Arnold v. City and County of Denver, 24189
| Decision Date | 12 January 1970 |
| Docket Number | No. 24189,24189 |
| Citation | 464 P.2d 515,171 Colo. 1 |
| Parties | Charles J. ARNOLD, a/k/a Mark Moore, Petitioner, v. The CITY AND COUNTY OF DENVER, Respondent. |
| Court | Colorado Supreme Court |
William F. Reynard, William F. Schoeberlein, Denver, for petitioner.
Max P. Zall, Lee G. Rallis, Robert D. Dowler, Denver, for respondent.
The petitioner was the defendant in the trial court and will be so referred to. He was convicted in the county court under a portion of Denver's vagrancy ordinance. After the conviction was affirmed by the superior court, he sought--and we granted--certiorari for a consideration of constitutionality of the applicable section of the ordinance. We find it unconstitutional.
At or about 4:00 a.m. on September 5, 1967, a Denver city policeman was patrolling a high crime rate area. He was contacted by an individual who informed him that the defendant had been observed 'trying doors' to the various business establishments as he walked along Colfax Avenue. The officer sought to intercept the defendant and, as his police car approached, the defendant seemed to change directions abruptly. The officer then drove around the block until he could again observe the defendant. The defendant appeared to be looking into automobiles as he walked along the street, and he seemed to slow his pace as he came to each vehicle. As the officer attempted again to intercept the defendant, the latter again changed directions.
The officer then overtook defendant and attempted to question him. To the officer the defendant's eyes appeared glassy and his pupils dilated. The defendant revealed that he was a licensed minister of the gospel and gave his home address. He refused, however, to state his name, insisting that he had no obligation to do so. The defendant was taken to the police station and was there held incommunicado until 7:40 a.m., at which time he was advised that the only reason for his detention was that he refused to state his name. He then stated his name, and promptly thereafter he was charged with vagrancy.
We granted certiorari in this matter to determine whether recent decisions, including Goldman v. Knecht, D.C., 295 F.Supp. 897 might persuade us to overrule our Dominguez v. City and County of Denver, 147 Colo. 233, 363 P.2d 661. Dominguez, decided in 1961, held that the ordinance under which the present defendant was charged was not violative of due process. Goldman, decided by a 3-judge federal district court in Colorado, declared Colorado's vagrancy statute (C.R.S.1963, 40--8--19) unconstitutional as being violative of both the due process and equal protection clauses of the Fourteenth Amendment.
The statute involved in Goldman and the portion of the ordinance here involved, with comparable provisions placed in approximate juxtaposition, are as follows:
Statute
'Any person able to work and support himself in some honest and respectable calling, who shall be found loitering or strolling about, frequenting public places, or where liquor is sold, begging or leading an idle, immoral or profligate course of life, or not having any visible means of support, shall be deemed a vagrant, * * *.' C.R.S.1963, 40--8--19.
Section 824 Revised Municipal Code of City and County of Denver, Series of 1950 as amended.
Goldman held substantially the following: (1) that the terms 'loitering or strolling about,' 'frequenting public places, or where liquor is sold,' 'begging or leading an idle, immoral, or profligate course of life,' and 'not having any visible means of support' are unconstitutionally vague; (2) that the statute discriminates between classes of persons in violation of the equal protection clause; and (3) that it unconstitutionally makes status or condition (as distinct from behavior) a crime. In Dominguez, supra, this court construed the present ordinance in terms of status. It was there stated, 'As the ordinance under study expressly recognizes, vagrancy is a crime of condition or status.'
If condition or status were all that is involved in the only portion of the ordinance under consideration, we would regard Goldman as persuasive as to the unconstitutionality of the ordinance under the Fourteenth Amendment of the United States Constitution. See also Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. It will be observed, however, that the ordinance involves Behavior as well as Status. The duty under the ordinance for a person to give 'a satisfactory account of himself' is a matter of behavior. Goldman recognized a possibility of constitutionality if action of a person is coupled with...
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