Wis. 2d at 264. No unlawful activity required was to be found the Starks statute. required Furthermore, Id. statute Starks subject give being his account for there to no particular person. hand, On Id. the other the ordinance requires person here an officer to determine if the is in a place, conducting at a time and himself in a not manner law-abiding people usual for under circumstances that alarm to the officer. The ordinance also re- warrant quires question suspect allowing him the officer to dispel any alarm caused to the officer.

Determining statute, or a as that an ordinance applied particular defendant, is not overbroad does to a analysis. In order to assert a not end an overbreadth

451 necessary overbreadth, it is not constitutional claim of constitutionally be own conduct that the defendant’s protected. 19. “an overbreadth Wilson, Wis. 2d at 96 hypothesize may challenge situations in defendant] [a unconstitutionally ordinance would a statute or which rights upon of third the first amendment intrude parties.” K.F., 29, 40, v. 2d Milwaukee Wis. (1988) (citing Tronca, 84 Wis. 2d State N.W.2d (1978)). Nelson has made a 68, 89, 267 N.W.2d suggesting argument that a could be here similar subject taking stroll, a a offense while park seeking sitting bench, shelter from the on a shaking doorway, a candidate hands elements in as a campaigning. However, said, court has “[I]n this while potential applications constitutionality analyzing the regulation, the court will deem statute conceivable, because in some but ordinance invalid might improp- regulation be limited circumstances erly applied.” K.F., 2d at 40. Milwaukee v. 145 Wis. quoted has the United States Seventh This court approval stating, Appeals of “[T]he Circuit Court with ‘strong and ... the overbreadth doctrine medicine’ only real, not but of a statute ‘must be overbreadth judged well, as in relation to the statute’s substantial legitimate sweep.’” plainly Tronca, 2d 84 Wis. at 90 County, (quoting Herzbrun v. Milwaukee 504 F.2d 1974)). (7th Cir. highly unlikely taking We find it that someone a sitting park seeking stroll, bench, shelter a on a in doorway shaking elements, from the or hands while place, politically campaigning, doing in a would be so at law-abiding time, usual a or in manner not a that under circumstances warrant alarm to individuals safety persons police property or officers for the of vicinity. challenge the within On an overbreadth this argument found court untenable an in the Milwaukee v. “Loitering K.F. case that the Milwaukee of Minors” ordinance, 106-23, sec. Ordinances, Milwaukee Code of impermissibly apply walking would to a minor home standing waiting work, from or while for a bus after the curfew hour. This court held that the curfew ordinance prevent “is to the undirected or aimless conduct of during minors K.F., curfew hours.” Milwaukee v. too, 2d at 48. Here Wis. the ordinance is not aimed constitutionally protected at conduct but at conduct safety persons proper- which causes alarm for the ty. K.F., This court further said in Milwaukee v. that “while it is conceivable that a officer could mistakenly willfully apply or even [to ordinance proscription] potential someone not within its improper application such of the ordinance does not destroy constitutionality.” its Id. And in Wilson this person engaged political campaign- held court ing that swept up by would be the ordinance because ordinance, the Milwaukee Prostitution Ordinance 106-31(1)(9), sec. Ordinances, Milwaukee Code of re- quires showing specific accomplish intent to purpose Wilson, unlawful manifested. 2d at Wis. question here, 20-21.. The ordinance in while not containing intent, an element of does allow officer to differentiate between conduct which is constitution- ally protected unprotected from that which is not. The place, conduct that which occurs in a at a time or in a abiding manner not usual for law individuals under safety circumstances that warrant alarm for the property vicinity. Further, the officer if suspect mistaken, is chance the ordinance allows the dispel questioned. alarm when Supreme Court Ecker concluded

The Florida patterned statute, after sec. 250.6 is also its which that Ecker, 311 Code, not overbroad. Penal was of the Model cases 109. The court reasoned 2d So. at upholding contained common ordinances public safety peace thread; threatened or and order were found the Model involved. Id. The Florida court was language, that war- “those circumstances Penal Code’s persons property safety for the alarm rant safety vicinity” where the to mean those circumstances peace property jeopardized or where the Id. order is threatened. is not unconstitutional- conclude the ordinance We ly overbroad. SEIZURE.

III. UNREASONABLE arguments that makes several ordi- Nelson 800.02(6), I, Stats., both and sec. violate art. sec. nance and the federal Constitu- 11, of the state constitution protection against unreason- tion’s fourth amendment principles surround- seizures. The standards and able ing generally applicable are the fourth amendment also I, 11, State v. art. sec. of the Wisconsin Constitution. Paszek, 2d 184 N.W.2d 836 50 Wis. finding probable cause under federal standards “[A] normally finding probable in a cause will result standards.” Id. under state First, contends the ordinance unconsti- Nelson statutory there is no criminal counter- tutional because part require probable cause to believe that crime been committed for a warrantless arrest. Section has 800.02(6), specifically

Stats., authorizes arrests for municipal 800.02(6) violations of provides: ordinances. Section citation, complaint, 800.02 Form of summons municipal and warrant ordinance violation (6) Authority cases .... to arrest without a warrant. person may A be arrested without a warrant for the municipal violation of a ordinance arresting if the grounds officer has reasonable to believe that violating or has violated the ordinance. municipal Because a violation of a ordinance is not Kramsvogel, crime, a v. State 124 101, 116, Wis. 2d 369 (1985) (1985), denied, N.W.2d 145 cert. 474 U.S. 901 argues arresting municipal counsel for Nelson that for a statutory ordinance violation without a criminal coun terpart probable does not meet the constitutional cause requirement. grounds” A “reasonable for arrest has equated “probable been to mean cause.” Johnson v. State, 344, 348, 75 Wis. 2d 249 N.W.2d 593 We grounds therefore hold that the reasonable standard as 800.02(6), synonymous Stats., stated in sec. is also with probable the constitutional standard of cause. See also Wilks, 117 Wis. 2d at 507. “constitutionally an

Whether arrest is valid de- pends upon whether, ... at the moment the arrest is probable made, the officers had cause to make it— whether at that moment the facts and circumstances knowledge they within their and of which had reason- ably trustworthy information were sufficient to warrant prudent believing petitioner man in had committing Ohio, committed or was an Beck v. offense.” (1964) (citations omitted) (emphasis 379 U.S. 91 added). Michigan DeFillippo, also, See v. 443 U.S. 31 (1979); States, Carroll v. United 267 U.S.

(1925); Drogsvold, 247, 254, 2d 104 Wis. State Beck). 1981) (Ct. (citing App. N.W.2d any person law, ... of constitutional “As matter may pettiest lawfully be misdemeanor arrested custody.” placed temporarily California, v. Robbins (Stevens, (1980) dissenting) J., 420, 450 U.S. 453 omitted). question (footnote there are of whether relatively minor limits on arrests for constitutional by yet United been answered has not offenses Supreme Id. at n. 11. Court. States Washington Metro. Area Transit v. In Fisher 1982), (4th very Authority, this Cir. 690 F.2d constitutionality question of an arrest for minor challenged The defendant there was considered. offense eating on a train. arrest for an ordinance violation an Responding argument an arrest for an to her only punishable by a fine was uncon- that was offense noting after the United States stitutional, Supreme the court issue, stated: not decided the Court had interpretation of reasonableness an Until such adopted by requirement of the fourth amendment Court, Supreme] as- we must States [United applies it alike to all criminal offenses— sume that permitted severity punish- regard to without as the allow reasonable custodial arrests ment —to invoking process. means for the criminal traditional Fisher, F.2d at 1139 n. 6. agree with the Fisher court that until otherwise

We Supreme Court, States a custodial held the United penalties only are civil forfei- arrest for offenses whose per See Gladden v. tures is not se unconstitutional. also (5th 1989) (probable Roach, cause 864 F.2d 1196 Cir. pursuant requirement for an arrest to a disor- fulfilled derly period conduct ordinance for which a of incarcera- provided); McKinney George, tion not was 726 F.2d (7th 1984) (arrest disorderly Cir. conduct require- probable ordinance violation fulfilled cause ment). DeFillippo,

Furthermore, the United States Supreme Court reviewed an arrest made for a violation city of Detroit ordinance which was a misdemeanor Although specifically deciding offense. whether amendment, such an arrest violates the fourth “[w]hether Court stated an officer is authorized to ordinarily depends, instance, make an arrest in the first DeFillippo, on state law.” 443 U.S. at 36.10 general, expressly “statutes authorize process against officers to arrest without for offenses municipality, the laws of the committed in their presence.” Municipal McQuillin, 16A E. The Law of (3rd 1984). Corporations, 45.18, sec. 122 Ed. In situa- tions where ordinance violations are less than misde- may offenses, meanor “an officer arrest without a for such in warrant presence violations committed his or her statute_”9 by

if authorized to do so Id. sec. (1973 27.11, Fisher, Arrest, 294. See also E. Laws 162 ed.). 800.02(6), above, Stats., As noted sec. authorizes arrests for ordinance violations. See also v. Mustfov (D. 1987) Supp. (“[U]nder Rice, 1255, 663 F. Ill. police Illinois law a officer is authorized to arrest those if 10Wenote that it held the officers’ arrest of Nelson valid, violating DeFillippo, gun for the ordinance is under Nelson’s suppressed might not be even if we declared the ordinance unconsti DeFillippo, subsequently “The tutional. U.S. at 36. determined invalidity vagueness grounds ordinance on does not the ... validity undermine the of the arrest made for violation of that ordinance, and the evidence discovered in search [the suppressed.” suspect] at 40. should not have been Id. provide that for violating municipal ordinances

found only .. and no incarceration time a fine long has established in note it been also that

We may make that a law enforcement officer Wisconsin “proba- if the officer has arrest of a warrantless committing ... person was an to believe the ble cause Welsh, 2d State 108 Wis. ordinance violation.” J., (1982) (Abrahamson, dissent- N.W.2d 245 on 466 U.S. 740 An grounds, rev’d. other ing), however, officer, only warrantless arrest if may make a in the officer’s violation was “committed the ordinance presence unless other factors” existed. Id. for

Thirdly, argues that even if an arrest an Nelson constitutional, 800.02(6), sec. violation is ordinance Stats., provide process failing due to statu- violates law enforce- guidelines govern or administrative tory as or issue a written officials to when arrest ment only We conclude the statute authorizes citation. does to ordinance violations and pursuant arrests to make an arrest. One guidelines for when establish for allegedly any must look to ordinance violated procedures. “guidelines” governing enforcement in this establish certain minimal case does ordinance we find be constitu- requirements arrest which tionally reasonable. ordinance, a

By very terms of the violation alarm for “under circumstances warrant occurs vicinity.” Where safety property occur, is not unreasonable to believe such situations it Ceci, 320 might Cassidy be See F. arrest warranted. (1970) (statute reasonably is clear where Supp. authorization to arrest is based on whether the officer’s might possible injury it to there be is reasonable believe violation). addition, of its In the officer must arising out alarm,” any opportunity dispel to the actor an “afford not, cannot be convicted the actor if the officer does explanation given, If an the ordinance. violating reasonable ultimately decides if it is of fact the trier protection There is sufficient the circumstances. under explain oneself to avoid opportunity to by this provided arbitrary arrest. 968.085(2), possible as Stats.11 points to sec.

Nelson considering a law officer adopt to when guidelines guide- These violations. to arrest for ordinance whether deciding a law officer provide assistance to lines do for a misdemeanor issue a citation to arrest or when however, under sec. note, even We violation. a citation or not issue 968.085, to issue decision “[t]he by the law enforce- considered various factors and the discretionary decision are making ment officer 433, sec. 2. Note, Act. 1983 Wis. the officer.” with Citation; nature; Issuance; of accused release 11 968.085 may issue; (2) Authority officer effect. A law enforcement to .... any person or she has reasonable whom he a citation to issue may A citation grounds a misdemeanor. has committed to believe precinct headquarters or station in the field or at be issued subsequent a citation is to a lawful arrest. If officerinstead of issued, or her own released on his cited shall be citation, determining the law recognizance. to issue a whether may consider whether: officer enforcement (a) given proper identification. The accused has (b) willing sign citation. to The accused is danger (c) represent to himself appears of harm The accused herself, property. person or another to the (d) of ties sufficient evidence accused can show The community. appear (e) previously or failed to failed accused has respond to a citation. necessary carry appears out (f) or further detention Arrest enforcement investigative with law legitimate in accordance action policies. agency Fourthly, is the ordinance claims that Nelson requirement probable before an arrest cause a without authority However, cited no Nelson has be made. can Code, the Model Penal 250.6 of that sec. holds which patterned, ordinance is Milwaukee the after which by only probable cited case standard. cause lacks a specific Wilks, issue is this has addressed which Nelson probable cause considered 495. Wilks 2d at 117 Wis. question, challenges in ordinance to the Milwaukee 800.02(6). 106-31(l)(a) authorizing statute, and the 800.02(6), which concluded that in Wilks The court warrant for an arrest without a officer to an allows “reasonable if officer has the violation ordinance grounds violating or has that the to believe probable ordinance,” cause contains a the violated previously requirement. has This court Id. at 501. synonymous grounds” equated as “reasonable the term considering “probable a criminal arrest in cause” with 968.07(1)(d). State, 75 2d Johnson v. Wis. statute, sec. 800.02(6) sec. “reasonable hold that 348. We also at grounds” probable equivalent language cause to a requirement. Wilks, Nelson attacks defendant did

As the probable claiming ordinance, not contain it does requirement. court concluded The Wilks cause probable be- cause standard contain a ordinance did just circum- more than mere “the officers need cause Wilks, an arrest. alarm” to make that warrant stances requires also at 507. The ordinance 117 Wis. 2d place, prowling at a to be individual abiding usual for law time, in a manner not that, as a court also noted Id. The Wilks individuals. probable assuring safeguard cause, ordi- further any by dispel alarm allows the individual nance explaining her conduct. Id. his or interpretation agree made with We Model Penal Code were The drafters of the court. Wilks problems potential probable cause the the aware might cause. The of its section earlier version developed however, section and drafters, reviewed the they City. doing by stated, the so the version used change thought order to desirable in save “this was possible as a attack and invalidation section from probable authorizing subterfuge arrest without agreed has at 390. A New York court cause.” MPCc People Berck, 32 N.Y.2d assertion. with this (1973) denied, cert. 33, 300 N.E.2d N.Y.S.2d 414 U.S. 1093 800.02(6), and sec.

We conclude the ordinance I, of the Wisconsin Stats., violate art. sec. 11 do not the United fourth amendment of or the Constitution Constitution. States HOME RULE.

IV. by allowing Finally, arrest for contends that Nelson represents “suspicious conduct,” a broa- the ordinance authority beyond dening the constitutional City statutory parameters with which and granted. City passed has that, because

Nelson contends authority extending police to arrest be- an ordinance statutory requirements yond and constitutional municipal City probable its cause, has exceeded “Municipalities powers. have no inherent in Wisconsin regulate They powers. authorized, however, local are XI, by affairs art. sec. 312of the Wisconsin Constitution City by 62.11(5),13 Madison v. sec. Stats.” Schultz, 188, 195, (Ct. 98 Wis. 2d App. N.W.2d 798 1980) (citation omitted). Since we have decided that 800.02(6), both the Stats., ordinance and sec. require probable made, cause before an City arrest has powers granted XI, not exceeded those to it art. sec. 3 62.11(5). Wisconsin Constitution and sec. Loitering Milwaukee and Prowling Ordinance does not anything allow arrest on less than the constitutional statutory requirements of probable cause to believe the ordinance has been violated. Loitering, by very its requires “proactive” nature response by police the rather than “reactive.” Proactive responses are those prevent which crime before it Nowak, People happens. 363 N.Y.S.2d 46 (1975). A.D.2d Many actively involved in law Corporations; Corporations. ARTICLE XI. how formed -(3) Municipal rule; limit; pay home debt tax to debt. (1) villages organized pursuant Section 3. Cities and to state law may government, subject only determine their local affairs and to legislature this constitution and to such enactments of the of uniformity every city every statewide concern as with shall affect village. prescribed by The method of such determination shall be legislature. the (5) Except 13 62.11 Common Council .... Powers. else as specifically provided, where in the statutes the council shall have management city, the property, finances, and control of the highways, navigable waters, public service, and the and shall have power government good city, to act for the order of the for its benefit, health, safety, commercial and for the and welfare of the public, may carry powers license, regulation, out its suppression, borrowing money, levy, appropriation, fine, tax imprisonment, confiscation, necessary and other or convenient powers hereby means. The conferred shall be in addition to all other grants, only by express language. and shall be limited proactive to is time to resort a it enforcement believe police Diego approach chief San crime. longer ‘rely solely stating; “police quoted can no on as approaches control, to crime administra- reactive develop proactive approaches help utiliz- tors must ” against ing fight crime.’ F. field officer in the street the Remington, Kimball, Newman, E. H. Goldstein and D. Dickey, Administration, 44 Justice W. Criminal Supreme recognized need for Court The Florida purpose 250.6; like sec. “the whole statutes provide a suitable is to law enforcement with statute crime_” prevent Ecker, 2d at 311 So. tool to added). nothing loitering response (emphasis A do unfavorably by public. upon The ALI looked response attitude toward comments state no significant loss in effective law lead to “would justifiably serious and would encounter enforcement political MPCc, at 390. resistance.” City Milwaukee Ordi- conclusion we hold that unconstitutionally 106-31(l)(a), vague is not nance No. does not also hold that ordinance We overbroad. protections and federal constitutional violate state against conclude We further unreasonable seizures. City by enacting ordinance, Milwaukee Accordingly, power granted it. exceeded the has not appeals. court of we affirm the appeals By decision of the court the Court.—The is affirmed. (concurring).

DAY, J. very police with little furnishes us Government police “report- mainly “protection.” What we have investigation ing” after the crime and of crime hopefully apprehension of the then committed and criminal. respond

I write this concurrence to to what I expressed believe to be the unwarranted concerns in the dissent. rising

Our crime rates and fear in which our testimony desperately citizens live is to the fact that we protection police causing need from those bent on us Department Justice, harm. The United States in its survey public opinion Milwaukee, about crime in majority concluded, [81%] “a of Milwaukee residents opinion were of the that crime in the United States was problem increase, on the that of crime was as portrayed by media, serious as so, news if not more being criminally and their that own chances of victim- people ized had risen. Most also believed that general had curtailed their activities because of fear of crime.” United States National Criminal Justice Infor- Service, mation and Statistics Pub. No. 50-NCS-C (Dec. 1978). Crime, Milwaukee: Public Attitudes about government One of the few tools that has tried to protection public furnish to the is this very type prowling law, ordinance City enacted of Milwaukee. opening says,

The dissent’s sentence “[Prevention obviously preferable apprehension of crime is punishment of criminals after the commission of an offense.” position,

The dissent then however, takes a goal by arguing would thwart such a that the Milwau- Loitering kee Ordinance is unconstitutional. majority opinion

While cites those court deci- upheld anti-loitering provisions sions that have the Model Penal Code the dissent relies on the ratio- nale of those courts that would strike down such an ordinance. Lawson, 461 U.S.

The dissent relies on Kolender (1983), being challenged a where the law is case Kolender involved a unlike the Milwaukee ordinance. “requires persons criminal statute which California provide on to a ‘credible who loiter or wander the streets their and to account for and reliable’ identification by peace presence requested officer. ...” Id. 461 when provide A to such “credible and U.S. at 353. failure grounds for arrest. Id. information constituted reliable” held that there U.S. at 357. The Court Kolender suspect determining has “no what a to was standard provide satisfy requirement to to do in order Id. 461 U.S. at and reliable’ identification.” ‘credible requirement Thus, this “identification” was found 358. peace completely officers’ discretion be within Id. 461 U.S. held unconstitutional. and statute was 361. at Loitering however, Ordinance, it

In the Milwaukee peace officer’s conduct, not a failure to answer a suspect possibility inquiry of arrest. The that raises explain opportunity merely provided his an by it before an arrest the alarm warranted behavior and only may made. The Court Kolender addressed be portion vagueness the identification has no The Milwaukee Ordinance California statute. requirement. identification such quotes from Kolender in such reliance dissent discriminatory enforcement words, “harsh particular groups against prosecuting officials, local 472.) (Dissent, page displeasure." deemed to merit their might unscrupulous police harass is that The inference legitimate concerns than the for reasons other may Any law or ordinance embodied in this ordinance. designed subject laws But we have other be to abuse. rights many punish civil abuses as the such curb reality amply to than What is closer suits demonstrate. police possibility of harassment is the number of would not that could result because victims and thwart the loiterer and be allowed to intervene lying looking prowler for his next victim if the in wait position prevail. “rights” to Whose dissent’s were protected the dissent’s rationale? would be under Certainly average abiding right not the law citizen’s to property. in their be secure growing There is a and laudable concern for rights.” greatest right right “victims But the is the place. be a victim in the first This to ordinance is properly designed to thwart those who intend to victim- ize. Supreme Washington stated, “[t]he Court has

importance loitering of ordinances cannot be mini- They necessary protection society mized. are for the of preservation public peace.” and for the Seattle v. Drew, 405, 412, 70 2d Wash. 423 P.2d (Fla. 1975); Ecker, See also State v. 311 So. 2d 104 Sherry, Vagrants, Rogues Vagabonds Con- —Old cepts Revision, in Need 48 Cal. L. Rev. (1960). agree. particular I The Seattle court held the gave ordinance before it unconstitutional but then its approval language to the in Model Penal Code sec. 250.6. Id. keenly problems

The drafters were aware of the presented loitering They the old stated, statutes. simply by “the offense is not made out the fact of requires but circumstances such that justifies safety persons actor’s behavior alarm for the property.” or A.L.I. Model 250.6, Penal Code sec. Commentary (hereinafter MPCc). at 391 The drafters further, went “this formulation limits the offense to its justifying essential law enforcement rationale of inter- incipient crime and avoids the prevent vention socially simply who are liability extension Id. This ordinance meets Milwaukee undesirable.” Wilson, (1980) 11, 291 96 Wis. 2d N.W.2d place being specific scope, as requirements of states, quite clearly in purpose. Wilson indicated “we of the statute there at Starks it was the failure requirements scope, as to specificity ‘to meet the issue unconstitutionally it purpose’ rendered place which Wilson, (emphasis at 96 Wis. 2d 18-19 vague.” arguments that the ordinance at the face original). “place” requirements, issue Wilson did not merit meet that it did not have to all this court concluded prohibition to three, limited its stating, “[hjaving city is not loitering specific purpose, for a unlawful specific prohibition limit its of that required to further areas.” Id. 96 Wis. 2d only to at loitering kind of certain out, point to 250.6 250.6 is As the comments sec. 19. “specific for unlawful prohibiting loitering at a aimed The comments state: purpose.” matter, requires at least the section As threshold Specifical- of behavior. some manifestation aberrant place, prowl ‘in a at ly, the loiter or actor must law-abiding time, in a not usual manner be such that The circumstances must individuals.’ safety of ‘alarm for this behavior warrants vicinity.’ property in the MPCc, at 390. increasing an amount suffer from ever

We the societal need Much is written about crime. violent This of criminal acts. the commission prevent step right in the direction. is a ordinance I concur. ABRAHAMSON, J., (dissenting).

SHIRLEY S. is obviously preferable Prevention of crime to appre- punishment hension and after the criminals commis- believe, however, I do sion an offense. loitering ordinance at issue in case is this a constitu- attaining means of the important goals tional of crime prevention and deterrence. opinion

The majority reasoning finds the persuasive. upholding loitering courts similar laws I do I agree reasoning not. with the of the courts have who loitering found similar laws unconstitutionally vague. I Therefore dissent. Loitering based, Milwaukee Ordinance is as explains, majority opinion on sec. 250.6 of the 1962 Reporters

Model Penal Code. The who drafted com- mentaries in expressed sec. 250.6 1980 themselves concerns about its constitutionality.1 Expían- a 1985 any event, years upsurge 1In recent have seen a dramatic vagrancy loitering

constitutional attacks on statutes and in the success of those efforts .... policy, abrogation As a matter of constitutional is arguably indeterminancy sound. There irreducible in the defini- loitering, necessarily tion of as there discretion in the ‘public safety decide the first what the instance demands’ or ‘justify suspicion’ whether circumstances or ‘warrant alarm’ _If provision unconstitutionally vague, even the Model Code Oregon suggests, likely general as the decision then it seems that no loitering provision against can be survive drafted to constitutional course, proscriptions specific review. Of narrower of with purpose e.g., may to solicit deviate sexual continue to — relations — valid, provision be but there would be no deal to with the obviously up good precise who is no but whose intention cannot willing ascertained. be Most courts are to consider in a void-for vagueness analysis provision impossibili- the need for some and the ty achieving greater precision. strongly of This factor cuts in favor constitutionality ALI, of the Model Code Provision. Model Commentaries, 394, 250.6, (1980). pp. Penal Code and sec. 396-97 468 atory to Article 250 of the 1962 Model Penal Code Note (of Reporters part), 250.6 is a the which sec. Code background of the cautioned that the constitutional (entitled Disorderly Riot, 250 Con- offenses Article Offenses) changed significantly duct and Related had promulgation of the Model Code in 1962 and since become more concerned about the the courts had vagueness penal of statutes.2 process Vagueness the four- is a due issue under United States Constitution. teenth amendment part analysis to a statute a two test courts use grounds vagueness: challenged First, of on the must sufficient defini- statute define the offense with ordinary people can understand what teness that (notice prohibited requirement). Second, the conduct must in a manner that does statute define the offense discriminatory encourage arbitrary enforce- and govern (requirement guidelines to law of minimal ment enforcement). enforcing applying charged with Those creating relegated their own be the law cannot applying culpability of stan- of instead standards Courtney, prescribed 74 law. State v. See dards (1976); 711, v. 705, N.W.2d 714 State 2d 247 Wis. (1971); 262-63, 256, Starks, 2d 186 N.W.2d 52 Wis. Papachristou City Jacksonville, 405 U.S. v. (1972); Lawson, U.S. Kolender 168-70 (1983). 357-58 Reporters in 1985 as follows: wrote

2The changed significantly protected legislation expressive Code: 1962. ... Official Draft the constitutional under the general, activity has increased; judicial from first since legislative amendment Explanatory concern promulgation background expanding competance. with have withdrawn Notes, concepts these vagueness p. A.L.I., Model many offenses has Model of liberties Code in areas of Penal penal persuaded, judges I am been,3 as other have that loitering provision Penal Code’s the Model and similar specificity require- do not meet laws constitutional scope, place purpose. as to ments The ordinance makes a who “loiters or place, prowls time, in a at a or in a manner not usual for law-abiding individuals under circumstances war- safety property alarm for rant of in the vicinity” culpable. “loitering” hanging

The word connotes the act of any apparent purpose. around without A law that prohibits loitering without further definition is un- constitutionally vague distinguish because it fails to between innocent conduct and conduct calculated to give adequate cause harm. Such a fails law notice of proscribed. supra Starks, what conduct is See State v. City 263; White, 51 2dWis. at Portland v. 495 P.2d of (1972); City 778, Drew, 522, 779 Seattle v. 423 P.2d of (Wash. 1967); Papachristou 524 Jackson, v. 405 U.S. (1972); People Bright, 156, 376, 162 v. 71 N.Y.2d 520 (1988). 1355, N.E.2d 1359 3See, e.g., City White, (Or. App. Portland v. 495 P.2d 778 of 1972); City Miller, 539, Bellevue v. 88 Wash. 2d 536 P.2d 603 of Omaha, (Wash. 1975); City (8th Fields v. 1987); 810 F.2d 830 Cir. of Berck,

People 567, v. (1975); People v. N.Y.2d 300 N.E.2d 411 Bright, (1988). 71 N.Y.2d 520 N.E.2d 1355 vagueness For further discussion of the void for doctrine and laws, see, e.g., Amsterdam, Federal Constitutional Restric- Status, tions on the Punishment Crimes Crimes General Obnoxiousness, Like, Displeasing Crimes Police and the Officers (1967); Note, Stop-and-Identify Criminal Law Bulletin 216-224 Exploring Statutes Kolender v. Lawson: the Fourth and After Fifth Issues, Amendment (1984); Note, Kolender 69 Iowa L. Rev. 1057 Lawson: Fourth and Inches on Fourth Amendment Issues and Supreme Punts, Court Contemp. 10 J. Law attempt phrases in which to

The the ordinance loitering scope of conduct which is in a the to narrow law-abiding not individuals and manner usual for that alarm do not cure the under circumstances warrant They vagueness provide neither the actor nor the defect. by which to officer with criteria law enforcement place, for is an unusual time or manner determine what public abiding or, the citizen to be out in with a law exception flight, identify refusal oneself concealment, This circumstances warrant alarm. what upheld loitering ordinance, in unlike the ordinance Wilson, 11, v. N.W.2d 452 96 Wis. 2d 291 Milwaukee (1980), require specific a a intent to commit does not crime. explanation provi- do the identification and

Nor vagueness the defect. There of the ordinance cure sions nature of the is no indication in the ordinance explanation might adequate be identification dispel an officer’s alarm. response to the offi-

In this case defendant’s doing “nothing.” question was of what he was cer’s nothing.” “Doing “doing very loitering essence very suspicious nothing” may and “noth- be conduct explanation ing” hardly conduct. But an of one’s constitutionally clearly amake the ordinance cannot culpable doing nothing. for identification Courts have concluded that similar requirements loitering explanation laws are void they provide vagueness a standard for because do a officers to determine what enforcement law satisfy requirement. suspect has do order to supra, e.g., Lawson, 358; See, U.S. at v. 461 Kolender People Berck, v. 32 N.Y.2d N.E.2d supra, (1973); People Bright, at 1360. N.E.2d challenged required Kolender, statute person suspected to furnish “credible and upon police reliable identification” officer’s demand. writing majority O’Connor, Justice for the of the United Supreme although Court, States concluded that Diego police examples might San chief offered of what statutory identification,” be “credible and reliable requirement dependent was nonetheless on dis- giving personnel virtually cretion, law enforcement “a power charge unrestrained to arrest and with a supra, Kolender, violation.” 461 U.S. at 360. The Court subjective, that, concluded because the standard was the law “furnishes a convenient tool for ‘harsh and discriminatory prosecuting enforcement local offi- against particular groups cials, displeasure.’” deemed to merit their quoting Papachristou, supra

Id., 405 U.S. at 170. gives suspect, upon

The Milwaukee ordinance the being stopped, opportunity dispel any the alarm, to and thus Kolender, avoid arrest. Like the statute in the Milwaukee ordinance leaves the definition of this “opportunity” entirely up judgment to the individual police making stop. police the officer the It is the officer significant guidance determines, who without from the ordinance, what “alarm,” circumstances cause and it is police again significant decides, officer who without guidance suspect ordinance, from the whether the has adequately dispelled by identifying that alarm himself explaining presence or herself and his or her and conduct. The ordinance leaves all of the critical defini- up tions so, the discretion of law enforcement and Kolender, under it violates the federal Constitution.4 suggestion merely 4The that a could be arrested because supply explanation he or she refuses to identification or an also “[ultimately, majority The that it observes suspect’s explanation if the trier fact who decides any dispelled alarm,’ not the offi- have ‘would recognize important, however, to isIt At 447-448. cer." availability sense no after arrest of a trial that requirement in- laws that constitutional obviates govern guidelines enforcement law minimal clude way put in Kolender: it this O'Connor Justice officials. certainly dangerous legisla- if the It would be large enough to catch all ture could set net offenders, step possible and leave it to the courts to detained, say rightfully who could be inside would, large. should be set at This some who legislative extent, judicial substitute Kolender, supra, department government. Reese, States v. 7, quoting United U.S. at n. U.S. majority that the Milwaukee loiter- concludes objections

ing court articulat- ordinance meets the this I conclude ed Starks. At 447. Sparks, ordinance, down in does like the statute struck Supreme States meet the standards the United Accordingly I dissent. has established. Court Nathan I am authorized state that Chief Justice joins in this dissent. S. Heffernan only significant questions sum- are raises fifth amendment which See, Kolender, supra, e.g. opinion. marily majority addressed Commentaries, 9;n. A.L.I. Penal Code and U.S. at Model 250.6, pp. 397-98 sec.

Case Details

Case Name: City of Milwaukee v. Nelson

Court Name: Wisconsin Supreme Court

Date Published: May 11, 1989

Citation: 439 N.W.2d 562

Docket Number: 86-2234-CR

Court Abbreviation: Wis.