KOLENDER, CHIEF OF POLICE OF SAN DIEGO, ET AL. v. LAWSON
No. 81-1320
Supreme Court of the United States
Argued November 8, 1982—Decided May 2, 1983
461 U.S. 352
A. Wells Petersen, Deputy Attorney General of California, argued the cause for appellants. With him on the briefs were George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J.
Mark D. Rosenbaum, by invitation of the Court, 459 U. S. 964, argued the cause as amicus curiae in support of the judgment below. With him on the brief were Dennis M. Perluss, Fred Okrand, Mary Ellen Gale, Robert H. Lynn, and Charles S. Sims.*
JUSTICE O‘CONNOR delivered the opinion of the Court.
This appeal presents a facial challenge to a criminal statute that requires persons who loiter or wander on the streets to provide a “credible and reliable” identification and to account for their presence when requested by a peace officer under circumstances that would justify a stop under the standards of Terry v. Ohio, 392 U. S. 1 (1968).1 We conclude that the statute as it has been construed is unconstitutionally vague within the meaning of the Due Process Clause of the Fourteenth Amendment by failing to clarify what is contemplated
*Briefs of amici curiae urging reversal were filed by William L. Cahalan, Edward Reilly Wilson, and Timothy A. Baughman for the Wayne County Prosecutor‘s Office; and by Wayne W. Schmidt, James P. Manak, and Fred E. Inbau for Americans for Effective Law Enforcement, Inc., et al.
Briefs of amici curiae urging affirmance were filed by Eugene G. Iredale for the California Attorneys for Criminal Justice; and by Michael Ratner for the Center for Constitutional Rights.
Briefs of amici curiae were filed by John K. Van de Kamp, Harry B. Sondheim, and John W. Messer for the Appellate Committee of the California District Attorneys Association; by Dan Stormer, John Huerta, and Peter Schey for the National Lawyers Guild et al.; and by Quin Denvir and William Blum for the State Public Defender of California.
I
Appellee Edward Lawson was detained or arrested on approximately 15 occasions between March 1975 and January 1977 pursuant to
Lawson then brought a civil action in the District Court for the Southern District of California seeking a declaratory judgment that § 647(e) is unconstitutional, a mandatory injunction to restrain enforcement of the statute, and compensatory and punitive damages against the various officers who detained him. The District Court found that § 647(e) was overbroad because “a person who is stopped on less than probable cause cannot be punished for failing to identify himself.” App. to Juris. Statement A-78. The District Court enjoined enforcement of the statute, but held that Lawson could not recover damages because the officers involved acted in the good-faith belief that each detention or arrest was lawful.
Appellant H. A. Porazzo, Deputy Chief Commander of the California Highway Patrol, appealed the District Court decision to the Court of Appeals for the Ninth Circuit. Lawson
The officers appealed to this Court from that portion of the judgment of the Court of Appeals which declared
II
In the courts below, Lawson mounted an attack on the facial validity of
III
Our Constitution is designed to maximize individual freedoms within a framework of ordered liberty. Statutory limitations on those freedoms are examined for substantive authority and content as well as for definiteness or certainty of expression. See generally M. Bassiouni, Substantive Criminal Law 53 (1978).
As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra; Smith v. Goguen, 415 U. S. 566 (1974); Grayned v. City of Rockford, 408 U. S. 104 (1972); Papachristou v. City of Jacksonville, 405 U. S. 156 (1972); Connally v. General Construction Co., 269 U. S. 385 (1926). Although the doctrine focuses
Section 647(e), as presently drafted and as construed by the state courts, contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a “credible and reliable” identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest. An individual, whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets “only at the whim of any police officer” who happens to stop that individual under
At oral argument, the appellants confirmed that a suspect violates
It is clear that the full discretion accorded to the police to determine whether the suspect has provided a “credible and reliable” identification necessarily “entrust[s] lawmaking ‘to the moment-to-moment judgment of the policeman on his beat.‘” Smith, supra, at 575 (quoting Gregory v. Chicago, 394 U. S. 111, 120 (1969) (Black, J., concurring)). Section 647(e) “furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure,‘” Papachristou, 405 U. S., at 170 (quoting Thornhill v. Alabama, 310 U. S. 88, 97-98 (1940)), and “confers on police a virtually unrestrained power to arrest and charge persons with a violation.” Lewis v. City of New Orleans, 415 U. S. 130, 135 (1974) (POWELL, J., concurring in result). In providing that a detention under
Appellants stress the need for strengthened law enforcement tools to combat the epidemic of crime that plagues our Nation. The concern of our citizens with curbing criminal activity is certainly a matter requiring the attention of all branches of government. As weighty as this concern is, however, it cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity. See Lanzetta v. New Jersey, 306 U. S. 451 (1939). Section 647(e), as presently construed, requires that “suspicious” persons satisfy some undefined identification requirement, or face criminal punishment. Although due process does not require “impossible standards” of clarity, see United States v. Petrillo, 332 U. S. 1, 7-8 (1947), this is not a case where further precision in the statutory language is either impossible or impractical.
IV
We conclude
It is so ordered.
JUSTICE BRENNAN, concurring.
I join the Court‘s opinion; it demonstrates convincingly that the California statute at issue in this case,
The price of that effectiveness, however, is intrusion on individual interests protected by the Fourth Amendment. We have held that the intrusiveness of even these brief stops for purposes of questioning is sufficient to render them “seizures” under the Fourth Amendment. See Terry v. Ohio, 392 U. S., at 16. For precisely that reason, the scope of seizures of the person on less than probable cause that Terry
“[T]he person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” Id., at 34 (WHITE, J., concurring).
Failure to observe these limitations converts a Terry encounter into the sort of detention that can be justified only by probable cause to believe that a crime has been committed. See Florida v. Royer, 460 U. S., at 501 (opinion of WHITE, J.); id., at 509-511 (BRENNAN, J., concurring in result); Dunaway v. New York, supra, at 216.
The power to arrest—or otherwise to prolong a seizure until a suspect had responded to the satisfaction of the police officers—would undoubtedly elicit cooperation from a high percentage of even those very few individuals not sufficiently coerced by a show of authority, brief physical detention, and a frisk. We have never claimed that expansion of the power of police officers to act on reasonable suspicion alone, or even less, would further no law enforcement interests. See, e. g., Brown v. Texas, 443 U. S. 47, 52 (1979). But the balance struck by the Fourth Amendment between the public interest in effective law enforcement and the equally public interest in safeguarding individual freedom and privacy from arbitrary governmental interference forbids such expansion. See Dunaway v. New York, supra; United States v. Brignoni-Ponce, 422 U. S., at 878. Detention beyond the limits
In sum, under the Fourth Amendment, police officers with reasonable suspicion that an individual has committed or is about to commit a crime may detain that individual, using some force if necessary, for the purpose of asking investigative questions.3 They may ask their questions in a way calculated to obtain an answer. But they may not compel an answer, and they must allow the person to leave after a reasonably brief period of time unless the information they have acquired during the encounter has given them probable cause sufficient to justify an arrest.4
California cannot abridge this constitutional rule by making it a crime to refuse to answer police questions during a
Second, it goes without saying that arrest and the threat of a criminal sanction have a substantial impact on interests protected by the Fourth Amendment, far more severe than
By defining as a crime the failure to respond to requests for personal information during a Terry encounter, and by permitting arrests upon commission of that crime, California attempts in this statute to compel what may not be compelled under the Constitution. Even if
JUSTICE WHITE, with whom JUSTICE REHNQUIST joins, dissenting.
The usual rule is that the alleged vagueness of a criminal statute must be judged in light of the conduct that is charged to be violative of the statute. See, e. g., United States v. Mazurie, 419 U. S. 544, 550 (1975); United States v. Powell, 423 U. S. 87, 92-93 (1975). If the actor is given sufficient notice that his conduct is within the proscription of the statute, his conviction is not vulnerable on vagueness grounds, even if as applied to other conduct, the law would be unconstitutionally vague. None of our cases “suggests that one who has received fair warning of the criminality of his own conduct from the statute in question is nonetheless entitled to
These general rules are equally applicable to cases where First Amendment or other “fundamental” interests are involved. The Court has held that in such circumstances “more precision in drafting may be required because of the vagueness doctrine in the case of regulation of expression,” Parker v. Levy, supra, at 756; a “greater degree of specificity” is demanded than in other contexts. Smith v. Goguen, 415 U. S. 566, 573 (1974). But the difference in such cases “relates to how strict a test of vagueness shall be applied in judging a particular criminal statute.” Parker v. Levy, 417 U. S., at 756. It does not permit the challenger of the statute to confuse vagueness and overbreadth by attacking the enactment as being vague as applied to conduct other than his own. See ibid. Of course, if his own actions are themselves protected by the First Amendment or other constitutional provision, or if the statute does not fairly warn that it is proscribed, he may not be convicted. But it would be unavailing for him to claim that although he knew his own conduct was unprotected and was plainly enough forbidden by the statute, others may be in doubt as to whether their acts are banned by the law.
The upshot of our cases, therefore, is that whether or not a statute purports to regulate constitutionally protected conduct, it should not be held unconstitutionally vague on its face unless it is vague in all of its possible applications. If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the
Of course, the overbreadth doctrine permits facial challenge of a law that reaches a substantial amount of conduct protected by the First Amendment; and, as I have indicated, I also agree that in First Amendment cases the vagueness analysis may be more demanding. But to imply, as the majority does, ante, at 358-359, n. 8, that the overbreadth doctrine requires facial invalidation of a statute which is not vague as applied to a defendant‘s conduct but which is vague as applied to other acts is to confound vagueness and overbreadth, contrary to Parker v. Levy, supra.
If there is a range of conduct that is clearly within the reach of the statute, law enforcement personnel, as well as putative arrestees, are clearly on notice that arrests for such conduct are authorized by the law. There would be nothing arbitrary or discretionary about such arrests. If the officer arrests for an act that both he and the lawbreaker know is clearly barred by the statute, it seems to me an untenable exercise of judicial review to invalidate a state conviction because in some other circumstance the officer may arbitrarily misapply the statute. That the law might not give sufficient guidance to arresting officers with respect to other conduct should be dealt with in those situations. See, e. g., Hoffman Estates, supra, at 504. It is no basis for fashioning a further brand of “overbreadth” and invalidating the statute on its face, thus forbidding its application to identifiable conduct that is within the State‘s power to sanction.
I would agree with the majority in this case if it made at least some sense to conclude that the requirement to provide “credible and reliable identification” after a valid stop on reasonable suspicion of criminal conduct is “impermissibly vague in all of its applications.” Hoffman Estates v. Flipside,
“It is self-evident that there is a whole range of conduct that anyone with at least a semblance of common sense would know is [a failure to provide credible and reliable identification] and that would be covered by the statute. . . . In these instances, there would be ample notice to the actor and no room for undue discretion by enforcement officers. There may be a variety of other conduct that might or might not be claimed [to have failed to meet the statute‘s requirements] by the State, but unpredictability in those situations does not change the certainty in others.” Smith v. Goguen, 415 U. S., at 584 (WHITE, J., concurring in judgment).
See id., at 590 (BLACKMUN, J., joined by BURGER, C. J., agreeing with WHITE, J., on the vagueness issue). Thus, even if, as the majority cryptically asserts, the statute here
*The majority attempts to underplay the conflict between its decision today and the decision last Term in Hoffman Estates v. Flipside, Hoffman Estates, Inc., by suggesting that we applied a “less strict vagueness test” because economic regulations were at issue. The Court there also found that the ordinances challenged might be characterized as quasi-criminal or criminal in nature and held that because at least some of respondent‘s conduct clearly was covered by the ordinance, the facial challenge was unavailing even under the “relatively strict test” applicable to criminal laws. 455 U. S., at 499-500.
The majority finds that the statute “contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a ‘credible and reliable’ identification.” Ante, at 358. At the same time, the majority concedes that “credible and reliable” has been defined by the state court to mean identification that carries reasonable assurance that the identification is authentic and that provides means for later getting in touch with the person. The narrowing construction given this statute by the state court cannot be likened to the “standardless” statutes involved in the cases cited by the majority. For example, Papachristou v. City of Jacksonville, 405 U. S. 156 (1972), involved a statute that made it a crime to be a “vagrant.” The statute provided:
“‘Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, . . . common drunkards, common night walkers, . . . lewd, wanton and lascivious persons, . . . common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, . . . shall be deemed vagrants.‘” Id., at 156-157, n. 1.
In Lewis v. City of New Orleans, 415 U. S. 130, 132 (1974), the statute at issue made it a crime “‘for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.‘” The present statute, as construed by the state courts, does not fall in the same category.
The statutes in Lewis v. City of New Orleans and Smith v. Goguen, supra, as well as other cases cited by the majority clearly involved threatened infringements of First Amend-
Of course, if the statute on its face violates the Fourth or Fifth Amendment—and I express no views about that question—the Court would be justified in striking it down. But the majority apparently cannot bring itself to take this course. It resorts instead to the vagueness doctrine to invalidate a statute that is clear in many of its applications but which is somehow distasteful to the majority. As here construed and applied, the doctrine serves as an open-ended authority to oversee the States’ legislative choices in the criminal law area and in this case leaves the State in a quandary as to how to draft a statute that will pass constitutional muster.
I would reverse the judgment of the Court of Appeals.
Notes
“Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . . (e) Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.” We have not in recent years found a state statute invalid directly under the Fourth Amendment, but we have long recognized that the government may not “authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct.” Sibron v. New York, 392 U. S. 40, 61 (1968). In Sibron, and in numerous other cases, the Fourth Amendment issue arose in the context of a motion by the defendant in a criminal prosecution to suppress evidence against him obtained as the result of a police search or seizure of his person or property. The question thus has always been whether particular conduct by the police violated the Fourth Amendment, and we have not had to reach the question whether state law purporting to authorize such conduct also offended the Constitution. In this case, however, appellee Edward Lawson has been repeatedly arrested under authority of the California statute, and he has shown that he will likely be subjected to further seizures by the police in the future if the statute remains in force. See Los Angeles v. Lyons, ante, at 105-109; Gomez v. Layton, 129 U. S. App. D. C. 289, 394 F. 2d 764 (1968). It goes without saying that the Fourth Amendment safeguards the rights of those who are not prosecuted for crimes as well as the rights of those who are.
In addition, the Solomon court appeared to believe that both the Terry detention and frisk were proper under the standard for Terry detentions, and since the frisk was more intrusive than the request for identification, the request for identification must be proper under Terry. See 33 Cal. App. 3d, at 435, 108 Cal. Rptr., at 870-871. The Ninth Circuit observed that the Solomon analysis was “slightly askew.” 658 F. 2d, at 1366, n. 9. The court reasoned that under Terry, the frisk, as opposed to the detention, is proper only if the detaining officer reasonably believes that the suspect may be armed and dangerous, in addition to having an articulable suspicion that criminal activity is afoot. In Brown we had no need to consider whether the State can make it a crime to refuse to provide identification on demand during a seizure permitted by Terry, when the police have reasonable suspicion but not probable cause. See 443 U. S., at 53, n. 3.
“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government.” When law enforcement officers have probable cause to believe that a person has committed a crime, the balance of interests between the State and the individual shifts significantly, so that the individual may be forced to tolerate restrictions on liberty and invasions of privacy that possibly will never be redressed, even if charges are dismissed or the individual is acquitted. Such individuals may be arrested, and they may not resist. But probable cause, and nothing less, represents the point at which the interests of law enforcement justify subjecting an individual to any significant intrusion beyond that sanctioned in Terry, including either arrest or the need to answer questions that the individual does not want to answer in order to avoid arrest or end a detention.
No authority cited by the dissent supports its argument about facial challenges in the arbitrary enforcement context. The dissent relies heavily on Parker v. Levy, 417 U. S. 733 (1974), but in that case we deliberately applied a less stringent vagueness analysis “[b]ecause of the factors differentiating military society from civilian society.” Id., at 756. Hoffman Estates, supra, also relied upon by the dissent, does not support its position. In addition to reaffirming the validity of facial challenges in situations where free speech or free association are affected, see 455 U. S., at 494, 495, 498-499, the Court emphasized that the ordinance in Hoffman Estates “simply regulates business behavior” and that “economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow.” Id., at 499, 498.