Kolender v. Lawson

The decision surprised legal observers because it demanded greater specificity in the language of a loitering statute than it had required in the language of other criminal statutes in prior cases.

Edward Lawson, a self-described "walker by temperament," was arrested or detained by police approximately 15 times between March of 1975 and January of 1977 for violating a California disorderly conduct statute. The statute made it a crime--disorderly conduct--for a person to loiter on the street and refuse to identify himself and provide an account for his presence to a police officer "if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification." After being prosecuted twice and convicted once, Lawson brought a civil suit in a California federal court seeking a judgment from the court declaring the statute unconstitutional and an injunction to keep law enforcement from enforcing the statute. Lawson also sought damages from the various police officers who detained him.

The district court held for Lawson, but refused to award any damages. Both Lawson and the defendants appealed to the U.S. Court of Appeals for the Ninth Circuit. The appeals court affirmed the holding in favor of Lawson and reversed the ruling on the damages and sent the case back to the trial court for a jury trial. According to the appeals court, the statute was unconstitutional under the Fourth Amendment's prohibition of unreasonable searches and seizures, the statute contained an unconstitutionally vague enforcement standard that could lead to arbitrary enforcement by police, and it failed to give persons fair and adequate notice of the kind of conduct that was prohibited by the statute. The police officers, through the state of California, appealed the ruling on the constitutionality of the statute and the injunction against the statute's enforcement to the U.S. Supreme Court.

By a vote of 7-2, the High Court upheld the ruling. In analyzing Lawson's claim, the Court, quoting legal analyst M. Cherif Bassiouni, pronounced that the U.S. Constitution was "designed to maximize individual freedoms within a framework of ordered liberty." Courts had to look at statutes to make sure that both the form and substance of the statutory limitations on individual freedoms did not violate the Constitution. Lawson had claimed that the statute was facially invalid under the Due Process Clause of the Fourteenth Amendment because it was too vague. This caused the Court to look at the "void-for-vagueness" doctrine, which, according to prior case law, required that a criminal statute define the criminal offense "with sufficient definiteness" so that ordinary people and law enforcement personnel would know what conduct was proscribed or mandated. Furthermore, in passing a criminal statute, a legislature had to create "`minimal guidelines'" to govern police officers and prevent police sweeps that allow "`policemen, prosecutors, and juries to pursue their personal predilections.'"

The loitering provision in the California disorderly conduct statute, observed the Court, contained "no standard for determining what a suspect ha[d] to do in order to satisfy the requirement to provide a `credible and reliable' identification." This being the case, the statute vested too much discretion in police officers to determine whether someone has satisfied the identification and account requirements and is free to walk away in the absence of any probable cause to believe that the person has committed a crime. Even if police officers did not have probable cause to make an arrest, a person was entitled to walk the public streets under California's loitering statute "`only at the whim of any police officer'" who happened to find the person suspicious Shuttlesworth v. City of Birmingham 1965.

The Court expressed concern about the arbitrary suppression of First Amendment liberties and "the constitutional right to freedom of movement." In the past, the Court had approved of statutes that required persons to stop and identify themselves. In this case, though, the challenged statute required persons to actually carry "`credible and reliable' identification that carries a `reasonable assurance' of its authenticity, and that provides `means for later getting in touch with the person who has identified himself.'" Moreover, the suspect also could be required to account for his presence "`to the extent it assists in producing credible and reliable identification.'" If a police officer was not satisfied with the reliability of the identification provided by the suspect, then the suspect was considered in violation the statute and was guilty of misdemeanor disorderly conduct.

To avoid punishment under the loitering statute, the state explained that a person had only to recite his or her name and address to the questioning officer. In the alternative, the person could answer a series of questions about the route the person took to arrive at the point where he or she was detained. The High Court acknowledged that police officers have the right to stop people and ask them questions, and the Court admitted that the initial detention under the statute was justified. However, the state had failed to establish guidelines for the police officers to determine if a suspect had complied with the identification requirement. Quoting Papachristou v. City of Jacksonville (1972) and Thornhill v. Alabama (1940), the Court considered the California statute "a convenient tool for `harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.'" Ultimately, the High Court held that the statute was unconstitutionally vague because it "encourage[d] arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute." In a footnote closing the majority opinion, Justice O'Connor noted that the Court had struck down the loitering provision in the statute on the first possible constitutional question; there were several other constitutional questions about the statute with which the Court had not even bothered.

Justice Brennan wrote a lengthy concurring opinion. Brennan agreed with the majority's decision that the statute was unconstitutionally vague. However, he would have gone farther to hold that even if the statute were not unconstitutionally vague, it would be invalid under the Fourth Amendment prohibition against unreasonable searches and seizures. Brennan reminded the Court of the well settled proposition that under Fourth Amendment jurisprudence, a police officer must have probable cause to believe that a person has committed a crime before seizing, detaining, or searching that person. However, there are exceptions to this basic rule. Citing Terry v. Ohio (1968) and its progeny, Brennan allowed that, in the context of the seizure of a person, a police officer may stop a person and question that person for a brief period of time and conduct a brief frisk of that person. An officer may do this only when the officer has a reasonable suspicion, based on articulable facts, that criminal activity is afoot.

The stop-and-frisk exception to the requirement of probable cause was, said Brennan, "a powerful tool for the investigation and prevention of crimes." The exception allowed police to do "far more" than "direct[ing] a question to another person in passing." Police officers can have a coercive effect on a person with such devices as "an official `show of authority,' the use of physical force to restrain him, and a search of the person for weapons." Indeed, Brennan noted, in most of the cases that the Court had seen that dealt with police stops, few people felt "free not to cooperate fully with the police by answering their questions," even when cooperation risked their liberty. Because they intrude on individual interests protected by the Fourth Amendment, such seizures must be "strictly circumscribed, to limit the degree of intrusion they cause." The length of time for the stop must be brief, unless evidence of criminal activity is detected; the suspect must not be moved more than a short distance; physical searches must be a limited pat-down for weapons; and, "most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him . . . Should a police officer fail to observe these limitations," Brennan lectured, "the stop becomes an encounter that is justified only if the police officer has probable cause to believe a crime has been committed, as opposed to a mere reasonable belief that criminal activity is afoot."

The intrusion into persons' lives authorized by the loitering statute, Brennan surmised, had not been justified by the state. A pedestrian who asserted his or her Fourth Amendment rights under the statute could look forward to "new acquaintances among jailers, lawyers, prisoners, and bail-bondsmen, first-hand knowledge of local jail conditions, a `search incident to arrest,' and the expense of defending against a possible prosecution." Brennan concluded that "[m]ere reasonable suspicion does not justify subjecting the innocent to such a dilemma."

Justice Rehnquist joined a dissenting opinion written by Justice White. The dissenters attacked the majority's application of the void-for-vagueness doctrine, arguing that it had held the state of California's loitering statute to a higher standard of clarity than it had set for other criminal statutes it had examined. The dissenters disagreed with the majority's interpretation of the cases that the majority had cited in support of its holding, and objected to the invalidation of "a statute that is clear in many of its applications but which is somehow distasteful to the majority." The majority's decision, according to the dissent, left California "in a quandary as to how to draft a statute that will pass constitutional muster."