Waldron v. McAtee

• Decision Date: 19 January 1983
• Docket Number: No. IP 81-750-C.,IP 81-750-C.
• Citation: 556 F. Supp. 101
• Parties: Gary WALDRON, Plaintiff, v. Joseph McATEE, as Chief of Police of the Indianapolis Police Department, William Hudnut, as the Mayor of the City of Indianapolis; and the Marion County City-County Council, Defendants.
• Court: U.S. District Court — Southern District of Indiana

556 F. Supp. 101

Gary WALDRON, Plaintiff, v. Joseph McATEE, as Chief of Police of the Indianapolis Police Department, William Hudnut, as the Mayor of the City of Indianapolis; and the Marion County City-County Council, Defendants.

No. IP 81-750-C.

United States District Court, S.D. Indiana, Indianapolis Division.

January 19, 1983.

Richard L. Zweig, Indianapolis, Ind., for plaintiff.

John P. Ryan, Corp. Counsel, Indianapolis, Ind., Mark Dall, Stephen E. Schrumpf, Asst. Corp. Counsels, for defendants.

FINDINGS OF FACT CONCLUSIONS OF LAW AND JUDGMENT

HOLDER, District Judge.

This matter comes before the Court on the plaintiff's motion for summary judgment of February 9, 1982 and on the defendants' March 22, 1982 cross-motion for summary judgment on the issues of the July 13, 1981 complaint and the September 17, 1981 answer consisting of two defenses thereto. The parties rested on the briefs filed in support of their respective motions and declined to file any additional pleadings on the matter. The Court being duly advised in the premises, does now submit its ruling.

Joseph McAtee is the Chief of Police of the Indianapolis Police Department; William Hudnut is the Mayor of the City of Indianapolis, Indiana; the Marion County City-County Council is the duly authorized legislative arm of the Consolidated City of Indianapolis-Marion County, Indiana.

On November 1, 1980 the plaintiff, an adult citizen of Marion County, Indiana and two companions were confronted by three members of the Indianapolis police force in front of the Marion County Public Library, located in the downtown section of Indianapolis, at approximately midnight. The policemen asked the three to explain why they were in that particular spot at that particular hour of the night and informed them that they were violating the loitering ordinance then in effect in Indianapolis. The plaintiff challenged the power of the officers to detain the group, and the hour-long discussion ended with the plaintiff being threatened with arrest for disorderly conduct if he did not leave the scene immediately. The plaintiff was also told that if he was seen in the neighborhood at night he would be arrested for loitering. No arrests resulted from the interchange.

The plaintiff instituted this action on July 13, 1981 seeking a declaration that the Indianapolis loitering ordinance, Title 20, Section 20-9 of the Code of Indianapolis and Marion County (the Act), is unconstitutionally vague and overbroad. The action was brought under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, and also seeks an injunction against the enforcement of the Act, as well as attorney's fees under 42 U.S.C. § 1988. A copy of the Act is attached hereto as Exhibit A and by such reference incorporated herein.

To invoke federal declaratory relief, the plaintiff must demonstrate the existence of a case or controversy within the Federal Constitution and the Declaratory Judgment Act. In this instance, he must show a genuine, credible threat that he might be arrested and charged with loitering under the Act. The plaintiff in this case has made such a showing. Because no arrest was made under the Act, however, there is no basis to determine the constitutionality of the Act as applied in the plaintiff's particular case. Accordingly, this Court will confine its analysis to a facial evaluation of the challenged terms of the Act to determine whether they are so vague and indefinite as to render the Act unconstitutional, and also as to whether the Act is so broad as to infringe upon the rights secured by the First Amendment.

The Act proscribes loitering in such a manner that creates, or causes to be created, either 1) "danger of a breach of the peace"; 2) the unreasonable danger of a "disturbance to the comfort and repose of any person acting lawfully"; 3) the obstruction, or attempted obstruction, of vehicular or pedestrian traffic; or 4) the obstruction, molestation, or interference with persons so as to cause those persons to fear for their safety. The Act specifically does not permit a person to "loiter or prowl" in a place, "at a time or in a manner not usual for law abiding citizens," under circumstances warranting a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. An arrest is authorized only after the person either refuses to obey a police officer's lawful command to move on or refuses to give the officer a lawful reason for remaining on the public way. Attempted flight from an identified police officer, attempted concealment from the officer, or refusal to provide identification will also authorize an arrest. The Act is, essentially, in two identical parts, the first directed at the conduct of individuals and the second directed at the conduct of groups of three or more persons.

The plaintiff attacks the passages of the Act that are quoted in the above paragraph as being so vague as to fail to inform the person of average intelligence of what conduct is proscribed by the Act or, in the case of the phrase "danger of a breach of the peace," that it is so indefinite as to delegate to police officers the power to determine what conduct is illegal and to enforce the Act arbitrarily and discriminatorily. In addition to these claims, which are grounded in the Due Process Clause of the Fourteenth Amendment, the plaintiff asserts that the ordinance is so broad as to reach conduct, speech and assembly, that is protected by the First Amendment.

The Indiana Supreme Court has not authoritatively interpreted the Act; therefore, this Court must give the Act the interpretation that it most likely would have received by the state's highest court. Abstention is inappropriate in this instance.

The Due Process Clause of the Fourteenth Amendment provides that no "State shall deprive any person of life, liberty or property without due process of law." As a matter of due process, a criminal statute must give a person of common intelligence fair notice that certain behavior is forbidden by law, and the statute must not be so indefinite as to encourage erratic and arbitrary arrests or convictions. Where the offense is difficult to define, or where it is difficult to lay down a rule of conduct in more exact terms which would at the same time cover all of the varying conditions, the statute is not unconstitutionally vague so long as the general area of conduct against which the statute is directed is made plain. The entire text of the statute may furnish an adequate standard of definiteness and words which have well settled common law meanings can be used. A construction that is narrower than the literal meaning of the language of the law can be used to save the statute, but the court must give the language its fair meaning in accord with the evident intention of the legislature. If any reasonable and practical construction can be given, the law's language cannot be held void. There is a strong presumptive validity of legislation, and a statute is not vague just because it is difficult to determine whether certain marginal offenses fall within the law. If the general class of offenses at which the act is aimed can be made constitutionally definite by a reasonable construction of the statute, that construction must be applied; all that is necessary is that the statute's language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.

While the Indiana Supreme Court has not considered the constitutionality of a loitering statute that is challenged as facially vague and overbroad, it has held that a penal statute must be sufficiently explicit so as to inform individuals of common intelligence as to what the consequences of their contemplated conduct will be. A statute is to be presumed constitutional, but must be strictly construed against the state. The act need not, however, be construed so narrowly as to exclude cases fairly covered by it, and if the language supports a construction which is constitutional, that construction must be adopted. Under the common law of the State of Indiana, constitutional challenges to laws on the basis of vagueness must prove that the statute in question has no reasonable basis and that the law is incapably applied to any factual situation.

An ordinance making the sole act of loitering, or prowling, a crime would unquestionably violate the Due Process Clause. The Act, however, only prohibits loitering or prowling under certain circumstances, and then only when certain results occur. The words "loiter or prowl" have by long usage acquired common and accepted meanings. To loiter is to dawdle, to be dilatory, to delay, to linger, to saunter, or to stand or spend time idly. Black's Law Dictionary 849 (5th ed. 1979); Webster's Dictionary of the English Language Unabridged Encyclopedic Edition 1064 (1977). To prowl is to rove or wander in a stealthy manner in search of prey, or to rove or wander stealthily particularly for prey. Id. at 1450. The use of general terms does not render an act unconstitutional, and loitering or prowling under described conditions may validly be included within an offense. Analysis of the entire text of the Act, giving the language its fair meaning in accord with the evident intention of the legislature and applying a reasonable and practical construction, makes plain the general area of conduct at which the Act is aimed.

One of the conditions which must exist before a person's loitering or prowling falls within the Act is that it must occur "at a time or in a manner not usual for law abiding citizens." While the general area of conduct at which the Act is aimed is plain, it is difficult to lay down a rule of conduct in more exact terms which would at the same time cover all of the varying circumstances which may lead to a violation of the Act. 26 U.S.C. § 7201, part of the Internal Revenue Code of 1954, provides that a person who attempts to...