658 F.2d 1362 (9th Cir. 1981), 79-3629, Lawson v. Kolender

Docket Nº:79-3629, 79-3633, 79-3641, and 79-3685.
Citation:658 F.2d 1362
Party Name:Edward LAWSON, Plaintiff-Appellee, v. William KOLENDER, in his capacity as Chief of Police of San Diego, John Duffy, in his capacity as Sheriff of San Diego County, et al., Defendants-Appellants, and H. A. Porazzo, in his capacity as Deputy Chief Commander of the California Highway Patrol, Defendant-Appellant.
Case Date:October 15, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1362

658 F.2d 1362 (9th Cir. 1981)

Edward LAWSON, Plaintiff-Appellee,


William KOLENDER, in his capacity as Chief of Police of San

Diego, John Duffy, in his capacity as Sheriff of

San Diego County, et al., Defendants-Appellants,


H. A. Porazzo, in his capacity as Deputy Chief Commander of

the California Highway Patrol, Defendant-Appellant.

Nos. 79-3629, 79-3633, 79-3641, and 79-3685.

United States Court of Appeals, Ninth Circuit

October 15, 1981

Argued and Submitted May 6, 1981.

Page 1363

Robert H. Lynn, San Diego, Cal., Lucas Guttentag, Center for Law in the Public Interest, Los Angeles, Cal., for Lawson.

A. Wells Peterson, John W. Wood, Deputy City Atty., Paul F. Sowa, Duffy, Larson, Sanchez & Moulton, San Diego, Cal., for Kolender.

Appeal from the United States District Court for the Southern District of California.

Before FERGUSON and BOOCHEVER, Circuit Judges, and REDDEN, [*] District Judge.

BOOCHEVER, Circuit Judge.

This case involves the constitutionality of section 647(e) of the California Penal Code, 1 a vagrancy statute, and whether a pro se litigant has a right to jury trial in spite of his failure to file proposed jury instructions seven days in advance of trial as required by local rules of court.

On approximately fifteen occasions between March, 1975 and January, 1977, Edward Lawson was stopped by law enforcement officials. On each occasion, he was detained or arrested on the basis of California Penal Code § 647(e). Lawson was prosecuted only twice for the alleged offenses; one resulted in dismissal, the other in conviction. Lawson filed a complaint seeking: (1) a declaratory judgment that section 647(e) is unconstitutional; (2) a mandatory injunction restraining the enforcement of the section; and (3) compensatory and punitive damages against the various officers who arrested him because they deprived him of his constitutional rights.

Following a trial, the district court filed a memorandum opinion and judgment. The district court found that the statute was

Page 1364

overbroad, noting that "a person who is stopped on less than probable cause cannot be punished for failing to identify himself." The court therefore enjoined enforcement of the statute. The court held, however, that Lawson could not recover damages because each officer had a good faith belief that each "contact and/or arrest was lawful." H. A. Porazzo, the named state official, appeals contending that the statute is constitutional. 2 Lawson cross-appeals contending that the district court erred in denying him a jury trial. We affirm the district court ruling that the statute is unconstitutional but reverse the court's denial of a jury trial.



1. Introduction

In Powell v. Stone, 507 F.2d 93 (9th Cir. 1974), rev'd on other grounds, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), we struck down a vagrancy ordinance from Henderson, Nevada, that was virtually identical to section 647(e). The ordinance was void for vagueness both because it failed to give a person of ordinary intelligence fair notice that his contemplated conduct was forbidden and because it encouraged arbitrary and erratic arrests and convictions. Id. at 95. We also held that the ordinance violated the fourth amendment by permitting arrests without probable cause. Id. at 96. See also Anderson v. Nemetz, 474 F.2d 814, 817 (9th Cir. 1973). For the reasons expressed in Powell, section 647(e) is also unconstitutional unless the California appellate courts have authoritatively construed the statute so as to cure its defects. We will assess the constitutionality of the statute in light of the California courts' interpretations of it. 3

The California courts have considered the constitutionality of section 647(e) on several

Page 1365

occasions. Each time the statute has been upheld. 4 The most recent and extensive discussion is contained in People v. Solomon, 33 Cal.App.3d 429, 108 Cal.Rptr. 867 (1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1476, 39 L.Ed.2d 567 (1974). Solomon held that section 647(e) did not violate the federal constitution because: (1) it was not vague, 33 Cal.App.3d at 435-36, 108 Cal.Rptr. 867; (2) the requirement of identification did not infringe upon the right to be free from unreasonable searches and seizures, id. at 436, 108 Cal.Rptr. 867; (3) the identification requirement did not violate the right against self-incrimination, id. at 436-38, 108 Cal.Rptr. 867; and (4) the statute was not invalid as susceptible to arbitrary enforcement, id. at 438-39, 108 Cal.Rptr. 867.

Section 647(e) 5 contains three essential elements: (1) loitering on the streets; (2) refusal to identify and account for one's presence on request by a police officer; and (3) in circumstances involving public safety. The courts have placed the following limitations on the essential elements. "Loitering" means "lingering in ... designated places for the purpose of committing a crime as opportunity may be discovered", while "wandering" means "movement for evil purposes." People v. Caylor, 6 Cal.App.3d 51, 56, 85 Cal.Rptr. 497, 501 (1970). The term "identification and accounting" is not satisfied by mere identification but "comprehends a genuine identification ... carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself." Solomon, 33 Cal.App.3d at 438, 108 Cal.Rptr. 867. 6 The phrase "surrounding circumstances ... indicate to a reasonable man that public safety demands such identification" is comparable to the standard set forth in Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), justifying a brief detention. Solomon, 33 Cal.App.3d at 435, 108 Cal.Rptr. 867.

We must decide whether the statute as interpreted by the California courts violates the vagueness doctrine 7 because: (1) it is in

Page 1366

violation of the fourth amendment proscription against searches and seizures; (2) it contains a vague enforcement standard which is susceptible to arbitrary enforcement; or (3) it fails to give fair and adequate notice of the type of conduct prohibited. We will address each issue separately.

2. Fourth Amendment

The statute, in essence, requires a person to provide reliable identification when requested by a police officer who has a reasonable suspicion of criminal activity under the standard of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 8 Whether such a requirement violates the fourth amendment's proscription against unreasonable searches and seizures was specifically left open by the Supreme Court's decision in Brown v. Texas, 443 U.S. 47, 53 n.3, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979) (holding that a person could not be required to furnish identification if not reasonably suspected of any criminal conduct).

Because Terry approved a more substantial intrusion upon the person (a limited patdown search for weapons) when a police officer possesses "articulable suspicion less than probable cause," 392 U.S. at 31, 88 S.Ct. at 1885, the Solomon court concluded that a temporary detention followed by a request for identification also was justifiable. 9 33 Cal.App.3d at 435-37, 108 Cal.Rptr. 867. The Solomon court applied the Terry test by balancing the public interest with the individual's right to personal security free from arbitrary interference by law officers. It found that "the public need involved, protection of society against crime, is strong, while the individual right involved, anonymity when loitering on the streets under suspicious circumstances, is weak." 33 Cal.App.3d at 436-37, 108 Cal.Rptr. 867.

Although the prevention of crime is "a weighty social objective," Brown, 443 U.S. at 52, 99 S.Ct. at 2641, we agree with the courts and commentators who have concluded that statutes like section 647(e), which require the production of identification, are in violation of the fourth amendment. The two reasons for this conclusion are that as a result of the demand for identification, the statutes bootstrap the authority to arrest on less than probable cause, 10 and the serious

Page 1367

intrusion on personal security outweighs the mere possibility that identification may provide a link leading to arrest.

The first reason was explained by the Second Circuit when it considered a New York vagrancy statute which, as written, was very similar to section 647(e) as construed by the Solomon court. 11 United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1171-74 (2d Cir. 1974), aff'd sub nom. Lefkowitz, Attorney General of New York v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). In finding the statute unconstitutional, the Newsome court noted that such vagrancy statutes "conflict with the deeply rooted Fourth Amendment requirement that arrests must be predicated on probable cause." Id. at 1172.

As we stated in Powell, this vagrancy ordinance subverts the probable cause requirement.

It authorizes arrest and conviction for conduct that is no more than suspicious. A legislature could not reduce the standard for arrest from probable cause to suspicion; and it may not accomplish the same result indirectly by making suspicious conduct a substantive offense. Vagrancy statutes do just that, for they authorize arrest and conviction for the vagrancy offense if there are reasonable grounds to suspect that the accused may have committed, or if left at large will commit, a more serious offense. Police are duty-bound to investigate suspicious conduct, and founded suspicion will support an investigative stop and inquiry. But more is required to justify arrest.

507 F.2d at 96 (citations omitted). Other courts considering similar statutes have reached the same conclusion. 12 Vagrancy ordinances cannot turn otherwise innocent conduct into a crime.

The second reason why we believe section...

To continue reading